The government is generally free to provide broadly available student scholarships that students may use at any institution, religious or secular. Such generally available funding programs don't violate the Establishment Clause, though some earlier Supreme Court decisions had held the contrary.
The government is, however, also free to decide to limit such scholarships in certain ways, even when those ways discriminate against religious uses: The Supreme Court has held (in Locke v. Davey) that the government may exclude devotional theology majors from otherwise generally available scholarships, and that this discrimination against religious uses doesn't violate the Free Exercise Clause. The question that Locke leaves open is just what other kinds of exclusion of religious uses from generally available programs are constitutional.
The federal Tenth Circuit court of appeals has just held, in Colorado Christian Univ. v. Weaver, that one thing the government may not do is distinguish between students who go to ordinarily religious institutions and students who go to "pervasively sectarian" institutions. Colorado drew such a distinction for college student scholarships, providing that the scholarships could be used at a wide range of institutions but not at "pervasively sectarian" ones, with the term being further elaborated this way:
An institution of higher education shall be deemed not to be pervasively sectarian if it meets the following criteria:
(a) The faculty and students are not exclusively of one religious persuasion.
(b) There is no required attendance at religious convocations or services.
(c) There is a strong commitment to principles of academic freedom.
(d) There are no required courses in religion or theology that tend to indoctrinate or proselytize.
(e) The governing board does not reflect nor is the membership limited to persons of any particular religion.
(f) Funds do not come primarily or predominantly from sources advocating a particular religion.
The Tenth Circuit held that this discrimination in funding violated two Establishment Clause principles: (1) It impermissibly discriminates among religions, and (2) it requires an unduly "intrusive scrutiny of religious belief and practice."
(1) To begin with, the Tenth Circuit follows Larson v. Valente, a 1982 Supreme Court case that held that the Establishment Clause is violated when a law discriminates among religions even when the discrimination focuses on the religious bodies' facially nonreligious practices -- in Larson, the fraction of contributions to the body that came from its members. Likewise, the Tenth Circuit says, distinguishing between religious institutions that are merely religious and those that are "pervasively sectarian" is a similarly forbidden discrimination. I'm not sure that Larson was correctly decided, but the Tenth Circuit's opinion seems correct given Larson.
(2) The Tenth Circuit goes on to conclude that "Even assuming that it might, in some circumstances, be permissible for states to pick and choose among eligible religious institutions, a second line of Supreme Court precedents precludes their doing so on the basis of intrusive judgments regarding contested questions of religious belief or practice" (emphasis mine). This has sometimes been described as an aspect of the prohibition on "excessive entanglement" between government and religion. And the Tenth Circuit's analysis strikes me as quite solid on the facts: Among other things, inquiring into whether theology classes "tend to indoctrinate or proselytize," into whether the governing board "reflect[s] ... any particular religion," and for that matter into whether faculty, students, trustees, or funders belong to the same "religion" or "religious persuasion" requires improper religious judgments by secular government officials.
To give just one example (and if you want more, read the opinion, which is quite readable),
CCU stated that its students, faculty, and trustees are not of a single religion, because the school is an interdenominational institution; it “unites with the broad, historic evangelical faith rather than affiliating with any specific denomination.” The state defendants took a different view: to them, all Christians are of the same religious persuasion, and denominational distinctions do not matter. The “correct” answer to that question depends on one’s ecclesiology. But under the First Amendment, the government is not permitted to have an ecclesiology, or to second-guess the ecclesiology espoused by our citizens. “Courts are not arbiters of scriptural interpretation.”The State defendants blithely assumed that they could lump together all “Christians” as a single “religion.” But the definition of who is a “Christian” can generate an argument in serious circles across the country. Some students at CCU are members of the Church of Jesus Christ of Latter-Day Saints, or “Mormons.” Members of the LDS Church stoutly insist that they are Christians, but some Christians, with equal sincerity and sometimes vehemence, say they are not. In order to administer Colorado’s exclusionary law, government officials have to decide which side in this debate is right. Similar questions plague the religious taxonomy of Jehovah’s Witnesses, Christian Scientists, Unitarian-Universalists, various syncretistic groups and even (in some circles) the Roman Catholic Church.
To make matters worse, the Commission has (no doubt without animus) applied different standards to different religious traditions. When confronted with the question of whether Regis College was eligible for student scholarships, the Commission (and later the Colorado Supreme Court) focused on the particular denomination, which is Roman Catholicism, and concluded that the institution was eligible. In CCU’s case, however, the Commission focused on a broader category: all Christians....
Interestingly, as the court acknowledges, the "pervasively sectarian" vs. "merely religious" distinction that the court concludes is unconstitutional when embodied in statute was once part of the Supreme Court's own Establishment Clause doctrine. That is in fact why the statute contains such a distinction; the legislature was trying to comply with what was then the Establishment Clause requirement. But the Supreme Court has moved away from this distinction in its constitutional test, and I think the criticism of the constitutionality of this distinction as a statutory rule is quite correct.
I do not think that it's likely that the Supreme Court will review this decision -- I know of no circuit or state supreme court split on this particular question, and I think it's unlikely that the Court will see the case as either so important or so obviously wrong that it merits review without a split. I expect this case might be followed by challenges to similar statutes in other circuits, though a quick search for "pervasively sectarian" in Westlaw revealed no statutes that were quite like this one, and only a few that used the phrase at all.
I should note that the author of the decision, Judge Michael McConnell, is one of the nation's leading Establishment Clause scholars (a reputation built on his career as a law professor).
