Whose Shame?

As was demonstrated by California Senate Bill 1146, higher education is a present, and, certainly, future battleground over the place of religion in American public life. The California ballot measure would have restricted the availability of state funding for economically disadvantaged and minority students who chose to attend private, religiously affiliated schools. While purporting to eliminate religious discrimination, the law would have introduced new discrimination by coercively punishing religious beliefs on matters related to human sexuality. The bill would have effectively prevented religious institutions from setting expectations of belief and conduct that align with the institution’s religious beliefs. While the California ballot measure was amended for 2016, dropping the most restrictive language, the sponsoring senator has stated that he intends to bring the same issue again next year.

In what ways do institutions of higher education face specific challenges to religious freedoms? What are the contributions of religious institutions of higher learning to both specific faith communities and American society at large? Why is protecting religious freedom in higher education of significant importance?

Go here to see other pieces in this series: Religious Freedom and Higher Education

In January of this year, New York Times columnist David Brooks spoke at a banquet celebrating the fortieth anniversary of the founding of the Council for Christian Colleges and Universities (CCCU). His address, a thought-provoking, even lyrical, homage to the hope that religious higher education offers for American culture today, is well worth reading. Brooks identifies character, commitment, and community as the distinctives that religious higher education offers our culture, in contrast to non-religious educational institutions which “nurture an overdeveloped self and an underdeveloped soul.”

Drawing a sharp distinction between what doesn’t happen at Yale University, where he is an adjunct faculty member, and what he has observed happens at some religious colleges, he concludes:

[Christian colleges] are the avant-garde of 21st century culture. You have what everybody else is desperate to have: a way of talking about and educating the human person in a way that integrates faith, emotion and intellect. You have a recipe to nurture human beings who have a devoted heart, a courageous mind and a purposeful soul. Almost no other set of institutions in American society has that, and everyone wants it. From my point of view, you[] . . . have the potential to influence American culture in a way that could be magnificent.

But significant parts of American society are now unyieldingly hostile to the religious beliefs that some religious colleges teach. Specifically, our legal and political cultures actively oppose the religious belief that sex is to be experienced exclusively within a lifelong, monogamous commitment between a woman and a man, a belief shared by Catholicism, Orthodox Judaism, and Evangelical Christianity. As it rigidly imposes its own sexual orthodoxy on dissenting religious institutions and individuals, this legal and political opposition ironically parodies the puritanism that it derides.

As history so often has shown, religious believers often stand in open dissent, even as the rest of society bows before the newest idol. For this reason, efforts to suppress religious liberty are on the increase, including in the context of higher education.

Turning to public higher education first, consider Hastings College of Law, a government law school in California, which quashed a Christian Legal Society student chapter because it required its leaders to agree with its traditional Christian belief that sex is to be experienced exclusively within a lifelong, monogamous commitment between a woman and a man. The law school celebrated student groups who embraced very different beliefs about human sexuality, but it had no tolerance for a handful of students who held religious beliefs that contradicted the State of California’s official views on human sexuality.

Not satisfied with punishing religious students at its own schools, California’s government recently embarked on a campaign to punish religious students for choosing to attend religious colleges that conduct themselves in accordance with the belief that sex is to be experienced exclusively within a lifelong, monogamous commitment between a woman and a man. This spring, the California legislature seriously contemplated a bill that would deny state educational grants (Cal Grants) to students who attended any religious college that dared to claim a religious exemption under Title IX for its religious beliefs regarding human sexuality.

Title IX, of course, exudes exemptions for non-religious organizations from its general prohibition on sex discrimination in education. Social fraternities and sororities at both public and private colleges are exempt, as are voluntary youth service organizations, Boy Scouts and Girl Scouts, and many other organizations. Furthermore, as the U.S. Department of Education recently explained, Title IX even allows public schools to provide “significant assistance” to organizations that limit their membership to one sex. And public schools themselves may sometimes enroll exclusively students of one sex, despite Title IX’s prohibition on sex discrimination.

Nonetheless, California legislators advanced a bill to punish students who chose to attend a college that claimed its Title IX religious exemption. California Assembly Bill 1888 would have denied Cal Grants, which provide up to $9000 per year in tuition assistance, to any student who attended a college that asserted its Title IX religious exemption.

Often first-generation students from underserved communities, these Cal Grant students predominately represent racial and ethnic minorities. Presumably acting on a stereotype of religious colleges, legislators were caught off guard to learn that religious colleges welcome minority and low-income students. Only after realizing that the legislation would do tremendous harm to minority students throughout the state, did California legislators change course. But not before significant harm was done: many low-income students were forced to decide which college they would attend in the fall without knowing whether they would forfeit their Cal Grant if they chose to enroll at their first-choice religious college.

Note that at no time did the California legislature propose to deny Cal Grants to the thousands of students who join social fraternities and sororities on the University of California and Cal State campuses. Evidently, California legislators were untroubled by the fact that those non-religious organizations exercise an exemption from Title IX’s general prohibition on sex discrimination. Only the students at religious colleges were to be punished for their disfavored religious beliefs.  

In the end, California officials “settled” on legislation to require religious colleges to self-identify as Title IX religious exemptees. While this won breathing space for religious colleges in the short-term, it is a loss for our free civil society in the long-term. No American government should force religious institutions to publicly self-identify as holding specific religious beliefs, especially when the impetus for the government’s action is its antipathy towards those beliefs. Intending to shame religious dissenters, the California legislature has instead shamed itself.


Kim Colby serves as the Director of the Center for Law and Religious Freedom of the Christian Legal Society. A graduate of Harvard Law School, she was co-counsel in two cases heard by the United States Supreme Court.  She has testified before the United States Commission on Civil Rights and the United States House of Representatives’ Judiciary Subcommittee on the Constitution and Civil Justice. She received her B.A. from the University of Illinois. 


**All views and opinions presented in this essay are solely those of the author and publication on Cornerstone does not represent an endorsement or agreement from the Religious Freedom Institute or its leadership.**

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