And, as it turns out, Dean Moran also sent the letter as an attachment to her own email that she sent to alumni.
Mark Scarberry Pepperdine UCLA Law School Class of 1978 Sent from my Verizon Wireless 4G LTE Smartphone -------- Original message -------- From: "Scarberry, Mark" Date:02/28/2014 6:41 PM (GMT-08:00) To: Law & Religion issues for Law Academics Subject: RE: The pain of discrimination and the role of government I should clarify that the email was from the president of the UCLA law alumni group. Dean Moran’s letter was an attachment to that email. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Friday, February 28, 2014 6:37 PM To: Law & Religion issues for Law Academics Subject: RE: The pain of discrimination and the role of government Greg says that “it simply is not the proper role of government to enforce standards of courtesy,” and that he does “not have a legal right in a free society to demand that other private citizens extend such courtesy to me or even refrain from being discourteous.” (He also notes that some forms of interactions may deprive a person of educational tools, etc. and may properly be regulated.) By coincidence, I received an email today, as a UCLA law alum, from the UCLA Law School Dean (Dean Rachel Moran), discussing the law school’s commitment to non-discrimination, tolerance, and civility. The email included as an attachment a letter that was sent to all the students. Professionals should be civil, and encouraging civility among future lawyers is a good thing. But a demand for civility can turn out to be a demand that one not offend others by expressing views that they don’t like or by expressing them too forcefully. I find it troubling that the letter Dean Moran sent to the students says that “[w]e cannot tolerate any form of discrimination or incivility at UCLA Law.” It makes sense not to tolerate wrongful discrimination, though there may be disagreement about what actions constitute wrongful discrimination. Consider UCLA’s discrimination based on LSAT scores among applicants who are perfectly qualified to be good lawyers. (And cf. Christian Legal Society v. Martinez. And cf. affirmative action of various kinds.) But a demand by a state university that students be civil – with whatever consequences might follow for the student who is too strident in expressing his or her views – may turn out to be a form of censorship. I wonder whether UCLA would consider it to be uncivil for one student to accuse another of being a bigot for not supporting same sex marriage, or for supporting broad protection of conscience for those who don’t want to be forced to facilitate or participate in the solemnization of such marriages. One hopes that there will not be a double standard. I suspect that some of the posts here on these topics might be considered uncivil. Should state university students be prohibited from writing or saying such things? Another note concerning the letter Dean Moran sent to the students: One of the bullet points is entitled “Interfaith Quiet Room.” She writes that “[b]y fall 2014, we will have a room set aside for students to contemplate, meditate or offer private prayers.” Discuss. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Friday, February 28, 2014 5:12 PM To: 'Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)' Subject: The pain of discrimination and the role of government Over the past day, I’ve withheld from posting to the list, wanting to hear other points of view, see how the conversation unfolds, and learn from others (especially from those with whom I tend to disagree and perspectives that contrast with mine). I hope what follows may be woven into the tapestry of today’s other posts. In reading posts poignantly describing the pain of suffering discrimination, I was reminded of something that I observed on the streets of a major American city to which I was traveling. On a major downtown pedestrian thoroughfare, two young people, looking to be in their early twenties, were handing out flyers and trying to engage passers-by in conversation. Their t-shirts, leaflets, and spoken words readily identified them as evangelical Christians preaching the Gospel. Their persistence in the face of a rather disdainful audience, as well as the tone and message, confirmed that they were speaking from the heart and acting in furtherance of what they understood to be a genuine calling to share good news with others. The response was anything but receptive; indeed, it was, no two ways around it, frequently hostile and, yes, bigoted. While most of those walking by simply ignored the two or gave them a cold stare as they passed, several made derogatory remarks, laughed or jeered loudly, or even told them to “[epithet deleted] off.” No one physically accosted the two, and the comments did not provoke any violence, so I don’t think it could be called disorderly conduct. But the targeted response was despicable in manner. The two evangelists never responded in kind, instead saying “God bless you” or “Jesus loves you” to each person. But it was plain that the hostile treatment left its psychological mark. The young woman, who I am guessing was the veteran at street ministry, seemed less impacted. But the young man was shaken, as I could tell from his mannerisms, what looked to be tears in his eyes, and the quaver that appeared in his voice after he received a particularly vituperative comment. Now what these two evangelical Christians experienced was plainly “discrimination.” And it was blatant and invidious discrimination. The remarks were not merely negative and disrespectful, but many were hateful and cruel. And the basis for the discrimination plainly was their religious identity and message. In the words of more than one poster to this list over the past day, these two were suffering an injury to their dignity, the pain of rejection, and the shame of stigma based on their identity. Despite the undeniable fact that these two were the victims of discriminatory treatment and that they plainly felt the sting of that discrimination, I am guessing that all or most on this list will agree with me that it would be inappropriate to use the power of government to prevent such unfortunate behavior in the future or to pass a law that would compel those who pass by to treat evangelists with respect. And I think that choice to refrain from use of government and law is correct for at least two reasons. First, a legally binding directive to treat evangelists – or for that matter others who present a message – with respect, or instead a government regulation that induces such respect at the cost of some type of sanction or withheld benefit, would be difficult to separate from an improper government endorsement of the message at issue. At the very least, legal action would put the heavy thumb of the government on the side of refraining from expressing opposition or indifference to a value-laden message. But, second, it simply is not the proper role of government to enforce standards of courtesy or to wield legal power (as contrasted with appropriate exercise of persuasion) to shape human interactions. I definitely assert a moral right to be treated with dignity, but I do not have a legal right in a free society to demand that other private citizens extend such courtesy to me or even refrain from being discourteous. (By statute, of course, I do have the right to object to even private discrimination on certain grounds when it denies me the necessary tools for educational and economic opportunity. That’s something on which I’ll comment more later – but this post is already too long. My specific point here is that the real pain of discrimination alone, unaccompanied by something concrete like an economic deprivation, is like other failures in human behavior that are not properly the subject of government and where the imprudent use of law often transgresses the fundamental rights of some while attempting to address the grievances of others.) Instead, it belongs to all of us, with personal commitment, through investment of time and talents, by telling our stories, and in how we live our lives, to enhance human dignity. We should resist the temptation to delegate that responsibility to government, through its use of power or its imposition of laws and liabilities. In a free society, we do not empower the government to shape our souls. That remains our job as the people. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545
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