Related Posts (on one page):
- Colorado Will Not Contest the Tenth Circuit Decision on Exclusion of "Pervasively Sectarian" Universities from Scholarship Programs:
- Tenth Circuit Strikes Down Exclusion of "Pervasively Sectarian" Institutions from Government-Paid Student Scholarships:
Fuzzy perhaps, but I know perverse sects when I see it -- er, them.
Most of the criteria seems OK, though there might be some arguements about what defines "indoctrination" or "a strong commitment to academic freedom".
(a), as noted, is tricky. Perhaps "does not discrimate in admissions or employment on the basis of religion" would work?
(e) has some of the same problems as (a), largely because "reflect..any particular religion" is unclear. Maybe it should cut out that part and simply be "The governing board does not [limit membership] to persons of any particular religion"; but even that runs into the definition of "particular religion". You may need "does not discrimnate" language again.
So X draws that line. And a very smart but extremely conservative Court of Appeals judge holds that by doing so, it is discriminating against the indoctrinating schools.
I agree with Prof. Volokh that one CAN come to this result under current establishment clause doctrine, which, as critics on the right and the left have correctly noted over the years, is incoherent.
But it isn't a good result, because it forces governments into a bind of either (a) funding the Regent Universities and Liberty Universities of the world, which are basically churches dressed up in academic trappings and are not committed to academic values of truth seeking and dissent; or (b) denying funding to the USC's of the world, which are religiously-affiliated but committed to the goals of academia.
Show me an American university that is "committed to academic values of truth seeking and dissent"
Brilliance. How hard is it to get a clerkship with this judge, in terms of appellate clerkships generally?
I differ with him on the Free Exercise Clause and agree with the Scalia, Hamburger, Hamilton point of view.
In some ways, its a classic example of establishment. It would be a bit like a law that permits Jews to attend university and as long as they agree not to wear yarmulkes and aren't picky about not eating pork. A little religion to add a little local color, fine, as long as it's kept light and unobtrusive. But nothing too pervasive or sectarian. Wouldn't want to encourage anything that might suggest people are actually taking their religion seriously.
This is a good point. People on both sides of most debates generally don't ask the government to distinguish one group, behavior or idea from another.
"Founded in 1880 under Methodist auspices, USC arose on land donated by a Protestant, a Catholic and a Jew. The university's first president, Rev. Marion McKinley Bovard, saw the new institution as 'Christian, yet not sectarian.' The university's formal religious affiliation with the Methodist Church continued until 1928, at which time the university created its own board separate from the church; however, until 1952, fifty one percent of that board had to be Methodist."
I see two paths around this difficulty:
1) Stop funding all education, or
2) Limit education funding to categories defined by neutral criteria.
The problem with option #2 is, what stops any religious school from calling Bible or Koran memorization "engineering" or "medicine"?
How is that remotely relevant as to what the "state would like"?
The issue is - what is constitutional? Not "what would the state like?"
I can understand the state requiring that the institution be accredited. That just is a basic issue of competency NOT ideology.
And you are using the wrong metric. The state, in issuing scholarships is not funding PLACES. It's funding PEOPLE- specifically the student. The student is the 'decider' as to where the money goes. He is the beneficiary of the scholarship, not the school.
If I get a tax refund and choose to spend it at (insert institution here...) is the state FUNDING that institution? No. the scholarship is given to the student, NOT the institution
I agree that you can argue McConnell is correctly interpreting the Constitution.
But you are dead wrong on the policy level. Saying the money goes to students is a distinction without a difference when the money is given directly from the students to the universities. (Indeed, in some instances, the money is actually literally paid to the university and not the student.)
The problem is that the government really shouldn't have to fund Liberty University and other churches dressed up to look like universities. (And by the way, to the other commenters above: any conservative who thinks that Yale is ideological and not committed to seeking the truth in the same sense that Liberty is ideological and not committed to seeking the truth simply doesn't know anything about higher educational institutions and shouldn't comment on them.)
McConnell may or may not be right on the law (as I said, Establishment Clause doctrine is totally incoherent), but the result is either the government has to stop funding scholarships to private universities (bad) or it has to pour education funding directly into the coffers of people who are engaging in the polar opposite of education (also bad).
It's like insurance. Protect minority rights while you're in the majority, and you're more likely to enjoy protection when you're not.
It's usually conservatives who remind us that government funding decisions are not the same thing as impositions on freedoms (see, e.g., the National Endowment for the Arts controversy).
Denying Liberty indoctrinees scholarships doesn't impinge on their rights in any way. And comparisons between decisions not to fund educational institutions that don't practice education and slavery are offensive and ridiculous.
Recall, Carolene Products footnote 4 treated religion as one of the central notions behind the anti-discrimination principle. Given that, a case such as this seems to me to be better analyzed under such principles, rather than trying to fit it into an "establishment" clause principle (just as cases treating zoning issues involving churches would be better analyzed under a nondiscrimination principle than under a free exercise rationale).
McConnell may reach the right result, but he needs to do so by characterizing a discrimination against religions as an "establishment" clause violation, which is somewhat backwards. Doing so suggests, to me, that the available tools are too narrowly conceived.
It's relevant on a policy level because there's a big difference between, say, a tax refund check (which you are free to spend any way you want) and a scholarship (which you may only spend at particular institutions). And the policy question is whether it's a good idea to exclude churches masquerading as universities from the places where it can be spent, and the answer is yes, it's a good idea.
