Full Faith and Accreditation

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Full Faith and Accreditation

A shorter version of this piece was published in the Maryland Daily Record on August 18, 2014

In a rational world, a notion recently floated by Peter Conn in the Chronicle of Higher Education would provoke a serious debate whether to de-accredit many religious colleges and universities. This is not a rational world, and I don’t expect Conn’s notion to go anywhere. But a boy can dream. Mind you, I bear no hostility towards religious education as such; I am a grateful product of Catholic parochial grade and middle school. Nevertheless, I think Conn, an educator (at another of my alma maters, the University of Pennsylvania) has a point. But speaking as a lawyer, I fear Conn’s stance is constitutionally unsound.

Inerrantly Compromised

Conn’s argument first: There are a number of institutions that insist on the literal accuracy of Scripture. Conn writes of “Christian colleges that require their faculty members to sign a ‘faith statement,’ consenting to such scientifically preposterous propositions as, for example, that God created Adam and Eve, who were real historical figures and who are the actual ancestors of all humanity.”

I think Conn may slightly overstate his case here; all the mandatory faith statements I have found in my researches are a little less specific. For instance, Illinois’ Wheaton College, an entirely representative institution, requires its faculty to sign a faith statement which provides, in relevant part: “[T]he Scriptures of the Old and New Testaments are verbally inspired by God and inerrant in the original writing, so that they are fully trustworthy and of supreme and final authority in all they say.” Nothing there specifically addresses Creation or Adam and Eve. Nonetheless, it is fair to infer from the word “inerrant” that subscribers are endorsing the literal truth of the account in Genesis. And it is also fair to infer from “supreme and final” that in any clash between Genesis (literally understood) and science, the subscriber is committed to dismissing science, specifically including what we know about the age and the formation of the cosmos and the development of life on this earth.

The issue is not with what professors at these schools may happen to believe; it’s with the requirement of a commitment in advance to believe it, no matter what. Conn maintains, and I agree, that professors making such a pledge are thereby “intellectually compromised,” and their institutions along with them.

Not Equally Valid

I say this though I agree that it is arguable that revelation is a different way of knowing, and that scientific method may ultimately be no more provable, epistemologically speaking, than revelation. Hence in some sense the two may stand on an equal footing. But what institutions with a faith pledge seem to be espousing is not a clean-cut and perhaps epistemologically equally valid choice. Rather, they too wish to follow science – except where it clashes with revelation, as they construe it.

For instance, I note that Wheaton’s course catalogue has a class in “Earth History and Stratigraphy.” I fail to see how such a course could be offered as serious science without acknowledging that Genesis is scientifically inaccurate. In fairness I would also note a paper in which a member of the Wheaton Geology Department actually rejects the “Young Earth” geology that a literal reading of Genesis effectively demands. Still, the fact remains that the Wheaton pledge and many others like it would seem to dictate the embrace of Young Earth geology, a school of “scientific” thought that would never have been thought of in this era but for the desire to see Genesis supported.

This is the problem, then: if there is an epistemologically satisfying explanation of how scientific method somehow loses its validity when, and only when, it happens to clash with Scripture, I have not heard of it. Absent such an explanation, I must conclude that that approach misapplies scientific method. Science does not acknowledge exceptions. Science assumes that the rules of nature (and thus of nature’s God) do not neatly stop wherever ancient documents written by non-scientists say they do. Therefore, however an institution may explain itself, if it tries to force anyone to say that science makes exceptions like this, that institution has declared war on science, whether it admits the fact or not. And educational associations should be able to defend themselves and science against such an attack.

Accreditation a Defense?

And that is where accreditation comes in, says Conn.

Accreditation is the way academia draws boundaries. Only schools that fit accreditation criteria are admitted. The criteria drawn up by the various accrediting associations all, in one way or another, enshrine the values of open inquiry and teaching. A typical example: the Higher Learning Commission of the North Central Association of Colleges and Schools requires (among numerous other criteria) that an accredited “institution [be] committed to freedom of expression and the pursuit of truth in teaching and learning.” Thus, to the extent the North Central Association accredits institutions like Wheaton College, it is undercutting its own stated criteria. If it takes those criteria seriously, the Association ought to be excluding the Wheatons – says Conn.

