BYU's Policy of Kicking Out LDS Students That Convert: Addressed by Managing Director of BYU's International Center for Law and Religion Studies

THEY ASKED MY QUESTION. I couldn't believe it.

"Under BYU's honor code, LDS students who manifest or practice their conversion to Islam, atheism, or Catholicism lose the ability to enroll, graduate, and receive an otherwise-earned diploma. Please address the extent to which this policy burdens religious freedom under the meaning you've proposed. Given that the ICLRS is housed on BYU campus, please also address the effect of perceptions of this policy on the ICLRS's outreach."

Bob Smith, ICLRS Managing Director.
View the video yourself here (my Q takes up 53:30-56:12)

Now I suppose I should back up a bit and give some context before I detail the question's answer, so you can see why this moment was such a big deal to me. A week ago, I blogged about a discussion series I was invited to attend. Hosted by the International Center for Law and Religion Studies, the one hour, 5th December session at BYU Law promised an address by Professor Robert Smith, the ICLRS's Managing Director, on "A Contest of Greatest Importance: The Battle over the Meaning of Religious Freedom."

In the first draft of my blog post, I expressed my angst about not being able to attend. On a closer read of the invite, however, I noticed that invitees could attend by webinar! I signed up immediately, blocked out the time on my work calendar, and tapped my foot on the floor with excitement. I couldn't wait!

In my blog post, I analyzed the invitation's assertion that "Unless we fully understand the meaning of religious freedom, we are in danger of losing this most cherished “First Freedom” of our Bill of Rights as it is inexorably defined away, leaving little left to be protected." I pointed out that the argument begs the question, as it assumes the assertion it sets out to prove: namely, that the narrow definitions of religious freedom it criticizes misconstrue the meaning of religious freedom. If you want to demonstrate the meaning of religious freedom, proposing a broader definition than your opponent only wins the day if you first assume that that the broader definition is the right one: hence you're back at square one.

Dr. Smith's address, however, offered more than the invitation's tautology: he would attempt to construe the meaning of religious freedom. Given his credentials, the importance of the subject, and my own uncertainty about the meaning of religious freedom, I was an easy sell.

This is my "I'm sold" face

Finally, the day came. I found a quiet spot at work, logged in on my smartphone, and plugged in the headphones. I was all keyed up: it felt like Christmas or the big game or something. I guess it's because I really, really care about this issue. About six years ago, my brother converted to atheism. Unfortunately for him, he did so while a junior at BYU. Now, that in itself is not terribly unusual: there are hundreds of atheists, agnostics, and questioning LDS students at BYU. Most of them simply can their doubts, compromise their consciences, zip their mouths, hide their convictions, populate the pews enough to escape the radar, or some other combination that lets them get their degrees and move on with their lives.

My brother's problem was that he's opposed to putting on appearances. He simply ceased the charade of playing Mormon. A few months later he, like many before and since, was quickly and quietly kicked out of BYU.

 You can start Catholic and graduate Mormon. You can start Muslim and graduate atheist.
But you can't start Mormon and graduate: unless you're still Mormon.

University Chaplain. Jolly fellow. Helped me understand how the Honor Code
applies to the non-Mormon students he's charged with shepherding.

A few years after that expulsion, I began law school at BYU. Amongst the several causes I took up during those three years (inmate advocacy and homosexual rights, for instance), was freedom of religion at BYU. I pestered multiple BYU Vice Presidents. I petitioned the Director of the ICLRS. I cornered the BYU Chaplain. I plead with a member of the Honor Code Committee. I made YouTube videos. I wrote and wrote and wrote. 


Like most of my efforts to change the world, though, my activism fell pretty flat. The conversations were painfully frustrating. Here's one with VP John Tanner*:

*I invite these interlocutors to openly speak for themselves, and to publish their views openly, on this issue. Take my recollections with a grain of salt. Though I recorded the conversations while still fresh, my memory is doubtlessly flawed, and the strength of my views on this subject biases my perceptions.