Whether it is constitutional is really complicated, because Establishment Clause doctrine is such a mess.
I realize that this site has a Libertarian outlook, and Libertarians are not known for their religious orientation. Libertarians are vigorous advocates of free speech. However, I wonder how long it would be if a commenter made repeated references to a certain dusky race of people by identifying them as “N…..s” before some action would be taken?
Dilan Esper has made it a habit of disparaging conservative Christians, in effect assigning them to the religious version of a ghetto. He has stated that Regent and Liberty Universities are not really educational institutions, but instead are “churches dressed up in academic trappings and are not committed to academic values of truth seeking and dissent.”
That may be one man’s opinion but because these are accredited institutions of higher education, they are ignorant, bigoted and objectionable.
If I find myself in the company of people who make racist comments, I leave. But I know what kind of people who stay are and share their own racist jokes are; ditto for the kind of juveniles who tell each other smutty stories. Toleration of these things tells me a lot about the group. This blog and many others form a kind of society. The comments of its members and what is tolerated without objection defines the society.
The disclaimer at the end of the comments seem to be treated much the same way as the prospectus of a mutual fund: nobody reads it and most ignore it. The proprietors of this site should do a little more to protect its reputation.
Nor do I see why even criticisms of wider religious groups are tantamount to racism. Racism is faulted precisely because people's skin color is not inherently linked to their beliefs. People's religions are inherently linked to their beliefs, and criticisms of such beliefs and those who hold them can be quite sensible (though of course, as I said above, particular criticisms might be unsound).
And it is usually liberals who remind us that:
(a) Individual choice is paramount. Is a woman choosing to have an abortion vs. her husband forcing her to a distinction without a difference? After all the outcome is the same. I fail to see why the student's choice of where to pursue her studies is any less relevant.
(b) Bigotry is a mortal sin. I'm not comparing funding decisions to slavery, I'm comparing your dehumanization of Liberty students (did you happen to follow the link in my last post?) to the very similar dehumanization that made the maintenance of the peculiar institution possible for so long after the founding of a Republic whose principles it clearly contradicted.
BTW, it was people very similar to today's Liberty students who fought most passionately then for slavery's abolition, and also suffered similar bigotry.
First of all, thanks to Professor Volokh for the defense of free speech. I should add that his defense applies equally to conservative Christians who want to criticize secular types.
Second, I think that there's a confusion here between (1) hatred Christian conservatives because of their religious belief, which I abhor and condemn, and (2) opposing Christian conservative political goals.
One political goal of Christian conservatives is to discredit the system of secular education as nothing more than an ideological straitjacket imposed by liberals, and more narrowly, to promote alternative conservative Christian collegs where doctrines that they disagree with are not taught and traditional concepts of academic freedom are restricted or eliminated.
I oppose that political goal. While conservative Christian groups are free to create their own universities where the central academic principles of peer reviewed scholarship, academic freedom, and diversity and dissent are not upheld, I don't believe that these institutions should be treated by governments as equivalent to traditional academic institutions. Not because they are Christian-- plenty of Christian denominations run or affiliate with institutions that follow traditional academic norms and should be funded, and I would oppose funding a Muslim or Jewish or Scientologist equivalent to Liberty or Regent.
I think traditional academic institutions have a great value to our society, that this value arises in part from concepts of academic freedom, peer review, and freedom to dissent, and I oppose any policy that affords any sort of prestige or support or equivalence to institutions that claim to be colleges or universities but do not uphold these policies.
Many conservatives tell themselves, of course, that the entire world of higher education is no different than Liberty or Regent in its demands for ideological rigidity and closed-mindedness. But that's a falsehood, and fighting that falsehood is part of why I oppose aid to the Regents and Liberties of the world.
But rest assured, my position has nothing to do with hating Christian conservatives, who have every right to participate in the political process and debate and to advocate their positions.
I am not dehumanizing Liberty students-- I am simply saying that they are attending an institution that indoctrinates, rather than an institution committed to the values of academic freedom and open inquiry.
As for the slavery analogies, you really shouldn't make them. Obviously, criticism of Liberty's pedagogy isn't the same thing as justifying slavery, on any level.
BTW, it was people very similar to today's Liberty students who fought most passionately then for slavery's abolition, and also suffered similar bigotry.
Actually, the Southern Baptist Church that Liberty was affiliated with was CREATED out of a schism due to Southern Baptists' SUPPORT for slavery. It was churches in the NORTH that spearheaded the abolition movement. Liberty's students are actually being taught by the intellectual descendants of the folks who JUSTIFIED slavery on the ground that it was in the Bible.
Certainly your measured and carefully argued response is appreciated. And rare.
I'm not familiar enough with Liberty specifically to take this much further on that line. I am however very familiar with the historical strains of Christianity as well as the current atmosphere of academia.
My sense is that Liberty is in the evangelical tradition, which in every age finds itself in disfavor among the powers-that-be, within the church and without. Those powers today are nowhere more manifest than the towers of academe, of whose fidelity to your ideals I'm afraid you are far too sanguine.
BTW, most serious critics of contemporary academia are of a classical liberal/libertarian bent and are only "Conservative" in the sense that we've abandoned the liberal/left alliance that has politicized our cherished institutions in an entirely different direction from the one which you fear, but one no less illiberal.
