As Greg noted yesterday, Jihad Daniel’s ordeal at William Patterson University is generating an enormous amount of outraged email. Several individuals have argued that the university is not just violating Daniel’s First Amendment rights, but also discriminating against his religious beliefs in a manner that violates New Jersey’s own anti-discrimination policy. As one recent correspondent noted:
I wonder if Dr. Speert realizes that the university’s actions are in violation of the same code it professes to uphold. In this case the threat in the workplace is a blatant attack no not only his right of speech, but is an attack on his religious beliefs in the workplace. Unlike the professor who is prone to excess exaggeration, Daniels is being threatened in the workplace by the university itself solely because of his religious beliefs. As such, Dr. Speert, the professor, and the university at large are in direct violation of the law they profess to uphold.
This correspondent is partially correct. The university’s actions are a direct assault on Daniel’s religious beliefs, but that does not necessarily mean that those actions violate policies that prohibit discrimination on the basis of religion. One of the primary problems with expansive anti-discrimination statutes is that they are almost infinitely malleable in their interpretations. Prohibitions against religious discrimination were originally written to protect religious expression. Now, these prohibitions are more often used to protect individuals from the religious and to actually prevent religious organizations from maintaining their religious character. For example, universities consider it “religious discrimination” when Christian organizations wish to remain Christian or Muslim organizations wish to remain Muslim.
The bottom line? The real-world application of anti-discrimination statutes depends almost entirely on who controls the levers of political power. A socially conservative or religious organization would have seen Professor Arlene Holpp Scala’s email and complaint as discriminatory. By contrast, the university views Daniel as creating the hostile environment. In other words, under New Jersey’s expansive nondiscrimination policy (and the New Jersey attorney general’s even more expansive interpretation of that policy), the university is vulnerable to suit from Daniel and Scala. The way out of this morass is through the First Amendment. Let both Daniel’s and Scala’s views be heard—with no presumption that either individual is too weak or fragile to live with freedom.