Here we go again, once more into the legal thicket that surrounds private colleges and universities, on the cultural left or right.
Once again, let me note that the school involved in this story -- California Baptist University -- is a member of the Council for Christian Colleges and Universities, the national and global network in which I work and teach, as director of the Washington Journalism Center. I have close friends and associates at California Baptist. I also am a graduate of a major Baptist school, Baylor University, and I have taught at three different Christian schools, as well as a major seminary.
Come to think of it, I have also had positive professional dealings -- via an internship for one of my WJC students -- with The Press-Enterprise in Riverside, Calif.
Thus, it goes without saying, that my goals in this post will be quite narrow and journalistic. I want to note, once again, that reporters need to understand that private colleges and universities (let me stress, that is this true on the cultural left as well as the right) are voluntary associations and operate differently than state schools. That's a simple fact.
Now, let's jump into this story, with offers a variation on themes that pop into the headlines every year or so. The key is that a transgender student is suing California Baptist for "allegedly expelling her because of her gender identity."
Domaine Javier, 25, was expelled in August 2011 after she revealed in an episode of MTV’s “True Life” that she is biologically male. “CBU suspended her, excluded her from campus, and expelled her for one reason: she is transgender,” the lawsuit said.
The suit, filed Monday, Feb. 25, in Riverside County Superior Court, accuses Cal Baptist of violations of state anti-discrimination laws and breach of contract. It asks for $500,000 in damages.
Theodore Stream, an attorney for Cal Baptist, said he had not seen the lawsuit and declined to comment. University documents attached to the lawsuit say that Javier was expelled because of “fraud, or concealing identity.”
Javier said a Cal Baptist official told her she inaccurately stated on her university application that she is a female. ...
Javier said in the 2011 interview that Cal Baptist officials told her they discovered her appearance on an MTV “True Life” episode titled, “I’m Passing as Someone I’m Not” while conducting a background check on her.
Of course, part of the problem in the story is that the university cannot, at this point in the legal process, make any comment whatsoever -- in part because of privacy concerns related to what, I would assume, was a disciplinary process on campus. The school literally cannot comment.
However, the story does make it clear that the legal team working on Javier's behalf is trying to break some new ground in the law. In effect, it is arguing that California Baptist is not religious enough and that freedom and association and religious liberty are not relevant to a school that accepts a wide variety of students. Yes, this is very similar to the point being debated in the Health and Human Services mandate cases, in which the religious-liberty rights of churches are protected, but not religious ministries that deal with the public. Religious liberty, when facing disputed claims of civil rights, stops at the church door. The "free exercise" of religion does not include the marketplace, in this view of the Bill of Rights.
Thus, readers are told:
The discrimination claim is based on the state Unruh Civil Rights Act, which bars discrimination based upon gender identity. But Jim Wood, a senior pro bono counsel for the San Francisco-based Transgender Law Center, said the law generally does not cover private universities.
Southwick argued that Cal Baptist, which is open to people of all faiths and primarily offers degrees in secular fields, functions as a business establishment offering services to the general public, which means it is covered under the law.
“We’re not talking about a private seminary or Bible college,” he said. “Just because Cal Baptist is a religiously affiliated institution doesn’t give it a right to discriminate.”
The story does not -- this is crucial -- mention one absolutely crucial detail, one linked to the forming of the voluntary association.
What kind of doctrinal covenant did Javier voluntarily sign when entering the school? There is no mention of this legal issue at all.
Does the school have a right to defend centuries of Christian doctrines on sexuality? What did the doctrinal and lifestyle covenant state and did Javier sign it?
In discussing a previous case at a Christian college in California, I noted here at GetReligion:
So what we have here is a private college, a voluntary association, that is governed by a doctrinal covenant. ... Private colleges, on the left and right, can do this sort of thing. It’s perfectly legal. Liberal schools can insist that their own doctrines and policies be enforced, such as that famous clash between Yale University and an Orthodox Jewish student over dormitory policies. Yale had every right to force its moral agenda on this student, even if it violated his faith. He signed on the bottom line and volunteered to go to Yale.
And later on, in that same post:
Private schools are allowed to have covenants. However, they are supposed to be written in a way that students know what they are getting into, what rights they are choosing to forfeit. If a liberal school wants to slash the First Amendment rights of evangelicals, administrators are supposed to clearly say that in the covenant. If traditional Christian schools want to defend traditional doctrines on sex, their leaders must say so openly and clearly.
Once again, let me note that this is the same legal issue being discussed in Nashville, where the liberal, private Vanderbilt University has driven some traditional Christian groups off campus because their leaders insist on requiring members and group leaders to affirm codes of defining religious beliefs.
Private schools can do that, as long as they are open and clear about the beliefs -- the secular doctrines, in some cases -- that define their voluntary associations.
So here are a few essential journalistic questions: What does the California Baptist University doctrinal covenant state, the document that Javier must have voluntarily signed in order to join this voluntary association? Also, is the legal team for Javier essentially arguing that California Baptist must follow the state's doctrines on sexuality, as opposed to centuries of Christian doctrine? What do the lawyers on both sides say about the First Amendment implications of that stance?