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Legal Watch: Curriculum Matters
By Donna R. Euben
A recent study indicated that many high-school graduates are ill-prepared for intellectual life at college. In response, institutions such as the University of North Carolina, Chapel Hill, and the University of Maryland have created programs to introduce freshmen to intellectual life on campus.
At Chapel Hill, a summer reading program was established "to enhance the intellectual climate on campus by stimulating discussion and critical thinking." A faculty task force recommended that such a program would "enhance the first-year experience of students." The book selected for the 2002 program was Approaching the Qur'an: The Early Revelations, by Michael Sells, a professor at Haverford College.
Anonymous students and named individual taxpayers sought to halt this year's program. They sued the university, arguing that the assignment of the book, which they called "Islamic propaganda," violated the Establishment Clause of the First Amendment. That clause protects the separation of church and state, but it does not, as one court explained, "insulate our public institutions from any mention of . . . religion." In arguing that the book assignment violated the Constitution, the plaintiffs asserted that "[w]orse still is the danger of an establishment of religion by accretion under the guise of academic freedom, which is often nothing other than political correctness in the university setting."
In response, the institution defended the reading program as constitutional because the school is not endorsing or promoting a particular religion, and further asserted that imposing an injunction would chill academic freedom, because "the decision was entirely secular, academic, and pedagogical." As Robert Galloway Kirkpatrick, professor of English, stated in his affidavit: "Would next year's committee be forbidden to require incoming students to read The Iliad, on the grounds that it could encourage worship of strange, disgraceful gods and encourage pillage and rape?"
The federal district court denied the plaintiffs' request for injunctive relief, finding no constitutional violation: "there is obviously a secular purpose with regard to developing critical thinking, [and] enhancing the intellectual atmosphere of a school for incoming students." On August 20, the day of the freshman seminar, the federal appellate court affirmed the lower court's ruling, and administrators and faculty members led small-group two-hour discussions with students on Sells's book.
The University of Maryland has launched a different reading program for all students, including incoming freshmen. The school selected The Laramie Project, a play about the murder of Matthew Shepard, a gay college student in Laramie, Wyoming, which professors plan to use for discussions in classes. Some individuals have expressed concern that the play offends religious beliefs, and have announced that they will "oppose" the assignment unless the university presents "other data" on homosexuality.
Opponents of the Chapel Hill and Maryland academic programs argue that teaching about Islam and homosexuality, respectively, is inappropriate because, in essence, "the other side" is not being presented. However, a course in the classroom or the academic setting in which instruction takes place is not subject to a legal mandate for "equal time." Such a legal imposition would needlessly undermine academic freedom. As Justice Stevens noted in his concurrence in the Supreme Court case Widmar v. Vincent, the "judgments" about whether to prefer a student rehearsal of Hamlet or the showing of Mickey Mouse cartoons "should be made by academicians, not federal judges." Surely faculty are allowed to assign books (or plays) in their courses without having to provide "equal time" to every competing viewpoint.
In a similar case involving Indiana University-Purdue University at Fort Wayne, a federal appellate court recently ruled that faculty approval of a controversial play selected by a student for his senior thesis, which offended some religious individuals, did not violate the Establishment Clause: "[t]he contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to conventional Christian beliefs is absurd." The court continued, "Classrooms are not public forums; but the school authorities and the teachers, not the courts, decide whether classroom instruction shall include works by blasphemers."
As Professor Kirkpatrick opined, John Milton was right when he said that books contain the potency of life, and therefore, "we censor them at our intellectual peril."
Donna Euben is AAUP counsel.
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