The College Fix

Changes to hiring policy ‘motivated by anti-religious bigotry’

Yale Law School is promising to include an “accommodation for religious organizations” after denying funding to students who want to work for a conservative Christian organization.

But it has not specified possible accommodations, instead pointing The College Fix back to a vague written statement that raises more questions than it answers.

The top-ranked law school in America sparked outrage among high-profile Republican senators when it revised policies late last month on which organizations can receive Yale funding to hire law students and graduates. It cited its own nondiscrimination policies as well as accreditation rules.

Senator Ted Cruz, chair of the Judiciary Committee’s Constitution subcommittee, said last week he was opening an investigation into Yale’s compliance with federal law. Senator Josh Hawley, a Yale Law alum, went even further: He called on the Trump administration to review Yale’s tax-exempt status.

The conservative Christian organization targeted by Yale told The Fix it was skeptical about the religious accommodation the law school floated in response to political pressure.

“There is a way to balance respect for religious students and nondiscrimination policies,” Tyson Langhofer of the Alliance Defending Freedom said in a phone interview. However, “the Yale policy change is motivated by anti-religious bigotry.”

The American Bar Association, whose accreditation rules Yale claims to be following, did not respond to a Fix email asking whether Yale is correctly interpreting its rules.

Don’t help students ‘push discriminatory agendas during their summers’

The first victim of Yale’s change is students who want to use Yale funding for “public interest fellowships” with the Alliance Defending Freedom over the summer. Its Blackstone Legal Fellowship is reserved for “exceptional Christian law students.”

The change appears to have been driven by Yale’s desire to appease left-wing campus groups who were outraged when an alliance lawyer spoke on campus in February.

The Christian legal group has won nine Supreme Court cases in the past seven years, including Masterpiece Cakeshop. That’s the case where seven justices said Colorado showed “religious hostility” to cake designer Jack Phillips when it found that his refusal to bake a cake for a same-sex wedding violated the state’s antidiscrimination law.

The Yale chapter of the Federalist Society hosted Kristin Waggoner, the alliance lawyer who argued Masterpiece. When the chapter sent a school-wide email about the event, the campus LGBT group Outlaws and several other progressive groups called for a boycott, according to chapter member Aaron Haviland in The Federalist.

What the Federalist Society got was “over-the-top even by Yale standards,” Haviland wrote.

Two days before Waggoner’s event, the Outlaws asked the administration if students would be able to use Yale-funded public interest fellowships “to push discriminatory agendas during their summers,” according to The Daily Wire.

The LGBT group suggested Yale Law not admit applicants who “have worked to sue cities and states for passing anti-discrimination laws and ordinances.”

Heather Gerken, dean of the law school, responded with an email to the law school community. It said Yale Law will “extend” its nondiscrimination policy to summer fellowships with nonprofit and government organizations, post-graduate fellowships, and a loan assistance program that helps students with loan payments if they earn below a certain salary threshold.

She specifically highlighted protection for “sexual orientation and gender identity and expression” as the reason for the change. (The law school is possibly objecting to the alliance’s Statement of Faith, which includes “homosexual behavior” and “acting upon any disagreement with one’s biological sex” in a list of “sexual immorality.”)

Gerken thanked Outlaws “for their leadership” on limiting student employment opportunities that are funded by the law school.

The recruiting policies for employers, updated in late March, require “all employers using the services of Yale Law School’s Career Development Office” to follow its nondiscrimination policy. If Yale believes they are in violation, including by not hiring students because of their religious beliefs, it can cut them off from funding.

Yale Law graduate Samuel Adkisson, a former Federalist Society chapter president, wrote in USA Today that the changes mean Yale won’t fund a graduate “if she works for the Christian Legal Society, but not if she works for the Freedom from Religion Foundation.”

Yale Law cited ‘no particular instances of hiring discrimination’

Cruz drew political attention to Yale Law’s changes in an April 4 letter to Gerken, saying it had imposed discrimination on religious students under the guise of antidiscrimination.

“The First Amendment protects both free speech and the Free Exercise of religion. Yale’s new policy does neither,” the Texas senator wrote to the dean. Federal civil rights law prevents “discrimination based on religious faith,” and as a recipient of federal funding, “Yale is obligated to comply with these protections.”

A spokesperson for Cruz’s office told The Fix the “new anti-Christian policy was explicitly pushed by the administration to mollify radical student groups which were furious” about the alliance event on campus.

The law school has cited “no particular instances of hiring discrimination to justify excluding Christian and conservative organizations from their stipend system,” the spokesperson wrote in an email. Administrators simply declared that “views held by many millions of Americans” violate its nondiscrimination policy, “without bothering to prove their case.”

MORE: Yale Law remains plastered with anti-Kavanaugh fliers

EXCLUSIVE: @TedCruz opened investigation into a Yale Law policy that stems from "unconstitutional animus & a specific discriminatory intent both to blacklist Christian orgs & to punish Yale students whose values or religious faith lead them to work there."https://t.co/G3DoCaRBz2

— Jerry Dunleavy 🇺🇸 (@JerryDunleavy) April 4, 2019

In a same-day public response to Cruz, the law school claimed it was following American Bar Association policy that requires all law schools to adopt a nondiscrimination policy “for employers who benefit from the career-services support provided by law schools.”