Eugene, this is your blog and you can tolerate anything you want, but let me respond to your comments. First, religion is not an ideology although they share some characteristics. Second, criticisms are legitimate. Making derogatory comments such as the reference to certain universities as “churches dressed up in academic trappings and are not committed to academic values of truth seeking and dissent” is not reasoned criticism, it's simply an expression of anti-religious bigotry. There was no attempt to fault Liberty or Regent on a substantive basis. It was simply an ugly put-down.
Both Regent and Liberty are unabashedly Christian colleges and I am sure – without checking the actual statistics – that many students go there because they find the other students and faculty compatible with their religious beliefs. There are too many examples of colleges and universities discriminating against the open expression of religious belief, so some students simply go to where they feel more comfortable. Many traditionally black colleges are havens for students who are more comfortable with people of their own skin color. But if I were to state that Howard is a “monochrome ghetto dressed up in academic trappings and are not committed to academic values of truth seeking and dissent” that could legitimately be called a bigoted expression of racial hostility.
Third, you seem to see a difference between racial bigotry and religious bigotry. Are you stating that blacks are blacks forever, but Christians can escape religious bigotry by renouncing their religion? Or hiding their beliefs? Or letting religious bigotry pass unremarked? Like Blacks did back in the day, when they were forced to smile and ignore racist comments like being called “boy.”?
The first blacks who objected were called uppity by some and hyper sensitive by others. So be it. This Christian is a little tired of casual slurs by bigots, even bigots who don't think they are, and - like Rosa Parks - I’m not going to put on a smile and move to the back of the bus.
Fourth, criticism of beliefs may not be as reasonable a thing as you seem to think. If I believe blue is the prettiest color, some may disagree but few would criticize. Theoretical Communism is – in a universe not inhabited by humans – a wonderful system. That its implementation has led to the world’s most evil regimes is reason to criticize its real-world application. A number of communities have been established in the US run along communist lines. Brook Farm is an example. They have all failed as communities, but I can’t criticize them in the same way I would criticize the practice of Communism in places like the USSR, China, North Korea and Cuba. I don’t mind if people believe in things that I do not such as astronaut Dr. Edgar Mitchell’s belief in aliens. It is the actions that result from these beliefs that are the legitimate objects of criticism.
In your own field of law, I have no problem with the belief that the Constitution of the United States is embodied in the corporeal forms of 9 men and women appointed to the Supreme Court. (Hughes: “The Constitution is what the judges say it is”). I have a problem when those same men and women act on that belief and re-write the poor old written Constitution to agree with their personal preferences.
I suspect that the academy has internalized its bigotry in the same way the South did during Jim Crow. Then it was possible for whites who were racists and whites who were not racists to find the "N" word acceptable because … well … everybody called them that. "Don't take it personally, Mr. Black Man, it's just the way we talk."
Of course I recognize that visually blacks can't pass for white while Christians can pass as atheists and gays can pass as straight. I am persuaded that among certain "enlightened" groups denigration of racial and sexual differences is out of bounds, but denigration of religious groups is accepted because it's part of the culture.
Your disclaimer at the bottom of your comments says "…please, also avoid rants, invective, substantial and repeated exaggeration."
I hope that my comments are neither too far off the mark nor a rant not filled with invective. And I would hope that for those who believe that displays of religious bigotry are acceptable may re-consider.
Within those bounds, if anyone want to claim that Liberty or Regent provide a poor educational experience, be my guest.
The defense of you religious slur was certainly a defense of free speech. However, this blog expressly limits speech; see the “Important note to helpful readers.” So it seems that Mr. Volokh defends certain expressions but not others. We live in an environment of limited speech (see FIRE) and I am of the opinion that people should be as careful of religious slurs as they are of any other.
Regarding your assertion that you abhor: “hatred [of] Christian conservatives because of their religious belief” I will take at face value despite the absence of evidence. I also will take at face value that you: “…oppos[e] Christian conservative political goals” as self evident.
Based on your contentions, I believe that you have a cartoon-like concept of what “Christians” believe and what those “Lumpen Christians” want. Believe it or not, Dilan, Christians are not the homogeneous “other” so easily caricatured by the non-Christian world.
Liberals in the academy have managed to discredit higher education all by themselves with absolutely no help from Christian conservatives or anyone else. I need only refer you to the Duke Lacrosse fiasco as a recent shining example, writ large, of the view that many people have of the academy as a hive of like-minded, racist, sexist and classist ideologues leavened with the rest of the see-no-evil faculty and managed by a spineless administration. A place where “… doctrines that they disagree with are not taught and traditional concepts of academic freedom are restricted or eliminated.” Oops, that’s how you characterized evangelical Christian colleges.
Again to borrow a few of your phrases: Liberals have “…create[d] their own universities where the central academic principles of peer reviewed scholarship, academic freedom, and diversity and dissent are not upheld.” Well, perhaps these institutions do have peer review. Wasn’t Ward Churchill the author of peer reviewed articles that were later proven to be … well, false?
And it is your contention that Christian colleges do not publish peer reviewed research?
And finally, no one is asking you to fund Liberty or Regent. They are private, not public. But I object to your attempt to throttle them financially by refusing to allow students the free choice of where they want to spend their scholarship money simply because you have a political disagreement with them. That is not the way political opinions contend in a free society. I hope that it is not indicative of the kind of anti-freedom authoritarian views and actions that many believe characterize the Left and the Academy.
I don't think "Christian" is a useful concept in political discourse, because different Christians want all sorts of different things.
