First Amendment Watch: Voltaire, Where Are You?

During the 1950s and ’60s when,   in the name of freedom of expression, our courts were busy voiding obscenity, national security, and other laws limiting freedom of expression, a saying of Voltaire was routinely invoked as an ethical standard to which we should all repair: “I disapprove of what you have to say, but I will defend to the death your right to say it!” Endlessly repeated in liberal commentary, it also made a fitting zinger in summations to courts in free speech cases. Indeed, quoting this bare-breasted offer of martyrdom gave one an aspect of heroism and nobility.

Up to now, the Supreme Court’s view of freedom of speech has been that of Justice Oliver Wendell Holmes in 1919: that “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.” And so, though literally “fraught with death,” grunge rock music and visual appeals to violence flow through the channels of our TV and movies unimpeded by laws.

The past two years, however, have been full of surprises for believers in traditional values. One which should be a surprise to everybody — particularly to people who call themselves “liberal” — is the attack suddenly mounted against freedom of expression. So gross is the attack and so great the silence of civil libertarians in the face of it, that I have concluded that my memory of Voltaire has played a trick on me. Must he not have said, “I disapprove of what you have to say, and I will go to your death to stop you from saying it”?

The chill of a sort of reverse Puritanism is setting in, as in the recent instance of a student’s being penalized for “inappropriately directed laughter.” Some of the new “harassment” regulations and court rulings will not restore civility but will open up opportunities for two kinds of opportunists — people claiming to be victims and lawyers eager to serve them.

Two more developments of extremely ominous portent are also at our doorstep. One consists of new statutes and court decisions penalizing pro-life demonstrations at abortion “clinics.” A pending Supreme Court decision on such demonstrations and the Freedom of Access to Clinic Entrances Act will be the focus of a subsequent First Amendment Watch. Intensely threatening to First Amendment freedoms — to the free exercise of religion and to the intellectual integrity of centers of learning — is a second development: the “diversity” programming being pushed by regional college accrediting associations.

Accreditation is of great importance to most institutions of higher learning. It tells all the world — prospective students and prospective faculty, in particular — that an institution is of acceptable quality. It helps institutions attract money. Of special importance, it renders the institution and its students eligible for forms of federal grants and other federal benefits. Hence the large regional accrediting associations, by their authority to grant or deny accreditation, hold nearly a life-or-death power over institutions. The power is, legally speaking, a governmental power, because of its connection to federal funding.

Until very recently the accrediting associations have exercised that power wisely by assessing academic excellence (and, to an extent, financial viability). But in 1990 Middle States Association of Schools and Colleges revoked the accreditation which Westminster Theological Seminary of Philadelphia had enjoyed for 36 years, not on any academic ground but on the basis of a new accreditation ground labeled “diversity.” Westminster had flunked the “diversity” test by its refusal, on proved religious grounds, to have a female on its board. Westminster challenged Middle States’ action as unconstitutional. Thanks to Lamar Alexander, then U.S. Secretary of Education, it was Middle States, not Westminster, which lost this battle.

Because of Middle States’ outrageous overstepping of its power by requiring cultural diversity as a condition for accreditation, Alexander suspended federal authorization of Middle States as an accrediting body. Middle States hastened to restore Westminster’s accreditation. Little was it dreamed, after this episode, that any of the nation’s regional accrediting bodies would ever again attempt to muscle in on institutional liberties under cover of “diversity” requirements.

Within the past few months, however, the attempt has been revived — indeed, on a massive scale. The Commission on Diversity of the Western Association of Schools and Colleges (WASC) has demanded that every public and private college and university in its region (California, Hawaii, and Guam) conform to a pervasive regulation known as its “Statement on Diversity.”

The Statement’s bold aim is breathtaking: to dictate what shall be taught, who shall teach it, how it shall be taught, how the institution shall be governed, whom it may admit to study, whom it shall employ, how life in its community shall be lived. In dictating all of this, WASC overrides the integrity of the school and substitutes itself as governor.

Nothing is more interesting about the Statement than the style in which it is presented. The wording avoids the hard-edged injunctions typical of governmental regulations (“The following actions are hereby prohibited…”, or “All persons subject to this Act shall undertake the following…”). The Statement instead describes features of an acceptable school — these supposedly representing a “consensus” about which all enlightened educators are in agreement. It asks for “thoughtful engagement” with its “expectations.” But WASC leaves no doubt that the Statement is intended to be regulatory, i.e., it must be obeyed in its every aspect lest accreditation be revoked.

The statement prescribes conformity under the headings of three “dimensions” (“representation,” “campus community,” “group membership and identification”) and proceeds to expand each of these themes. Under “representation,” it appears that an institution’s student body, faculty, staff, and board must be “representative” of all “the different groups” in “the region” (undefined) — that is, the groups identified as “racial, ethnic, socioeconomic class, religious belief, disability, gender, and sexual orientation.” The college’s task of figuring out how many of which “groups” shall be added to, or displace, existing memberships of faculty, student body, staff, and governing boards is daunting. Under “community and campus,” the Statement forbids “systematic neglect of the perspectives and aspirations of the members of any group.” The school administrations are left to guess the meaning of the accordion-like terms — “neglect,” “systematic,” “perspective,” “aspirations.”

So it goes. The Statement is shot through with vague language. The schools are left to guess at the meaning of all these terms at their peril. As the Supreme Court rightly once said in a freedom of speech case: “Those sensitive to the perils posed by indefinite language, avoid the risk only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited.” Regulations like these of WASC have also been described by the Court as something that “hangs over [people’s] heads like a Sword of Damocles,” whose effect in chilling expression “is that it hangs — not that it drops.” That is where the WASC Commission has left the schools.

The vagueness is purposefully strategic. Leave aside possibly conflicting mandates of college charters, administrative burdens, and expense which may be entailed in efforts to divine the WASC prescriptions and then to conform to them. The gravest burden is the manifest impossibility of assuring that the requirements have been met. Only WASC will know.

WASC most intrudes in the independence and integrity of schools when it seeks to make mandatory its own intellectual and social ideology. Institutions will not be deemed by WASC to provide “quality” education — irrespective of the intellectual achievement they have shown — unless, in most if not all cases, they recant their commitment to prior traditions and embrace, for example, “non-Western and non-European values.”

WASC’s prescriptions are particularly threatening to religious institutions. While WASC would permit them to admit students on a religious basis, this is scarcely adequate protection for a college which has profound moral objections to certain widespread lifestyles, not only among students but also staff and faculty. WASC’s definition of “collegiality”— which militates against evangelical activity — clashes directly with the idea of a Christian faith community.

WASC’s bias leaps out from another provision of its “quality” requirements. After the Statement says that WASC “firmly rejects curtailment of free expression and inquiry,” it continues: “This concern [for “knowledge, evidence and truth”] should not be undermined by particular judgments of … religious … groups.”

WASC, in sum, has empowered itself to enter into the affairs of the institutions’ internal structures and judgments in order to gainsay those judgments and impose, instead, the judgments of other individuals-WASC team members, staff, and commissioners.

Happily, this truly Orwellian program is being energetically resisted. Thomas Aquinas College in California, to its great credit, has challenged WASC — at first alone and now joined by Stanford, Caltech, Pepperdine, and Saint Mary’s. Aquinas has also published a legal opinion which arraigns WASC’s actions on constitutional grounds. The outcome remains to be seen. All will now depend on both the perceptiveness and the courage of private school leaders.

William Bentley Ball

By

William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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