When Did Impoliteness Become Unprotected Harassment?

By May 27, 2005

Check out “Sex, Religion, and Politics: New Challenges in Discrimination Law” at the Chronicle of Higher Education’s “Law in Academe” section. The articles discusses and advises colleges and universities on how to “deal with new, rapidly emerging legal areas, including discrimination against transgender people, discrimination against people for their religious and political beliefs, and discrimination against people with mental and psychological disabilities.”

The article is worth reading primarily to illustrate the troubling complexity of the anti-discrimination legal landscape. As I wrote in my most recent column:

Unfortunately, the legal landscape is so badly muddied by a number of overly expansive or unclear court opinions that universities believe they have to take seriously even claims that clearly implicate unquestionably protected speech. Due, in part, to the frenzy to protect themselves from these lawsuits, universities often respond to any report of “offensive” speech aggressively—and free speech is often the first casualty.

Readers should note the author suggests colleges “should provide sensitivity training for faculty and staff members about transgender issues—including, for example, the importance of referring to a person by the appropriate pronoun” for dealing with transgender students or faculty. I am all for treating students with respect, but I think something has gone wrong when politeness is enforced by law rather than personal values. And in its worst the mandatory inculcation of values becomes a kind of “thought reform.”

Finally, readers should note one crucial omission. The article discusses the lawsuits around the country in which Christian groups are suing rather than giving up their right to define their religious identity. The authors refer to several lawsuits, but omit the fact that one of the highest profile lawsuits, the ADF lawsuit against UNC Chapel Hill, resulted in an injunction against UNC. The injunction was a major victory for groups like FIRE that believe that part of the freedom of association is the right to exclude people who do not share your beliefs. FIRE’s numerous other religious liberty cases point out that colleges understand that if they try to tell religious groups (not all of them Christian, by the way) that they cannot “discriminate” on the basis of religion they are treading on shaky ground. The article would have benefited from discussion of these important cases.