There is, however, a Christian conservative movement, affiliated with movement conservativism and the Republican Party, which has certain goals, and discrediting the idea of a process of academic scholarship that, through peer review and commitment to the scientific method, seeks truth is one of its goals, and conservative Christian universities that do not adhere to traditional academic standards of scholarship are one mechanism by which this agenda is pursued.
Liberals in the academy have managed to discredit higher education all by themselves with absolutely no help from Christian conservatives or anyone else. I need only refer you to the Duke Lacrosse fiasco as a recent shining example, writ large, of the view that many people have of the academy as a hive of like-minded, racist, sexist and classist ideologues leavened with the rest of the see-no-evil faculty and managed by a spineless administration.
This is typical of the sort of thing I was talking about. Yes, some academics behaved very idiotically in the Duke scandal. Guess what, academics are human and have biases and make mistakes.
But the Duke scandal did not involve peer-reviewed scholarship or academic freedom. In other words, if the response to the Duke scandal were for conservatives to create a university with a better student disciplinary system, I'd be all on board. But throwing out the scientific method and peer review and academic freedom in response to the Duke scandal is like treating a sore wrist by cutting off your head. The two things have nothing to do with each other.
A place where “… doctrines that they disagree with are not taught and traditional concepts of academic freedom are restricted or eliminated.” Oops, that’s how you characterized evangelical Christian colleges.
I can only tell you that there's a difference between the picture of academia painted by conservatives and what actually goes on at college campuses. No respected conservative academics believe this. I am sure Professor Volokh, for instance, would be very surprised to learn that the institution that employs him doesn't respect academic freedom or the right of conservative faculty members to teach and public.
By saying this I am not denying that political correctness and groupthink sometimes exist. They do. But the broad, general statements of movement conservativism about colleges and universities are simply a cynical strategy to discredit institutions that often produce respected scholarship that discredits conservative political projects.
The fact is, Professor Volokh can teach and publish at UCLA, whereas a liberal pro-choice socialist can't teach and publish at Liberty or Regent, and the reason is because UCLA is not in the same category as Liberty or Regent.
What I find saddest is that plenty of conservatives believe the worst sort of anti-intellectualism. They have been sold a bill of goods by their leaders, when in fact academia features plenty of open debate that smart, accomplished conservative voices contribute to, sometimes persuading their colleagues. Indeed, we just saw a recent example of this with the right to bear arms, where conservative scholarship was not only published but changed minds. Have the leaders at Liberty and Regent ever been convinced by a liberal scholar to reconsider their ideas?
And it is your contention that Christian colleges do not publish peer reviewed research?
"Christian colleges"? If you mean Notre Dame or BYU, of course lots of good scholarship comes out of those places. But if you mean these evangelical conservative Christian colleges like Regent and Liberty, no, not a lot of peer reviewed research comes out of those places. But more importantly, they don't have academic freedom. At Liberty, the only people on the entire campus who are allowed to advocate in favor of Roe v. Wade are the debate team, and that was because they got a special dispensation from Rev. Falwell because the debate topic that year required them to be able to take that position.
In other words, can a Regent or Liberty professor publish a peer-reviewed paper? Yes, but it better come to the conclusions that are approved of by the administration. Again, that's quite a bit different than in the liberal academia you decry.
And finally, no one is asking you to fund Liberty or Regent. They are private, not public. But I object to your attempt to throttle them financially by refusing to allow students the free choice of where they want to spend their scholarship money simply because you have a political disagreement with them.
That's answered above. Routing the funding through a student, who spends it at the university, is the same as giving the money directly to the university. We are already telling the student they must spend the money at a college (and not, say, at a vocational school). Saying they have to spend it at a college that actually adheres to principles of academic freedom is not only reasonable, but essential.
(Dilan Esper): "There is...a Christian conservative movement, affiliated with movement conservativism and the Republican Party..."
Social conservatives voted Democratic until the 1960s. William Jennings Bryan and other social conservatives understood that capitalism corrodes customary institutions. If social conservatives today vote Republican, it's because they lost the contest with other factions for control of the Democratic party.
(Dilan Esper): "...the Duke scandal did not involve peer-reviewed scholarship or academic freedom. In other words, if the response to the Duke scandal were for conservatives to create a university with a better student disciplinary system, I'd be all on board. But throwing out the scientific method and peer review and academic freedom in response to the Duke scandal is like treating a sore wrist by cutting off your head. The two things have nothing to do with each other."
Whether peer review furthers "...the idea of a process of academic scholarship that, through peer review and commitment to the scientific method, seeks truth is one of its goals" depends on the peers, yes? Science and Society claims to be a peer reviewed journal of Marxism. Rationality and Society is a peer reviewed journal of Economics with a standard neo-classical approach. They can't both be right. Parts of Michael Bellisile's fraudulent Arming America appeared as articles in peer reviewed History journals. I recommend Martin Anderson's Imposters in the Temple, Charles Sykes' Profscam, and William Broad's Betrayers of the Truth
(Dilan Esper): "...the broad, general statements of movement conservativism about colleges and universities are simply a cynical strategy to discredit institutions that often produce respected scholarship that discredits conservative political projects."
1) Are those "broad, general statements" generally true? Do Republicans have difficulty getting tenure? Are faculty preponderantly "liberal" in the modern American sense (i.e, socialist)" Yes.
2) Drug companies produce biochemical scholarship. Mining and petroleum companies produce geological scholarship. The Keck telescopes were built with private funding. Sky and Telescope survives on subscriptions and advertising.
