FreeBYU Complaint Against BYU is a Publicity Stunt Clothed as an Accreditation Issue

Free Willy! And free BYU!

Mr. Brad Levin, JD (his own designation, not mine) has submitted a complaint to Brigham Young University Law School, alleging that the law school is not in compliance with certain American Bar Association (ABA) accreditation standards relating to religious and academic freedom.

The complaint comes in the form of a 43 page letter, complete with flow charts and appendices.

As an attack on BYU’s accreditation it is without merit and, frankly, a little amateurish and very annoying.

Mr. Levin has an axe to grind with BYU.  That’s his prerogative, and it’s fine.  But he’s decided to enlist the ABA in his personal crusade to save BYU from the LDS Church by waging an attack on the accreditation standards of a school that delivers a fine quality of education by any measure.

It’s counterproductive.

In trying to convert a disagreement over religiously oriented policy into an accreditation concern, Mr. Levin raises one legitimate point but otherwise ends up consistently stretching standard requirements and making claims that are belied by easily obtainable facts.

Here’s how I read this whole thing.  Basically, Mr. Levin’s got a bunch of anecdotes and a personal experience that prove to him BYU is unfair.  And the ABA couldn’t possibly accredit a law school that’s unfair right?  Ipso facto, there must be an accreditation problem, right? Right??  Just like the Constitution couldn’t possibly allow an unfair law, right? Right??

Wrong.

Still . . . because Mr. Levin raises issues that many feel are legitimate, and I’ll attempt to deal with Mr. Levin’s concerns in light of the specific ABA accreditation standards he says are at issue.


First, a couple of disclaimers:

(1) Mr. Levin’s ultimate objective seems to be to persuade to BYU to change its policy on students who leave the Latter-day Saint (LDS) faith being ineligible for an ecclesiastical endorsement (and therefore ineligible to continue their studies/graduate).  I’m sympathetic to this goal.  I think BYU should change that policy as well.  But, as you’ll see below, I don’t like the way Mr. Levin has gone about it.

(2) I’m a graduate of BYU Law School and an active, believing member of the LDS Church. So, I’m not free of bias.  But I’ll just let the analysis speak for itself.

Mr. Levin claims that BYU Law School does not comply with the following ABA accreditation standards:

Hunter_carrelsStandards 205(a), (b), and (c) (Non-discrimination)

Mr. Levin contends that in refusing to allow former members of the LDS Church to attend, continue to attend, teach or continue to teach at BYU Law School, BYU  violates the ABA’s non-discrimination standards.

From the ABA’s standards:

(a)  A law school shall not use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability.

(b)  A law school shall foster and maintain equality of opportunity for students, faculty, and staff, without discrimination or segregation on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability.

(c)  This Standard does not prevent a law school from having a religious affiliation or purpose and adopting and applying policies of admission of students and employment of faculty and staff that directly relate to this affiliation or purpose so long as (1) notice of these policies has been given to applicants, students, faculty, and staff before their affiliation with the law school, and (2) the religious affiliation, purpose, or policies do not contravene any other Standard, including Standard 405(b) concerning academic freedom. These policies may provide a preference for persons adhering to the religious affiliation or purpose of the law school, but may not be applied to use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, gender, sexual orientation, age, or disability. This Standard permits religious affiliation or purpose policies as to admission, retention, and employment only to the extent that these policies are protected by the United States Constitution. It is administered as though the First Amendment of the United States Constitution governs its application.

Analysis of 205(a), (b), and (c)

Standards 205(a) and (b) set out general rules relating to non-discrimination, but the important one to look at is Standard 205(c), which contains two carve-outs to the anti-discrimination general rule.

First, the standard itself specifically standards that “[t]his Standard” (i.e., Standard 205) does not prevent a law school with a religious purpose, from adopting and applying preferences and policies relating to admission and employment provided notice is provided before admission.  Noticeably absent in Mr. Levin’s complaint is any reference to what precisely was disclosed to students prior to their admission to the University.

