INTRODUCTION AND LITERATURE REVIEW
Exploring attitudinal and legal perceptions of diversity and tolerance on a macro view
The founding fathers did not include the term "diversity", nor did they include the phrase "tolerance" in the First amendment. In founding father George Washington's address to the Hebrew Congregation in Newport Rhode Island in 1790, (Karp, 1991) a sense of respect for religious tradition and expression is clearly present, but more as a mater of civility than law. "Diversity" and "tolerance" are more modern terms used to indicate modern concerns related to freedom of expression and freedom from government sanctioned religions, government prohibitions of religious practices, and inhibition of religious expression. The desire to create mutual respect and a sense of mutual beneficence is both old-fashioned, and modern; multiculturalism is an ideal which has yet to be realized, though it is still a vital and worthwhile goal, according to Tilson and others (Tilson, 2011) (Thomas, 2008) (Barnard, 2010).
Basic individual freedoms, such as freedom of expression and freedom of religion (Amendment I, 1791) are guaranteed to each of us by the United States Constitution's first ten amendments, known as the Bill of Rights, ratified December 15, 1791. Every alert school age Jack and Jill knows this; but do our highly educated, intellectually refined and astute scholarly faculty know how these rights affect their workplace environment...and whether the private university workplace differs from the public University workplace in regard to religious expression, tolerance and diversity?
There is a need to open a conversation on this topic; many scholars have described the potential benefits of heightening awareness and commencing positive change (Harris & Ackah, 2011) (Wegner, 2006) (Farrell, 2003) (Sorenson, 1996); others remark on the need to neutralize the influence of religion and thus the terms tolerance and diversity are sometimes a counterweight to favoritism (Hanson, 2008) (Barnard, 2010) (Schultz, 2007), or so-called "mainstream" viewpoints (Bryant, 2011) (Huntington, 1996)(Lichterman, 2008). Many look to institutional culture or policies for guidance in preserving individual rights, like those described in the first Amendment; others look to the courts for definition, boundary making and interpretation of these complex issues. The climate and culture of the modern college campus is a perfect laboratory to experiment, though in contrast to a pristine scientific lab, the college campus cannot truly be controlled, made uniform, nor produce results that can be perfectly replicated.
Does the law clarify or confuse?
The Constitutional guarantee (US Constitution, 1791) for separation of church and state is provided for in the "Establishment Clause" of the first amendment, "Congress shall make no law respecting an establishment of religion,"; this prohibition, this statement of restriction upon Congress is simple in verbiage, but complex in meaning. How can these words offer both individual protection and governmental restrictions?
To address this question, one must also grapple with the functionality of law and the system of judicial review of laws. A shared belief may or may not result in a shared perception; this is evident to scholars who may study the intersections of university practices and religious tolerance and diversity. We may well ask, what is the role of the university as it relates to religion, expression, diversity and tolerance (Harris & Ackah, 2011) (Schultz, 2007)and may find no true peaceable kingdom is possible (Tilson & Venkateswaren, 2004) and yet the commitment to opening and maintaining a dialogue (Dufford, 2009) (Gray, 2010) is tremendously important to the integrity of the organization (Davis G. B., 2009) (Marchand & Stoner, 2012). When we attempt to reconcile practices and policies we may realize the impossible complexity of achieving a singular viewpoint, particularly and certainly when we realize the actions which seem beneficial to some are branded as onerous to others.
Over many years and many cases mainly involving religion in public schools, the Supreme Court has developed three "tests" to be applied to religious practices for determining their constitutionality under the Establishment Clause. These are the Lemon test, the coercion test and the endorsement test (Lemon v. Kurtzman, 1971) (Lee v. Weisman , 1992) (Allegheny County v. ACLU, 1989). The principles of law found in these cases are used to decide most legal questions about the permissibility of actions, especially those actions relating to universities, that arise and are related to religioous expression, establishment and inclusion or exclusion. Understanding the basic tenents of these basic cases can be useful and they are described below.