BYU VP John Tanner. Super friendly, inspiring, sincere.
Hardliner on covenant breakers.

Me:  Who is the decision maker I could talk to about religious freedom at BYU?

VP:  What do you mean?  In what way?

Me:  That LDS students who leave the church or join a different religion get kicked out.

VP:  Oh.  That is a Board of Trustees policy; no administrator has that power.  The Board of Trustees is constituted of the First Presidency as executive members, one general authority, one member of the Quorum of the Twelve Apostles, the Relief Society President, and the Young Women’s General President.

Me:  When is the last time this issue came up?  Article of Faith 11 says that we let all men worship how, where, or what they may.  BYU already allows non-members here, we just charge them higher tuition.  Why not just slap the apostates with a higher tuition but still let them graduate like other non-members? 

VP:  I think this was addressed in the 1990’s.  It’s a tough one because of the additional academic consequences of disfellowshipping or excommunicating a student.  If the student confesses something to a bishop, it would make sense to keep the student here to work with that bishop- but if the student is kicked out he’ll probably leave.  Plus, it adds an additional penalty consequence to the church discipline.  As to kicking out students, what makes the difference is whether the student has made covenants or not.  Those who have made serious covenants and then break them- well, in that case…

Me:  I don’t know- I mean, covenant breakers or not, they’re still people.  Article of Faith 11 says “all men-“ whether a person has made covenants or not or broken them or not doesn’t make them non-persons. 

VP:  Well another thing to think about is that church leaders go to Stake Conferences around the church and parents ask them why their faithful children can’t attend BYU.  BYU rejects a lot of its LDS applicants.  Why should it support apostates when there are faithful members who desire so intensely to come here?

Me:  But BYU doesn’t even require you to be LDS to be a student here- we have students from a number of faiths that we admit over LDS competitors.  As long as that’s the reality that argument fails.

VP:  That’s how the Board thinks covenant breakers should be dealt with.  They made serious covenants.

Me:  Well, what about those whose consciences dictate in their third or fourth year that they should leave the church or join another faith?  Must they betray their conscience in order to graduate after sinking years of their life and their money into going to BYU? 

VP:  Yes, some hypocrites do just keep going to church so they can graduate. Others make it a matter of conscience and leave, which sacrifices their ability to graduate.  Religious freedom is a privilege, not a civil right. You can be any religion you want, BYU just puts a consequence on what you decide.

Me:  I wouldn’t argue that it is a civil right.  I acknowledge that in the BYU context it’s not.  It’s a matter instead of burdening which religion someone chooses to be.  Kicking a student who’s about to graduate out because they choose to leave the church or join a different one is a heavy handed response that seems inconsistent with Article of Faith 11.

VP:  I’m just telling you that’s how the councils of the church would deliberate the matter. (conversation end)

BYU VP and former BYU Law Dean Kevin Worthen. Erudite, powerful.
Hardliner on enforcing student's signed waiver of religious freedom.

Kevin Worthen took a different approach. He argued that religious freedom arguments in this context are null, since by signing the Honor Code students contractually forfeit that freedom: thus, there is no injustice in holding them to their contract. Additionally, he said the consequence is justified since we are right. Being the true church, apostasy from the same is always wrong: to assert otherwise is to admit we don't really believe our religion is God's only.

Due to situational constraints, I didn't have time to fully debate the morality of an educational institution's offer to teenagers of a term that they contract away 4-6 years of their religious freedom, nor the extent to which the Honor Code is an enforceable contract (mutuality of obligation, contracts prof?).  When you're trying to catch a busy VP's ear, you take what snippets you can I suppose.

I will point out the contrast between Dr. Worthen's position and that of James Madison, as quoted by Professor Smith in his presentation:

"These two rights were identified by James Madison in his 1785 'Memorial and Remonstrance Against Religious Assessments” in which he stated that the “Religion . . . must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.  This right is in its nature an unalienable right."

Many would agree with Mr. Madison that individual religious choice, specifically the exercise as dictated by conviction and conscience, is inalienable (i.e. it can't be waived: even by signing the honor code).