Instead, Mr. Levin’s anecdotal arguments amount to: “Well, I knew I had to obey the Honor Code, but I had no idea that if I left the church . . . and that’s not fair.”

The question of disclosure is solved with a quick reference to the University’s public statements about the Honor Code, which every student is required to read and sign.  Take a look:

If Mr. Levin or anyone else failed to read the Honor Code that they signed (and reaffirmed each year with their Ecclesiastical Endorsement), it isn’t the University’s fault.  The language is clear and unequivical.  And Mr. Levin himself quotes multiple public statements by BYU officials regarding the differential treatment of former LDS at BYU.  The policy is no secret.  It’s not susceptible to misunderstanding.

While Standard 205 goes on the state that the carve-out applies only to the extent it doesn’t contravene an existing standard, 205(c) itself is a carveout to the nondiscrimination portions of Standard 205, generally.  But it later goes on to say that the exception can’t be applied to prohibit admission or retention on the basis of, among other categories, religion.

This is Mr. Levin’s strongest point — because BYU does say to former LDS that they can no longer attend and are not eligible for admission by virtue of having left the LDS faith.

Is discrimination based on former religious status still discrimination based on religion?  I think that it is.  But BYU’s Honor Code defines “disaffiliation” as removal of one’s name from the records of the church, and provides an avenue of appeal in cases where the student demonstrates compelling circumstances.  So, what’s “penalized” is public opposition to the church while a BYU student or removing your name from the records.  Private questioning?  Quiet discussions about questions?  Not an issue, per the policy.  But even when applicable, the policy provides a mechanism for non-enforcement in appropriate cases.

Still, I’ll acknowledge that a potential issue remains.

However, even if the initial carve-out in ABA Standard 205(c) doesn’t apply here, Section 205(c) specifically states that “[t]his Standard” (i.e., Standard 205) is applied as though the First Amendment would govern its application, meaning that if the First Amendment guarantee of religious liberty protects BYU’s actions here, then there is no violation of Standard 205’s general anti-discrimination provisions.  I’m not particularly qualified to expound on First Amendment guarantees and private religious colleges, nor do I think it’s necessary given the first express exception.  But an argument is certainly there — because the issue becomes, let’s assume a government tried to condition, say, approval of operations at a private religious college on the basis of their admission decisions.  Free exercise problem?  Maybe.  Perhaps someone else can correct me.

Furthermore, note that under Standard 107(a), a law school may seek for a variance from any of the standards provided they can demonstrate it’s necessary to avoid extreme hardship to the law school and is otherwise consistent with the general purpose of the ABA Standards.  I don’t know whether BYU has been granted such a variance, or has even found it necessary to seek such a variance, but that’s something to consider.

And the broader point is, of course, if that this isn’t really about accreditation at all.  The ABA approved and has left in place BYU’s accreditation knowing full well the situation with respect to admissions.

Standards 308(a) and (b), and 309(a) (Adoption and Publication of Standards; Academic Integrity)

There are three aspects to Mr. Levin’s complaint with respect to Standards 308 and 309 has:

  1. He claims that BYU Law School has impermissibly put the academic future of students in the hands of untrained ecclesiastical leaders via the ongoing requirement that students obtain ecclesiastical endorsements. This means there aren’t any clear standards as to what is required of students who leave the faith as it regards continued admission.
  2. Mr. Levin argues that leaving the decisions of ecclesiastical endorsements to local religious leaders has lead to “inconsistent and unpredictable enforcement actions…[and] a culture of fear and self-censorship amongst students.”
  3. Further, Mr. Levin asserts that the Honor Code is “ambiguous and complex,” and that it is not “adequately published to students or understood by them.”  Mr. Levin particularly singles out “students who come to doubt the LDS Church or its doctrine,” as being unable to grasp what the Honor Code means for their situation.

From the ABA’s standards:

308(a) A law school shall adopt, publish, and adhere to sound academic standards, including those for good standing, academic integrity, graduation, and dismissal.

(b) A law school shall adopt, publish, and adhere to written due process policies with regard to taking any action that adversely affects the good standing or graduation of a student.

