Here’s something to think about when debating the position of the Catholic bishops on religious liberty and contraception: all-women colleges are allowed under Federal law to discriminate against men in admissions, at least on the undergraduate level. Because they are private, these colleges are free under the law to design their mission (the education of women) and their undergraduate admissions system (no men) their own way.
Until the 1970s, Wellesley College, where I teach, had several graduate programs in the sciences (and in other fields before that).Then federal law dictated that graduate programs in both private and public institutions could not discriminate on the basis of sex. Rather than admit men into those formal degree programs, Wellesley dropped its graduate program. This may be a special case, but it suggests one of the most precious freedoms in a democratic and pluralistic society, namely, the right of private educational institutions to preserve a space for their own design about how to educate their central mission.
The nature of this mission, in both private and public institutions, seems clear when the protection of religious liberty is at stake. Government mandate about contraception, sterilization and abortifacients will continue to be debated, but most observers acknowledge that actually there is a problem and that we may continue to argue about the best ways to resolve it. Because Catholic institutions of higher learning are, indeed, private institutions, we may overlook the fact that the protection of religious liberty includes, in the case of such institutions, an even broader protection that follows from their status as private institutions.
If the freedom of private all-women colleges has important implications in the religious liberty debate, the same sort of implications may well become a factor in the United States Supreme Court’s forthcoming review of affirmative action policy in Texas. We may see a split between public and private institutions regarding their admission policies similar to the division that allowed Wellesley to keep men out in order to concentrate on women.
There are so many experts, some more, some less politicized by the perceived stakes, that it is worth considering the presumed reach of any decision the Court hands down. First, because public institutions of higher education and the professional schools have been the continuing locus of controversy about admission policies, it is easy to forget that private institutions have had different stakes in the public scrutiny and legal challenges about their own admission policies. Even as so-called legacy admissions have been pilloried by critics who argue for greater meritocratic-based admission policies at private institutions, the fact is that it is in the very nature of private institutions to define membership in ways not afforded to public ones, although federal law has obviously long held sway over certain limits to these definitions.
To defend such freedom of association in principle when it appears to preserve something of which you approve (e.g., women’s education) will also mean that it may preserve arrangements about which you are less approving. The fight over contraception implicates not only religious values per se, but beliefs and values in general. Because the focus in the Catholic case is on religious values, what may be less apparent is the broader struggle over what institutions are compelled to do by government as opposed to what they elect to do (or not do) by virtue of their beliefs and values. This kind of struggle is not at all about a balancing between the rights of individuals over and against the demands of government. On the contrary, insofar as private institutions in particular provide any services to those they admit (e.g., students) or employ (e.g., faculty and staff), these institutions preserve an identity of conviction as much as they may uphold a template of rights. Here is where the real conflict exists: the rights articulated in the United States Constitution must be upheld by legislative and judicial considerations that are always subject to the will of the people. Religious liberty presupposed that whatever the will of the people might be, such liberty could not usurp a broadly conceived idea about religion itself. Certainly, in the case of polygamy, the idea of religion, however broadly conceived, has its boundaries in relation to the state.
It was during the era of Bismarck and the rise of the kulturkampf that this relation and its boundaries took original shape in the form we now call culture war. There should be little surprise that this culture war, always in some way about the complicated relation between church and state, now has its proxies in the debates about affirmative action. For several decades the state has been in a protracted argument with itself about how public institutions of higher and professional learning should be conceived for the purpose of advancing both opportunity and equality.
Private institutions, always rhetorically advancing ideas about opportunity, have, in an ironic sense, been much harder pressed to advance ideas about opportunity and equality as well. The wealthiest and most elite schools, after all, are filled with the spirit of equality, promoting claims of all sorts about the problems of a society divided along class, race, and gender lines. As the public institutions, from kindergarten to higher education, are held to a relentless scrutiny about performance and outcome, the private institutions have been “self-policing” themselves through a menagerie of assessments whose origins, comparability, and utility will probably not be fully understood or appreciated for years to come. In other words, privacy has its privileges, so much so, that I would propose an unorthodox conclusion: affirmative action among its advocates is ultimately more akin to religious belief than to rational, publicly embraced policy. Its promotion in private institutions can be defended on the same principle that should protect Catholic institutions from being subject to public health prescriptions to which they object. This may be difficult to accept by those who believe that higher education, whether public or private, should share similar ideals and goals, particularly about merit. But I do not think they take seriously enough the principle at stake that has long distinguished private, once also decidedly more religious educational institutions, from public ones.
Affirmative action is the religion of private institutions, and the fate of it and its advanced directive, now called diversity, will be interesting to observe as these private, in particular elite, institutions respond to what may very well be a major shift in public institutional practices in the next few years. At the same time, it should not be considered inconsistent with their values that they admit students better and worse prepared to do well in different subjects, if their goals of diversity, in the end, trump a concern for performance, short of flunking out. In short, private institutions, short of denying admission on the basis of race, should be allowed to go their own way and pursue their own values.