The Lemon Test
Based on an important 1971 United States Supreme Court case (Lemon v. Kurtzman, 1971), the Court will rule a practice unconstitutional if:
It lacks any secular purpose. That is, if the practice lacks any non-religious purpose.
The practice either promotes or inhibits religion.
Or the practice excessively (in the Court's opinion) involves government with a religion.
The Coercion Test
Based on a 1992 case (Lee v. Weisman, 1992) religious practices are examined to see to what extent, if any, pressure is applied to force or coerce individuals to participate. The Court has defined that "Unconstitutional coercion occurs when: (1) the government directs (2) a formal religious exercise (3) in such a way as to oblige the participation of objectors."
The Endorsement Test
Finally, drawing from an 1989 case (Allegheny County v. ACLU, 1989), the practice of the organization or governmental entity is examined to see if it unconstitutionally endorses religion by conveying "a message that religion is 'favored,' 'preferred,' or 'promoted' over other beliefs."
These tests are provided to permit a methodical and structured examination of the practice, and then permit a decision to be made to determine whether the practice is constitutional. For example, the constitutionality of displaying a monument to the Ten Commandments on the grounds of the Texas state capitol (Van Orden v. Perry, 2005) came before the USSC; is such a display a violation of the anti-establishment clause?
In that case, Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which Justices Scalia, Kennedy, and Thomas joined. CJ Rehnquist stated that, "The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. We hold that it does." (Van Orden v. Perry, 2005).
In this simple explanation of the legality of the potentially offensive behavior, the opinion goes on to explain that historical references to religion, law, and tradition can and could be disengaged from a sponsorship or promotion of a specific religion or religious viewpoint. Does this case pose yet additional issues for the far future ... for example, what is the longterm effect of excusing historic, questioning current and prohibiting future displays that may have religious undertones or religious associations? Scholars who study diversity and tolerance in the context of judicial decision-making have noted the difficulty of applying the general pronouncements of law and policy to specific examples affecting everyday campus life (Rigaux, 1995) (Comegys, 2012) (Roberson, 1998). There are some who have observed the differences between pre and post September 11, 2001 attitudes with both trepidation and cautious optimism (Putnam R. D., 2001) (Davis, Dunn, & Davis, 2004); others have found a way to describe, in their own voice, the way a group, in this case, campus ministers, feels about the state of religious tolerance and diversity on campus (Davis, Dunn, & Davis, 2004).
In 2010, Justice Ginsburg delivered the opinion of the Supreme Court in a case specifically about public universities and the constitutionality of their attempts to restrict student organizations based upon viewpoint, including religious viewpoints. (Christian Legal Society Chapter of Hastings College of the Law v. Martinez, 2010).
In the Hastings Law case, a lovely trail of precedents is provided to the reader. These past decisions are instrumental in guiding decision-making. We are informed in this case, that discrimination by a university against students or student groups based upon the group's viewpoint is NOT permitted. According to Ginsburg, "in a series of decisions, this Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school sponsoredforums because of the groups' viewpoints. See (Rosenberger v. Rector and Visitors of Univ. of Va., 1995)); (Widmar v. Vincent, 1981); (Healy v. James, 1972))."
Ginsburg identifies the main question presented to the USSC by this case,
"May a public law school condition its official recognition of a student group--and the attendant use of school funds and facilities--on the organization's agreement to open eligibility for membership and leadership to all students?" (Christian Legal Society Chapter of Hastings College of the Law v. Martinez, 2010).
The importance and the essence of the historical perspective cannot be diminished; to truly understand what activities, actions and behaviors are legal and which are unconstitutional under the current USSC guidelines requires knowledge and comprehension of these precedential building blocks. In the Rosenberger case, the Widmar case, and in Healy v. James, challenges to public university actions and policies are minutely explored and analyzed. These cases form compelling links that can bridge historic behaviors to current contemporary behaviors; indeed the irony is that well-reasoned intentional actions may survive based upon conflicting core values that have been recently...