309(a) A law school shall provide academic advising for students that communicates effectively the school’s academic standards and graduation requirements, and that provides guidance on course selection.

Analysis of 308(a) and (b), and 309(a)

Before we dive in on this one, let’s pause to note that Standards 308 and 309 say nothing about delegation of aspects of enrollment decisions (what Mr. Levin refers to as “outsourcing”) or even academic freedom — both of which Mr. Levin spends and an exhaustive amount of time alleging constitute violations).

But putting that aside, let’s deal with Mr. Levin’s concerns one by one.

(1) Mr. Levin suggests that BYU is prohibited from “outsourcing” student academic eligibility decisions to bishops and lay ecclesiastical leaders. Let’s assume, for purposes of this section, that BYU is allowed, under applicable law and Standard 205(c) to grant preference in admission to LDS Students in furtherance of its religious mission. Given this reality, how does Mr. Levin propose this be done, if not through certification by ecclesiastical leaders? Does he really think that Standards 308 and 309 — which don’t reference ecclesiastical matters at all — require the law school to maintain a review board that will assess, for example, whether a student actually paid 9.9% of his income in tithing or 10.2%? Whether he or she paid tithing on gross or net income? Whether a touch between boyfriend and girlfriend constituted a step too far with respect to the LDS Church’s Law of Chastity? To stand as a mandatory court of appeal of every ecclesiastical endorsement decision?

Ecclesiastical leaders make these decisions as a matter of necessity in the LDS tradition.  And the theological belief is that they possess discernment in doing so.  Mr. Levin may support the absurdity of a University-wide comprehensive theological review panel as a means of imposing an extreme regulatory burden (inconsistent with LDS doctrine) on BYU Law School (and the entire LDS Church educational system) that require a change in policy, but I see no fair reading in Standards 308 or 309 that would require this type of sea change. Furthermore, contrary to Mr. Levin’s contention, LDS bishops are not simply given carte blanche to determine a student’s academic future.

The Honor Code and endorsement forms themselves contain clear and published criteria. And, in any event, the general objection with “outsourcing” (which is littered throughout Mr. Levin’s complaint) is ridiculous.  Bar associations outsource decisions about admissions to the state bar to the ABA (via ABA law school accreditation requirements in states that require attendance to an ABA accredited school).  Law schools outsource admissions decisions to other universities outside their own administrative structure.  They even outsource decisions relating to eligibility to high schools, or, heaven forbid, private religious schools. Universities outsource admissions decisions to third-party organizations like the LSAC and ACT. BYU requires an ecclesiastical endorsement be completed by their local LDS or other ecclesiastic leader. This requirement is clearly communicated to students.  Guidelines for the endorsement are publicly published by the university and included on the form used.

(2) Mr. Levin contends that unpredictable enforcement decisions have created a culture of fear and self-censorship among students, but  provides only unsubstantiated anecdotes in support.  Assuming they are true, again, Standard 205(c) is the rule. During my time at BYU Law School, I never felt the need to self-censor and, in fact, encountered a much greater open consideration of ideas than during graduate studies at the University of Iowa, where disagreement with establish thought patterns was nonexistent. Clearly advocacy is a different story, but that’s no surprise to anyone who is admitted to BYU.  And the important point — outside of my own and Mr. Levin’s anecdotal experiences — is that none of this has anything particular to do with Standards 308 or 309. They require the adoption and communication with respect to admission, retention, graduation, academic integrity (Mr. Levin seems to conflate academic integrity [think plagiarism and honesty in academic work] with academic freedom, which is the subject of an entirely separate standard, Standard 405(b), discussed below).

(3) Mr. Levin suggests Standards 308 and 309 are violated because the Honor code is ambiguous, complex, and not adequately communicated to students (especially students who leave the LDS Church while at BYU).  Rather than respond to this in detail, I would simply direct readers to BYU’s own website, or simply to the excerpt quoted in the analysis with respect to Standard 205 above.  There may very well be misunderstandings among BYU Students about the nature of Honor Code requirements applied to those who leave the LDS Church while at BYU.  But the ramifications are, in fact, communicated to students.  It’s difficult to imagine how they could be more clear.