Years ago, the social critic Ivan Illich wrote that a compassionate society would have in its constitution a clause like the First Amendment to the US Constitution which would read: "Congress shall make no law respecting an establishment of education".
I don't believe these are the droids you're looking for.
Duke didn't happen in a vacuum. It was the culmination of a decades-long process that virtually guaranteed there would be no voices with the authority to dissent from the knee-jerk faculty/administration response.
There are all kinds of conclusions not acceptable in today's academy. So much so, that the questions are rarely even raised, so perhaps those of a conservative bent like yourself have ceased to be aware of their possibility.
Ask yourself this: which sect is more pervasive within (not without - a good bit of that attack is about being without) academia, the one attacking your cherished values (and mine) from the right, or those claiming to do so from the left?
When your premises are under attack and you find yourself on shifting ground, it is best for purposes of rational discussion to admit that some of your premises are either false of outdated. To fail to do this puts you in the ridiculous position that – for example – Obama is now in by claiming that he was right to oppose the surge because it would make the situation worse even though the surge has worked. This argument works to convince only the already convinced for whom the re-evaluation of their biases is literally unthinkable.
Malcolm Kirkpatrick, you have addressed his dismissal of the Duke Lacrosse scandal well. I will only add that to dismiss what the Duke did (and paid dearly for doing both in reputation and money) as “some academics behaving idiotically” is to either be unaware of what went on or to be casual about the attempt to railroad three innocent students to prison for the rest of their lives.
He asserts, without citation, that At Liberty, the only people on the entire campus who are allowed to advocate in favor of Roe v. Wade are the debate team.” Leaving aside the lack of evidence, can we agree that conservative Christians – especially evangelical Christians – view abortion as murder?
My copy of the constitution makes no reference to rights of privacy or right to an abortion, rightly leaving those decisions to the states. The whole “emanations and penumbras” language of the decision is the subject of ridicule in and out of legal circles. It is an outstanding example of what I referred to earlier as “the belief that the Constitution of the United States is embodied in the corporeal forms of 9 men and women appointed to the Supreme Court. (Hughes: “The Constitution is what the judges say it is”).”To get back to Liberty: why would a university that has as one of its foundational beliefs that abortion is murder advocate for Roe vs. Wade? Would UCLA have given George Lincoln Rockwell a professorship? Neither would Liberty. Nor will they give professorships to the kind of race baiting feminists harridans that found Duke University so hospitable, whereas academic freedom does stretch far enough at Yale to cause it to appoint a professor who advocates the killing of unwanted infants – after birth – as its official “ethicist.”
But here is the part that I find very disturbing. Dilan Esper claims that his basic problem with conservative Christianity is not religious but political. And he is so politically opposed to them that he would deny student the right to use scholarship money to attend them. Keep in mind that these are not Muslim madrassas that focus on nothing but memorizing the Koran and that advocate the killing of Jews and infidels. These are not academies run by hate groups. These are universities that are hospitable to very conventional mainstream Christian beliefs. But because Dilan Esper and people like him disagree with Christian conservatives so strongly, they would use the police power of the state to prohibit a student from spending his scholarship money to attend. And do so under the pretense that they do not meet his standards.
That, my friends is the sort of “Liberal Fascism” that Jonah Goldberg talks about in his book.
What in the world gave you the idea that Dilan Esper is conservative? Have you checked his website?
It is a fairly common problem of a certain generation to imagine themselves still progressive when they haven't advanced a new idea in thirty years so as, I imagine, to avoid coming to terms with either their own mortality or the fact that the generation that preceded them were not, in fact, irredeemably corrupt, only doing what mature human beings do.
Similar problems produce conservatives in every generation. This one is just exceptionally reluctant to come to terms with it.
The issue isn't who they vote for, it's what their agenda is. Obviously, a social conservative has the right to vote for whoever he or she wants to. But Liberty and Regent are institutions, and they were created for a purpose that I find antithetical to the educational values that both befit a free society and which are likely in the long term to lead us closer to truth.
Whether peer review furthers "...the idea of a process of academic scholarship that, through peer review and commitment to the scientific method, seeks truth is one of its goals" depends on the peers, yes? Science and Society claims to be a peer reviewed journal of Marxism. Rationality and Society is a peer reviewed journal of Economics with a standard neo-classical approach. They can't both be right.
No, but a process in which both ideas get published and debated and aired is a process that will lead us closer to the truth over time.
Bear in mind, as well, since you bring up Marxism, that conservatives like to pretend that Marxism is an integrated discipline that has been "proven" wrong in all respects. In fact, there are many forms of analysis that could be called "Marxist", in that they were advocated or utilized by Marx or his intellectual disciples, that still provide useful results. The fact that Marxist political theory was a disaster when put into practice does not mean, for instance, that false consciousness is not a useful tool of analysis.
Parts of Michael Bellisile's fraudulent Arming America appeared as articles in peer reviewed History journals. I recommend Martin Anderson's Imposters in the Temple, Charles Sykes' Profscam, and William Broad's Betrayers of the Truth.
This proves much less than you think it does. Lots of bad science has been done over the years. Does that invalidate Galileo? Does the fact that Social Darwinists and Eugenicists carried the banner of evolution mean that Darwin was wrong?
Yes, bad and sometimes even fraudulent scholarship has been published in peer reviewed journals. Often times, the scholarship that set out the truth was also then published in the same fashion. And over time, the method that academia and the sciences use have led us to some fantastic truths.
