September 30, 2002
Mark Stephen Wrighton
Chancellor, Washington University in St. Louis
Chancellor’s Office, Box 1192
One Brookings Drive
St. Louis, MO 63130
Dear Chancellor Wrighton,
As you can see from our directors and board of advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, academic freedom, due process, legal equality and, in the case of Washington University’s Law Students Pro-Life, voluntary association, freedom of speech, and religious liberty on America’s college campuses. Our web page, www.thefire.org, will give you a greater sense of our identity and of our activities, although the great majority of our appeals to the spirit of liberty and legal equality are successful without contention.
FIRE is in possession of a copy of a letter from Elliott M. Friedman, president of the Student Bar Association (SBA), to Jordan M. Siverd, chairman of Law Students Pro-Life (enclosed). That association, which the University has authorized to act in these matters, has directly, inappropriately, and unlawfully interfered with the freedom of conscience, freedom of association, and freedom of speech rights of Law Students Pro-Life.
The SBA rejected the Constitution of Law Students Pro-Life, a group organized by and for students at Washington University School of Law (WUSL) with a religiously-based purpose to advocate "pro-life principles as applied to abortion, euthanasia, and assisted suicide." President Friedman stated that the SBA "felt that the organization was not touching on all possible Pro Life issues" because it did not have an "anti-death penalty" position in its Constitution. Friedman also suggested that the Pro-Life group consider "revamping" the organization to expand the scope to include "not simply the pro-life side." Friedman stated that the "narrowness" of Law Students Pro-Life’s topic of interest was the "catching issue" because Law Students Pro-Life was "very one sided." Essentially, Friedman and the SBA believed that if Law Students Pro-Life became a completely different Student Organization, it has a better chance of being allowed to exist at your university.
The letter from your university’s SBA ironically accuses Law Students Pro-Life of being "narrow." Instead of going by what the SBA "felt," President Friedman perhaps should have thought this one out analytically. It is WUSL, through the board to which it has delegated this authority, that has demonstrated both a scandalous narrow-mindedness toward and a bigoted intolerance toward religious students. Religious students should have no more rights than non-religious students on campus, but they likewise should have no fewer rights.
Given your previous stated devotion to "an intellectual community capable of open discourse," and the self-evident contradiction between that mission and this SBA decision, we bring this matter first to your attention rather than to the public’s attention in order to give you an opportunity to engage in immediate self-corrective measures that would avoid the reality of manifest hypocrisy and double standards, the certainty of extreme public embarrassment, the risk of potential litigation, or, indeed, all of these undesirable ends.
Despite meeting all of the requirements stated in the student government’s Approval for Student Organizations By-Laws, Law Students Pro-Life has twice been officially denied the right to exist as a recognized student organization at WUSL. The suggestion that Law Students Pro-Life adopt an anti-death penalty stance violates the group’s right to organize according to its own principles. It is an attempt to coerce them to espouse beliefs that they may not want to address, or that may even violate their deepest religious convictions. As an intellectual matter, the SBA is wrong in assuming that there is an inconsistency in the convictions of these students. While some religionists argue that a pro-life religious philosophy must oppose both abortion and capital punishment, others believe that there is a difference between protecting "innocent" life while capital punishment inflicts death on those found "guilty." Surely your university would not suggest to the members of Law Students Pro-Life that they must adopt different views in order to be permitted to exist—with the attendant use or loss of facilities and resources—simply because they exercise their sincere religious beliefs? No institution seriously committed to open discourse would tell students what issues they cannot address; let alone, what issues they must address.
The SBA’s rejection of this new expressive organization is particularly duplicitous when one considers that the SBA includes a "Diversity Committee" and recently funded a "Diversity Week," presumably to enrich student life by exposing students to pluralistic viewpoints and activities. In the minutes of the SBA’s August 26 meeting, also in FIRE’s possession, the SBA treasurer announced that "more funds [are] available [for student groups] due to [an] increase in student body fees and transfers." Mandatory student fees, partly used to fund SBA student organizations, are collected and administered by your administration.
The enforcement of ideological conformity is abhorrent and infamous, but the actions of the SBA further reveal a breathtaking double standard. SBA has already approved several organizations with equally "narrow" interests, including the Jewish Law Society, committed to "fulfilling the needs of Jewish students"; the Black Law Students Association, which functions solely "to orient, assist and otherwise support African American students"; the Washington University Environmental Law Society, which exclusively explores the "intersection of law and the environment"; OUTLAW, which restricts its activities to fostering an environment that is "supportive, positive, and safe for individuals of sexual and gender diversity."; and the Golf Club, whose mission is obviously quite narrow.