The_YSections 405(b) (Academic Freedom)

Mr. Levin contends that BYU lack’s a policy on academic freedom that is sufficiently defined to provide meaningful guidance to students and faculty.

From the ABA’s standards:
A law school shall have an established and announced policy with respect to academic freedom and tenure of which Appendix 1 herein is an example but is not obligatory.
Analysis of 405(b)

Mr. Levin references the published policy on Academic Freedom at BYU that “[t]he policy does not . . . clearly lay out what actions, thoughts, or behaviors violation the ‘interests of the Church'” or the “mission of the University.”

Mr. Levin should reread his own quoted brief.  Here’s a summary of what the policy says are the limitations on the general rule of academic freedom:

  1. Expression to students or in public (i.e., no thoughts) that contradict or oppose, rather than analyze or discuss, fundamental Church doctrine or policy.
  2. Expression to students or in public (i.e., no thoughts) that deliberately attack or derides the Church or its general leaders; or
  3. Expression to students or in public that violates the Honor Code because the expression is dishonest, illegal, unchaste, profane, or unduly disrespectful of others.

While it’s true that BYU Law School’s policy doesn’t specifically identify every item of LDS doctrine or detail every instance in which one could run afoul of the reasonable limitations, it is clear policy.

For instance, since Mr. Levin cites his own advocacy of the issue of same sex marriage as an example in this complaint, I’ll refer to it here as well.  BYU’s academic freedom policy makes clear that public support of same-sex marriage constitutes public expression that contradicts established church doctrine and policy.  No surprise or  failure to disclose here.

Additionally, it’s important to note that BYU’s policy specifically provides that “[a] faculty member shall not be found in violation of the academic freedom standards unless the faculty member can fairly be considered aware that the expression violates the standards.”  In other words — no surprise discipline before the faculty member or student is apprised of the issue.

Section 509(a) (Clear communication of policies)

Mr. Levin argues that BYU violates Standard 509(a) by failing to provide accurate and complete information about its policies to its students and applicants.

From the ABA’s standards:

All information that a law school reports, publicizes, or distributes shall be complete, accurate and not misleading to a reasonable law school student or applicant. A law school shall use due diligence in obtaining and verifying such information. Violations of these obligations may result in sanctions under Rule 16 of the Rules of Procedure for Approval of Law Schools.

Analysis of 509(a)

I’ve already dealt with this objection at length. Suffice it to say, that it’s clearly communicated on BYU Law School’s website and in other materials that compliance with the Honor Code is required.  Honor Code requirements are fully disclosed.  No need to belabor this point further.

In Conclusion

Mr. Levin has an axe to grind with BYU Law School (and BYU generally).  This isn’t the first time he’s gone after BYU’s accreditation.

And I suspect he’ll be about as successful this time — meaning that this complaint will go nowhere.  The ABA has already evaluated BYU’s compliance and accredited it.  There aren’t any secrets with respect to its policies, which are fully disclosed to the student body.

But let’s assume this does go somewhere.  Let’s assume the ABA goes back to BYU Law School and says, “Change your policy or we’re going to withdraw your accreditation.”  At that point, the Utah bar changes its policy on ABA accredited law schools.  And you get a competitive accreditation group that starts to accredit religious law schools.  Or, maybe BYU changes its policy.  And you’ve successfully used standards that are aimed, first and foremost, at the quality of legal education, as a sword in the culture war.  A tactic that won’t be forgotten.

Mr. Levin might want to ask himself this question — is he trying to make the predictions of the conspiracy theorists all come true?

Or is he truly interested in productive change?  If he is, he might want to spend some time talking to Steve Urquhart and other members of the Utah legislature about the nondiscrimination ordinance that was passed this last session — without attacks or public shaming.  And then if he can procure the policy change from BYU through productive discussion, I would cheer the change in direction.

And he might find it more effective and less painful than public martyrdom.

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