No Need for Congress to Act–I’m President, So I’ll Do It Myself

Watch this space. I will be posting something shortly (but not short) on a proposed presidential executive order that would impose by White House fiat the Employment Non-Discrimination Act (discussed here and here), which serial Congresses have refused to pass.


As a prequel to that post and to provide a taste of what
it will discuss, today I want to mention a recent decision by Villanova University to cancel a previously
scheduled week-long workshop by Tim Miller, a gay performance artist,
explaining that it “had concerns that his performances were not in keeping
with our Catholic and Augustinian values and mission.”

Assuming Villanova has some government contracts, this decision would almost certainly be an example of the
sort of behavior the proposed executive order would prohibit. Even without the executive order Villanova will no doubt be heavily criticized, following the lead of Mr. Miller, who described the university’s decision as reflecting a
“coercive, censorious time.”

I can certainly understand his point, but I wonder how many of those who agree with him can appreciate that the federal government prohibiting Villanova’s behavior here would also not be without strong elements of censorious coercion. Villanova, after all, is not only a Catholic institution due a certain amount of deference in defining what its religion requires; it is also a university with no small claim to the very sort of academic freedom that those eager to vilify it here often claim to support.

Recall, for example, that in Grutter,
Justice O’Connor justified her willingness to allow the University of
Michigan to bestow burdens and benefits based on race by pointing to
“the academic freedom that ‘long has been viewed as a special concern of
the First Amendment'” (quoting Justice Powell in Bakke). “We defer,”
she went on, to the “complex educational judgments in an area that lies
primarily within the expertise of the university,” saying that the Court’s
decision is “in keeping with our tradition of giving a degree of deference
to a university’s academic decisions….”

Also recall, for another example, the fierce debate over
the Solomon Amendment (discussed here and here),
which called for cutting off federal funds to colleges and universities that,
in protest against the military’s (actually, Congress’s) “don’t ask, don’t
tell” policy on homosexuality then in effect, refused to allow
recruiters from the Dept. of Defense on campus as a news article,
not an opinion piece, in the Chronicle of Higher Education proclaimed at
the time.

On its face, the case is a First Amendment fight over
free speech and the power of the purse. In a larger sense, however, it is a
battle over academic freedom, and the right of colleges to govern themselves as
they see fit.

Does Villanova have a right to make “complex
educational judgments” and govern itself as it, and its church, sees fit?
Will it if the proposed executive order is signed? Stay tuned.

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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