Reiterating Gerken’s initial response to the Outlaws, the administration said it was acting to protect students from “discrimination on the basis of their sexual orientation and gender identity.” Its nondiscrimination policy is typical among law schools, the response said.

The school emphasized that the new policy will “solely concern hiring practices” and will not “inquire about political goals” or policy objectives of an organization. For the first time, it claimed it will develop an “accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles.”

The Fix asked Yale Law to specify this accommodation in practice and how it would differ from the current situation, and to respond to Adkisson’s USA Today op-ed about the effect of its policy change.

The administration simply pointed to Gerken’s followup statement Wednesday. That statement elaborated:

As has long been the case with federal policy, our policy also will afford accommodations for religious organizations in hiring. Affording such accommodations is consistent with both anti-discrimination principles and our long and proud tradition of graduates pursuing careers with religiously affiliated organizations.

Yale Law School Dean @GerkenHeather addresses Yale Law School's Commitment to Nondiscrimination. https://t.co/j0CAyN8J9Q

— Yale Law School (@YaleLawSch) April 10, 2019

Langhofer, who directs the alliance’s Center for Academic Freedom, told The Fix that Yale hadn’t told his group “how the policy will provide such accommodations.”

The ministerial exemption Yale mentioned is “much more limited” than a “robust” accommodation should be, because “it would only apply to leadership groups, and not all employees,” he said. “It’s just unclear at this point what types of exemptions Yale will be providing.”

Langhofer said it was clear “Yale is making changes in response to those demands” by left-wing student groups. They not only “demanded financial benefits be taken away” but asked Yale to ban conservative religious students from Yale, “so it’s hard to believe they are making policy changes that are not going to affect religious organizations.”

A member of the Yale Law Outlaws, Duncan Hosie, claimed Senator Cruz had  “flagrantly misrepresented Yale’s policy.”

He wrote in the New York Daily News that “students can still opt to work for organizations that deny equal employment opportunities to their classmates, but Yale will not fund it.” They can even still receive Yale funding if they work for groups that “advance anti-LGBT policies” but don’t exclude “sexual minorities” from employment.

Education Department must keep pressure on Yale to devise real accommodation

Josh Hawley, Missouri’s new senator and Yale Law alum, piled on Yale Law after his Texas colleague told the school it would face a subcommittee investigation.

“Depriving a student of resources available to everybody else because of her religion isn’t just wrong. For schools receiving federal funds, it’s illegal,” Hawley tweeted.

If Yale does not alter or abandon the policy, “the federal government should strip funding from Yale under appropriate statutes and review Yale’s tax-exempt status.”

In a Senate floor speech Tuesday, Hawley claimed that Yale was forcing everyone to “share Yale’s view of what an appropriate religious mission is … what students should be doing with their time” and “what our deeply held beliefs, religious or otherwise, should be.”

On the Senate floor today I called out Yale’s discrimination against students of faith and the new fundamentalism of intolerance that motivates it pic.twitter.com/aR7UAM4els

— Josh Hawley (@HawleyMO) April 9, 2019

This “fundamentalism” operates on a “monochromatic view of the world” that requires Americans to “behave in the way our elites want us to behave,” Hawley continued. Such a viewpoint is not only counter to the First Amendment, but is “not what has allowed us to live in civil peace and civil friendship for many years.”

He asked Education Secretary Betsy DeVos* in a Tuesday letter to monitor Yale’s implementation of its revised policy and take “all appropriate legal action to strip Yale of federal funding” should it target religious students for “special disfavor.”

Despite its promised religious accommodation, “the circumstances surrounding Yale’s announcement suggest that whatever exception Yale does create may be inadequate,” Hawley told DeVos. The revised policy wasn’t made “in a void” but in response to student protesters who specifically “demanded that Yale strip funding from students” who work for the alliance.

“Given this background, there is a real risk that whatever definition of ‘religious organization’ Yale promulgates will be unreasonably narrow,” Hawley said. It could give “the false impression that Yale is protecting religious students while it is in reality capitulating to the demands of student protesters who want to target certain religious classmates for special disfavor.”

Gerken’s Wednesday response doesn’t mention Hawley’s criticism but doubles down on the school’s April 4 statement.

“Unlike many schools, Yale pays the salaries of students working for public-interest organizations over the summer and after graduation, and it forgives their loans if their salaries fall below a certain threshold,” she wrote.

“The policy we announced last month is simple: going forward, we will not fund the work of an employer that refuses to hire students because they are, for instance, Christian, black, a veteran, or gay.”

(Alliance Defending Freedom’s statement of faith specifically refers to “homosexual behavior,” meaning sexual or romantic behavior between members of the same sex. Sexual orientation is broader, encompassing celibate homosexuals.)

“Without that policy, we would be forced to subsidize employers that discriminate against our own students,” Gerken wrote. “That we will not do.”

She claimed that “contrary to press reports,” the revised policy does not single out any student “based on religion.” By following “basic American values” and those laid out by the ABA, the Yale policy is “far from being a violation of federal law” but instead patterned on it.

*Disclosure

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