Monday, March 31, 2008


On the Way to Calvary

There has been an important decision in the case brought by the Association of Christian Schools International and Calvary Chapel Christian School against the University of California, which claims that UC's rejection of various courses prepared and taught by the plaintiffs for status as "approved courses" for admission requirements is unconstitutional. The decision is 49 pages long and complex, but I'll try to give a "bottom line."

There were two broad claims by the plaintiffs: 1) that the admission policies themselves violate the Free Speech Clause, the Free Exercise Clause, the Establishment Clause and the Equal Protection Clause of the First Amendment and 2) even if the policies as written are not unconstitutional, they are being applied in an unconstitutional manner.

UC sought partial summary judgment, a motion asserting that there is no factual basis for that part of the action alleging the polices as written are unconstitutional, and the plaintiff sought summary judgment on the grounds that there were no question that, both as written and as applied, the policies were unconstitutional. The court granted UC's motion and denied the plaintiffs. In essence, the court found that the policies as written are constitutional and that UC produced credible evidence that it was applying the policies in reasonable and permissible ways. Some highlights (with citations and notations to the record omitted):

Plaintiffs erroneously argue that the UC course review process "render[s] Christian school students ineligible for ninety-eight percent of the seats in the entering class" because of rejected Christian school courses. Even setting aside that students have alternative ways to demonstrate proficiency in the A-G Subjects, eighteen percent of California students are admitted without needing to demonstrate proficiency (not two percent, as Plaintiffs contend). Further, if ninety-eight percent of Christian school students were ineligible, Plaintiffs should be able to identify a significant number of students excluded from UC because of the course review process. Yet, "Plaintiffs do not show, and there is no evidence, that even one [Association of Christian Schools International] student has been denied UC eligibility as a result of any actions challenged" in this case.
The court found that "there is no genuine issue of material fact" that UC was rejecting any courses simply because they included a single religious viewpoint. Essentially Calvary was arguing that even if a course otherwise met UC's academic standards, but added religious content or a religious viewpoint, it was unacceptable. Instead, the court found outright that "Defendants do not have a 'well-established practice' of rejecting courses that contain standard content, but add a single religious viewpoint." Similarly, the court found that "Defendants do not have a 'well-established practice' of rejecting history courses because they 'add a Christian god' or 'one religious perspective.'"

Of particular interest to me, the court found:

Finally, Plaintiffs contend that Defendants have a policy of rejecting biology courses that, in addition to evolution, contain topics such as theistic evolution, intelligent design, creation, or weaknesses of evolution. Again, Defendants deny this allegation, explaining that biology courses may include scientific discussion of the weaknesses of evolution, creationism, or intelligent design. ... For example, biology courses that use Christian texts that discuss perceived weaknesses of evolution, creationism, and intelligent design as supplemental texts can and have been approved. ...

Once more, there is no genuine issue of material fact as to this issue. Defendants do not have a "well-established practice" of rejecting biology courses that add theistic evolution, ' intelligent design, creation, or weaknesses of evolution.
In an important ruling, the court found that the UC policies are not "facially" engaged in "viewpoint discrimination" or "content regulation." Such a finding would have subjected the policies to "strict scrutiny," the most difficult constitutional muster for Government actions to meet:

Heightened scrutiny is inappropriate here. If [UC's] Guidelines and Policies are rationally related to the goal of selecting the most qualified students for admission, they do not violate the First Amendment" guarantee of free speech.
Under the "rationally related" test, the court found that there is no genuine issue of material fact as to UC's "Position Statement on Religion and Ethics Courses," which requires such courses "treat the study of religion or ethics from the standpoint of scholarly inquiry rather than in a manner limited to one denomination or viewpoint" and "should not include among its primary goals the personal religious growth of the student," meeting the test. The court found "The UC Position Statement on Religion and Ethics Courses is reasonable."

Again, of particular interest to me:

Plaintiffs base their claims against the UC Position Statements on Science and History Courses on the false assertion that these Position Statements require a secular curriculum without religious viewpoints. [Quoting from Plaintiff's brief: "In other words, there must be a 'secular history curriculum' without religious viewpoints." and "The [Science] Position Statement also means that only a 'secular science curriculum' (no religious viewpoint added) is approved."] Yet, the Position Statements do not use the word "must"; rather, they use the word "can", indicating that a "secular" curriculum is not mandatory for approval. Indeed, ... Defendants have approved numerous science and history courses that incorporate religious viewpoints.

The rest of the Position Statements reinforce the purpose of the [UC] Guidelines: Admitted students must attain "essential critical thinking and study skills," "the necessary preparation for courses, majors, and programs offered at [UC]," and "a body of knowledge that will providebreadth and perspective to new, more advanced studies."

There is no genuine issue of material fact as to this issue. The UC Position Statements on Science and History Courses are reasonable.
Without beating a dead horse, the court went on to find that all of the UC policies survived constitutional review on their face, leaving the plaintiffs with the difficult task of showing that UC had an actual policy to violate the plaintiffs' First Amendment rights by its application of the guidelines. If it is not quite a rout, the plaintiffs chances of winning have been greatly reduced.

There is more of interest that I will blog on but that should hold you for a while.

Update: Andy Guess at Inside Higher Ed has more background on the case for those unfamiliar with it. Ed Brayton at Dispatches From the Culture Wars has also posted about the decision. And not ot be outdone, Mike Dunford has three posts about the decision up at The Questionable Authority.

There is now a copy of the decision available in pdf format courtesy of the University of California.

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