In contrast, I know books that Regent's and Liberty's founders believe are inerrant that are in fact full of errors, and contain no mechanism for correction. I don't think conservatives extolling the virtues of these institutions can take the mote out of scientific journals until they remove the many logs out of the texts that Regent and Liberty teach as factual.
1) Are those "broad, general statements" generally true? Do Republicans have difficulty getting tenure? Are faculty preponderantly "liberal" in the modern American sense (i.e, socialist)" Yes.
Again, I know conservatives say this all the time, and there are anecdotes in which, on occasion, a few conservatives have been denied tenure, but is there any real evidence that a conservative can't get tenure? Last time I checked, there were hundreds of tenured conservative professors teaching at allegedly liberal institutions all over the country. If liberals were really keeping the conservatives down, it would appear to me they are doing a really lousy job of it!
Meanwhile, you are changing the subject, which is what is happening at Regent at Liberty. Do you believe that a pro-choicer who published papers endorsing the result of Roe v. Wade could ever get tenure at those schools?
2) Drug companies produce biochemical scholarship. Mining and petroleum companies produce geological scholarship. The Keck telescopes were built with private funding. Sky and Telescope survives on subscriptions and advertising.
And I have no problem with religious conservatives who wish to publish peer reviewed scholarship arguing for conservative propositions. Indeed, the very judge we are talking about, Michael McConnell, used to be a tenured law professor. (Under your theories, of course, he could have never got tenure. I guess he slipped through.)
The issue is whether alternative institutions that reject the model of academic freedom should be treated as if they are the same as universities that accept that model. And nothing you have said is at all persuasive that the answer should be yes.
Again, I know conservatives say this all the time, but where is the evidence? Where are the massive number of well-researched scholarly articles which did not get published and the massive number of conservative academics who didn't get hired or didn't get tenure despite eminent quality?
As I noted, Professor Volokh certainly seems to have been able to argue for the right to bear arms despite the fact that the liberals that allegedly control universities favor gun control. Indeed, not only has he argued for it, but he and other conservatives persuaded many liberals in academia.
At some level, this is simply a matter of the people who believe the talking points and don't know the reality. Quality scholars who do quality scholarship get jobs and get published, and many, many conservatives are among them, which is precisely why we have so many excellent conservative academics including some of the proprietors of this very website.
Here's a citation for you:
http://www.nytimes.com/2006/03/19/magazine/
319debate.html?ei=5088&en=3b9723e4ad4a4b29&ex
=1300424400&partner=rssnyt&emc=rss&pagewanted=all
You know, instead of accusing me of asserting something without citation, why didn't you look it up yourself? What I said was easily verifiable.
<i>Malcolm Kirkpatrick, you have addressed his dismissal of the Duke Lacrosse scandal well. I will only add that to dismiss what the Duke did (and paid dearly for doing both in reputation and money) as “some academics behaving idiotically” is to either be unaware of what went on or to be casual about the attempt to railroad three innocent students to prison for the rest of their lives. </i>
You need to distinguish between what Duke's administration did, which was bad, and what the DA did, which was worse. The DA, and not Duke's administation, tried to send them to prison for life, and he has paid dearly for that.
In any event, you guys have missed the point. You can't prove any connection between the buffoonish behavior of Duke's Administration and the policies towards tenure and peer review and academic freedom, because there isn't any. Rather, you had administrators who let their preconceived notions get in the way of the facts; that's something to be condemned, but it has nothing to do with our discussion and in no way invalidates the proven virtues of academic freedom and peer review.
<i>can we agree that conservative Christians – especially evangelical Christians – view abortion as murder? </i>
Many certainly do. But that's not what education is about. Pro-lifers benefit from having to test their ideas, from being exposed to pro-choice arguments, and from understanding how to think through problems that involve competing values. They also benefit from understanding the history of women's rights and the conflicts between religion and feminism so they understand how we came to a point where so many support abortion rights.
And just to be clear, pro-choicers benefit from being exposed to pro-life views because of similar reasons.
That's called getting an education. Liberty's policy is antithetical to the notion of education; rather, the mission seems to be to ensure that pro-life students don't change their mind because they are exposed to alternative points of view. That's the sort of thing that I refer to as indoctrination, not education.
I certainly don't dispute that the leaders of these colleges have the right to express their pro-life views. But the question we are discussing is whether it is a good thing for tax dollars intended to fund education to fund a venture of this nature.
<i>And he is so politically opposed to them that he would deny student the right to use scholarship money to attend them. </i>
Taxpayer money. Private scholarships would be completely up to the funders. But taxpayer education funding should go to places that educate, i.e., that respect academic freedom.
<i>eep in mind that these are not Muslim madrassas that focus on nothing but memorizing the Koran and that advocate the killing of Jews and infidels. These are not academies run by hate groups. These are universities that are hospitable to very conventional mainstream Christian beliefs. But because Dilan Esper and people like him disagree with Christian conservatives so strongly, they would use the police power of the state to prohibit a student from spending his scholarship money to attend. And do so under the pretense that they do not meet his standards. </i>
That's a low bar, though. As I said, academic freedom is extremely important to the question of whether an institution is really educational in nature. Yes, madrassas, at least of the style you describe, aren't educational either. But saying that "these schools could be much worse" is really not an argument for why they should be funded.
And finally, you misuse the term "police power". The police power is the power of the state to regulate activities of its citizens and enterprises within its jurisdiction. This is not a police power issue; this is an issue of government spending, an area where government power is much broader.
