AALS Handbook | Statements of Good Practices
Interpretive Principles to Guide Religiously Affiliated Member Schools as They Implement Bylaw Section 6-3(a) and Executive Committee Regulation 6-3.1
These principles are intended to guide religiously affiliated member schools as they implement Bylaw Section 6-3(a) and revised ECR 6-3.1. They seek to strike a fair and sensitive balance between the values of religious liberty and nondiscrimination based upon sexual orientation. These principles are based on the premise that Bylaw 6-3(a) protects against discrimination on the basis of sexual orientation. When applied to religiously affiliated schools, that absolute protection of the status of sexual orientation continues, but in the unique context of religious liberty, Bylaw 6-3(a) and ECR 6-3.1 should be interpreted to permit the regulation of conduct when that conduct is directly incompatible with the essential religious tenets and values of a member school. These principles will guide the Accreditation Committee in reviewing whether a member school is in compliance with the Association’s Bylaws and Executive Committee Regulations.
1. We reaffirm that the academic freedom principles set forth in ECR 4.3 bind all member schools. This principle in no way changes the current situation, since religiously affiliated schools have never been exempt from academic freedom principles. However, it is important to recognize that, insofar as alleged discrimination occurs in a context that also suggests the denial of academic freedom, the fact that the acts occurred as a result of a religiously held tenet and value in no way alters the need to determine whether the individual’s academic freedom has been denied.
2. No school may make any direct inquiry into the sexual orientation of applicants for admission or candidates for faculty or staff position. Given the importance of assuring the privacy interests of applicants, this principle affirms that inquiries into an applicant’s sexual orientation are proscribed.
3. No individual or organization of students, staff, or faculty should suffer disadvantage solely because of the status of the individual’s sexual orientation or the organization’s focus on the subject of sexual orientation. Recognition of individual dignity and the need for all persons to coexist require all institutions to refrain from discrimination based solely on the identified status of an individual or on an organization’s focus on the subject of sexual orientation. This principle recognizes that students, staff, and faculty have a right to establish such organizations. At the same time, however, religiously affiliated institutions which have core values directed toward conduct within their communities are entitled to protect those values if they do so in a manner consistent with principle #4 below.
4. In any circumstance in which a school finds that the conduct of an individual or an organization conflicts with the religious values of the school, the school shall make a good faith examination whether and in what ways it can accommodate the rights of the individual or the organization under Bylaw 6-3(a) consistent with the school’s essential religious tenets, and it shall act accordingly. The key to coexistence and tolerance between groups of divergent beliefs is the willingness to try to accommodate each other’s beliefs to the fullest extent possible. In affirming the essential importance of both religious liberty and nondiscrimination, this principle provides that religiously affiliated schools will periodically review and evaluate their policies and procedures so that exclusion of members from or limitation on the participation of members within the law school community based upon conduct occurs only to the extent necessary, in compelling circumstances, and when essential religious tenets require such a result. The conclusions reached after such a searching inquiry may change over time, since few things remain static, and this principle affirms the continuing need for careful and serious reflection when the invocation of a particular rule or tenet threatens the right of an individual or an organization to be free of discrimination. This principle is not designed to suggest the appropriate outcome of any particular conflict, but it does impose a good faith obligation on the institution to make whatever accommodations appear feasible under the circumstances presented. Moreover, if the essential religious tenets lead to a prohibition of all nonmarital sexual conduct, the school must, nevertheless, comply with Bylaw 6-3(a), which prohibits differences in treatment based on sexual orientation.
5. Religiously affiliated schools have an obligation to give clear notice of the religious tenets and values of the institution to prospective members of the law school community prior to their affiliation with the school. This notice requirement parallels that now found in ECR 6-3.1, which pertains only to the preference that institutions may give to their coreligionists. However, the requirement seems equally important here, to the extent that the preceding principles acknowledge that there may be some circumstances in which, because of a deeply held religious tenet and value, a particular religiously affiliated institution may engage in practices that otherwise would be deemed to violate the regulation. It is most important that individuals seeking to become members of a particular law school community become fully aware of the culture of the institution so that they can make informed decisions about whether they will feel comfortable in an environment where they will be expected to conform their behavior to those tenets and values. In this regard, if the school has a conduct code that implicates the concerns addressed in these Interpretive Principles (including a ban on all nonmarital sexual conduct), the school’s bulletin and admissions materials should state these restrictions clearly so as to avoid misunderstanding.
Adopted by the Executive Committee
August 5, 1993