As a former academic, I would agree, but as a lawyer I confront certain questions. If Conn’s idea were put into practice, wouldn’t that be state action against religion, a violation of the Free Exercise clause of the First Amendment?

Maybe not. Though public institutions are part of the North Central Association, it is a private organization. Private groups are not bound by the First Amendment. That is one way to look at it.

State Action?

On the other hand, the single most important impact of accrediting organizations is their role as gatekeepers to federal financial aid to students under the Higher Education Act of 1965. Generally, if your institution is not accredited, your students won’t get federal grants or loans. So HEA has effectively rendered a handful of “private” accrediting organizations the gateway to governmental largesse. First Amendment state action has arguably been delegated to private actors. Does it stop being state action simply because the delegated actor is “private”?

Up till now, the cases that have addressed the matter seem to have said that, at least at the college level, accrediting associations are not state actors.[1] In fact the North Central Association itself was held not a “state actor” back in 1967,[2] around the time that the federal student loan program started (though any role of accreditation in the then-nascent student loan program was not raised in that case).

And yet there is some judicial discomfort with this conclusion, as there should be. In a 2002 case involving Auburn University, the Northern District of Georgia held an accrediting association to be subject to a due process requirement, just as if it were a state actor, and precisely because of the student loan issue.[3] The court called the status of accrediting associations as non-state actors a “legal fiction.” And if due process applies, why not the Free Exercise clause as well? Then too, the Supreme Court has held a state high school athletic accrediting association to be a state actor.[4]

So I think there’s a good case to be made that the accrediting associations are state actors, and the Auburn case may be a portent of future recognition of this reality. And if I’m right about that, then it would be hard for accrediting associations to do what Conn suggests, and de-accredit the faith-pledge schools.

The Science Subjugation Restoration Act

The Religious Freedom Restoration Act of 1993 (RFRA) ordains that laws of general applicability impeding the free exercise of religion must spring from a compelling justification, and the recent Hobby Lobby case has made it clear that RFRA governs federal programs like the Affordable Care Act. Surely the Higher Education Act would also be subject to RFRA. If accrediting associations acting as gateways to the federal student loan program were recognized as state actors, they would be subject to RFRA and its compelling-justification test too. And under current market conditions, I don’t think exclusion of faith-pledge institutions from accreditation and hence from student loans could meet that compelling-justification test.

It might be different if there were few or no institutions where science overruled faith. There might be an argument that we had to save science. But there is no such scarcity. Anyone who qualifies can obtain a loan to attend an institution where real cosmology and real biology trump Genesis. As irritating and irrational as I find these faculty faith pledges, then, I cannot see how they threaten the viability of scientific research and pedagogy. All they are likely to do is poison the academic reputation of the scientists who teach at these schools, and of the students who graduate from them.

What Remains

There still remain ways to separate out those scientists who have compromised themselves by taking the oath. No respectable scientific journal need publish papers by them – at least papers which contradict accepted scientific knowledge and methodology. They need not be given a forum at academic conferences if they wish to use them to espouse anti-scientific views. And their students, at least those in scientific fields affected by the pledge, need not be recognized as having been properly trained.

That may be all the Constitution permits, but it should be sanction enough.

 

[1]. See McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 520 (3d Cir. 1994); Transp. Careers, Inc. v. Nat’l Home Study Council, 646 F. Supp. 1474, 1478 (N.D. Ind. 1986).

[2]. Parsons Coll. v. N. Cent. Ass’n of Colleges & Secondary Sch., 271 F. Supp. 65, 66 (N.D. Ill. 1967).

[3]. Auburn Univ. v. S. Ass’n of Colleges & Sch., Inc., 489 F. Supp. 2d 1362, 1373 (N.D. Ga. 2002), relying on Brentwood (see the next note.)

[4].  Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S. Ct. 924, 926, 148 L. Ed. 2d 807 (2001).

Copyright (c) Jack L. B. Gohn

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One Comment

  1. Stefan Ehrenkreutz says:

    St Augustine of Hippo? NB I thoroughly enjoyed your column, Jack.

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