It makes about as much sense for people who are not in government to argue about what government "should" do as for swimming survivors of a mid-ocean shipwreck to argue about what sharks "should" eat.
I contend that tax-subsidized education K-PhD has become an employment program for dues-paying members of the NEA/AFT/AFSCME cartel. Peer review has become an insiders' protection mechanism. Some worthwhile work gets published, but a lot of good work occurs outside academia and a lot of garbage gets approved by back-scratching peers and published.
(Dilan Esper): "The DA, and not Duke's administation, tried to send them to prison for life, and he has paid dearly for that."
Duke faculty and administration encouraged the DA and pronounced the kids guilty before ant trial. The Duke inccident relates to our larger topic for the evidence it provides of a corrupt (contrary to the "pursuit of truth" assertion) academic culture. The case of Michael Bellisiles relates for the same reason.
(Dilan Esper): "(T)axpayer education funding should go to places that educate, i.e., that respect academic freedom."
Not (academic freedom = education). Is a Chemistry professor free to assert that all matter is composed of earth, air, water, and fire? Is a History professor free to assert that firearms were rare in the early Republic? Is an Economics professor free to defend minimum wage legislation? In an Anthropology professor free to deny the possibility of statistically significant, genetically-determined differences between regional varieties of humans in liver or brain function?
The tragedy is that Mr. Esper and I share the same values, yet he has allowed the "conservative" (i.e. evangelical) bogeyman to distract him from the forces internal to academia that have severely eroded them. I speak from (more extensive than I would have liked) personal experience - life would certainly be easier if I could find a set of talking points that remotely matched it.
"[the Duke case] has nothing to do with our discussion and in no way invalidates the proven virtues of academic freedom and peer review."
I don't know that anyone is arguing that those virtues are invalid, just that they have been widely corrupted, and yet your attention is inevitably drawn to a couple nearly irrelevant small institutions instead of the vastly more powerful ones where peer review has often become little more than a tool for politics (often internal, but as often ideological) and academic freedom is of little use to those wrongly weeded out before achieving it.
Groupthink coming and going.
That is why I believe that choice for students (an issue Mr. Esper oddly brushes aside, given his professed views on abortion, for instance) is paramount, even if students choose wacky off-the-wall institutions that offend every last one of our delicate sensibilities. In the long run, it's the only sure way to keep the pervasive sect on its toes and thus to ensure that peer review and academic freedom function as intended.
Again, the fact that one work gets past peer review doesn't prove the peer review system doesn't work.
Indeed, the fact that Bellesiles' work was called out is an example of the system working. If a biblical scholar at Liberty discovers that a key passage of the Bible is false, he or she better not publish that if he or she wants to keep his or her job.
Not (academic freedom = education). Is a Chemistry professor free to assert that all matter is composed of earth, air, water, and fire? Is a History professor free to assert that firearms were rare in the early Republic? Is an Economics professor free to defend minimum wage legislation? In an Anthropology professor free to deny the possibility of statistically significant, genetically-determined differences between regional varieties of humans in liver or brain function?
Look, a professor has academic freedom to take any position he or she wants to. But to get published, one has to support the conclusions with good evidence and be subjected to peer review.
We are way off course here. What you are defending is the proposition that there is no relevant difference, to a government funding decision, between universities that respect these principles and universities that don't. All the rest-- all the forays into Duke and into one guy's phony scholarship about gun ownership 200 years ago, is a distraction. The fact is, it is a project of conservative Christian groups to deny a fundamental truth that there is a difference between mainstream academia and ideological indoctrination. And they must not be allowed to succeed in doing so.
1. My posts, above, contain glowing defenses and celebrations of conservative academics. Do you think I agree with them? No way. But I think they have every right to do what they do and the fact that they have so many high positions in academia is a testament to the power of their ideas and the quality of their work. So don't tell me about suppressing dissent.
2. Again, my posts above contain numerous clear statements that the Liberty and Regent people maintain their full rights to free speech. This is about government funding, not squashing dissent. It is about not treating institutions that don't believe in academic freedom as if they were academic institutions. It is not about stomping them out of existence, any more than the government's refusal to fund private vocational schools with scholarships puts them out of business.
The tragedy is that Mr. Esper and I share the same values, yet he has allowed the "conservative" (i.e. evangelical) bogeyman to distract him from the forces internal to academia that have severely eroded them.
There is no such erosion. There are isolated cases.
Look, you can imagine what academia would look like if the erosion you speak of had actually occurred. There would be no conservative professors, just as there are no liberal professors at Liberty and Regent. There would be no conservative papers published in peer-reviewed journals. There would have been no Heller, because there would have been no conservative scholarship that reconsidered the meaning of the Second Amendment and convinced many liberals.
Again, you can repeat over and over again how intolerant and closed-minded academia is, but it doesn't make it true. It just means you've repeated it again. Repeating a contention in the face of clear evidence that it is false is not going to persuade anyone but the conservative faithful.
That is why I believe that choice for students (an issue Mr. Esper oddly brushes aside, given his professed views on abortion, for instance) is paramount, even if students choose wacky off-the-wall institutions that offend every last one of our delicate sensibilities.
Again, students retain every choice. We are talking about government funding. Pat Robertson remains free to open as many "schools" as he wishes to. And students remain free to choose his schools under the free market. The question is whether the taxpayers should pay only for actual education and not indoctrination.
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