Friedman’s letter asserts that the Law Students Pro-Life must "encourage and facilitate discussion of the issues as a whole, and not simply the pro-life side of certain issues." This statement denies the group’s right to promote the principles that it was established to uphold. Does your university dictate the activities of other expressive organizations in the same way? Is the Environmental Law Society required to include the voices and opinions of industry leaders and those who favor market-driven solutions to environmental questions? Is OUTLAW obligated to provide a variety of views on sexuality, including views that run counter to the stated purposes of creating a "supportive, positive, and safe" environment for sexual minorities?
In the same way that the Environmental Law Society, OUTLAW, and the many other student groups must be free to define themselves, within the law, by their own lights and promote their principles, so must Law Students Pro-Life be free, within the law, to promote and organize on the basis of their principles. Put more simply, your agent’s ruling against Law Students Pro-Life imposes a disability that you do not—and would not—impose upon those of different belief and persuasion.
For public universities, of course, this issue was settled more than fifty years ago by the United States Supreme Court’s decision in the case of West Virginia Board of Education v. Barnette. In that 1943 ruling, decided in the darkest days of World War II, the Supreme Court was faced with a challenge to a daily flag salute requirement imposed on school children as part of a statute requiring schools to teach, foster, and perpetuate "the ideals, principles and spirit of Americanism." Jehovah’s Witnesses refused to salute the flag, believing it an act of idolatry forbidden by Scripture. Writing for the majority, Justice Robert Jackson condemned the flag salute requirement because it compelled a student "to declare a belief...to utter what is not in his mind." That is more than a legal doctrine; it embodies a moral doctrine that no great private university should traduce. Jackson linked the freedom of unorthodox dissent to the very cause at stake in World War II. The imposition on Law Students Pro-Life is a mandated ideological orthodoxy that conflicts with the core religious doctrine of these students, in the same way that the pledge to the flag rejected by the Supreme Court in Barnette was a mandated ideological orthodoxy that conflicted with the core religious doctrine of Jehovah’s Witnesses.
Explaining why even men of good intentions should not possess the awesome power to compel belief, Justice Jackson concluded that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox, in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
No private institution that cherishes the rights of free association and expression can, in good conscience, extend fewer rights and freedoms to their students than a public institution, bound by the Constitution. Do the law students of Washington University enjoy fewer protections of expression and conscience than students at Missouri community colleges? To restrict freedom of conscience, freedom of association, and freedom of speech is to create a stifled and intellectually bereft environment—the very antithesis of what you promised when you became Washington University’s fourteenth chancellor. The petty officials in the SBA have violated that promise.
The actions of the University’s agent in this matter are also in violation of the WUSL’s contractual obligations, delineated in its 2002-2003 Parent’s Handbook, which states that WUSL "is committed to the principles...of freedom of religion and speech." If WUSL intends to establish a certain orthodoxy on campus, this change should go before the Board of Trustees, and, above all, it should be stated explicitly in all of your literature so that students and faculty can make an informed decision about your creedal loyalty oaths, and inquisitions into private conscience before agreeing to attend or teach at WUSL. Anything less than that, on this deepest matter of conscience and “freedom of religion and speech,” would be fraudulent inducement and breach of contract.
FIRE requests that you secure an immediate withdrawal of the letter written to Mr. Siverd and the Law Students Pro-Life group. That letter is a violation of both the moral responsibilities of WUSL and of the clear declarations that you have made in the past relating to free speech at your university. Further, we call upon you directly to reassure the affected party, in this case the Law Students Pro-Life group, that those who would deny its rights may not do so on your watch. We have no desire to take this matter public if it can be immediately resolved discreetly, and we hope to hear from you very, very soon about such a resolution. Each hour that this decision remains the decision of your university is a violation of fundamental human rights.
Sincerely,
Thor L. Halvorssen
Executive Director
cc.
Jordan M. Siverd, Chairman, Law Students Pro-Life
Jonathan Katz, Professor of Physics
Joel Seligman, Dean, School of Law
Michael R. Cannon, General Counsel
Jill Carnaghi, Director, Campus Life
Elliott M. Friedman, President, Student Bar Association