At the end of the day though, it strikes me as more odd that a religious man, especially one with Dr. Worthen's training, would be inclined to argue that a teenager can waive her religious freedom. Given the presumption (one that I affirm, coincidentally) that the absence of individual religious freedom is dreadful, it should be of little consequence whether the means to that end is a contract by the agent or compulsion by an external force.

I should respond to his fundamentalist "because we're right" argument as well. I must frankly confess that at the time his words deeply disturbed and frightened me. He previously taught one of my law school classes and came across then as a reasonably sensitive and eminently rational man. The same intolerant reasoning he used would (and did) justify all sorts of egregious burdens on those who believe differently or apostatize, including punishing blasphemers and apostates by stoning/burning, etc. I remember at the time sincerely hoping to never be found in a position of being sentenced by that man in a religious context where he is empowered to hurt those convicted.

ICLRS Director W. Cole Durham. Spiritual rock. Ponderous. 

I agreed not to talk about the contents of our discussion, but I will say Professor Durham gave the most thoughtful defense of BYU's policy that I've yet heard.

Anyway, the point of these stories is that this issue means a lot to me. Now let's return to the moment when I plugged in my headphones.

The first thing I noticed on my iPhone GoToMeeting app was a tab called "Questions." Suddenly I realized that I might be able to interact with the speaker! That prospect contributed to my already sweaty palms. There's a certain fear/thrill in asking edgy questions at BYU Law, I've learned. I felt similarly when, during a Q and A, I called out Prop 8 attorney Chuck Cooper on his non sequitur about gays causing the breakdown of the family.

The thoughtful man you see in the background there behind Mr. Cooper is James Rasband, the BYU Law Dean.
A few months after this pic, & right before I started selling my Homosexuality: A Straight BYU Student's Perspective book at the BYU library, he kindly reminded me that the law school could not protect me from the Honor Code Office.

As Professor Smith started, I began crafting my question on the app. After a few mental drafts, I typed it in the question box but did not press send. Prof. Smith then gave what I though was a solid, well-informed, and amply supported lecture about the meaning of religious freedom, as he promised to do. I invite you to read/watch his address yourself.

At last, the big moment came. With a few minutes left in the hour but the presentation not yet over, I took a gamble that he would field questions, pressed send, and squeezed my eyes shut in the hopes that webinar participants would be included.


Sure enough! The very first question was mine. Some aide read it aloud on my behalf (bless you, whoever you are), loud and clear. I was thrilled out of my shoes. I include the unadulterated transcript here. (The video is here: my Q takes up 53:30-56:12).

This question comes from an online participant. "Under BYU's honor code, LDS students who manifest or practice their conversion to Islam, atheism, or Catholicism lose the ability to enroll, graduate, and receive an otherwise-earned diploma. Please address the extent to which this policy burdens religious freedom under the meaning you've proposed. Given that the ICLRS is housed on BYU campus, please also address the effect of perceptions of this policy on the ICLRS's outreach."

S: Okay that was a, that was a good question a good loaded question. Could everyone hear the question?

I think there's a lot to that and I will have to punt a little bit, let me just say this, that religious societies can define who are members of their society. That's part of church autonomy. It's part of internal decision making. Just as a church can excommunicate one of its members, it can do something less severe by withholding certain privileges.

I never talked with the university about this policy, I don't know how it's been used in practice. So my understanding is very limited, but I would suggest that that is one way to think about that and to think about whether or not society does have a right to withhold its fellowship, if you will, to others who reject its religion.

Now this is short, however, of legal impediments. Obviously a person who no longer studied at BYU would certainly have the right to study at another university, so a fundamental right has not been taken away if they leave.  Just in the same way that someone who is excommunicated from the church, they have the right to join another one if they choose or to comply with the requirements to be reintroduced into the fellowship of that church.

In terms of ICLRS and our standards, I think that's what we would do, we would just I would assert to you that we would consider those values, and the right of religious associations to have internal decision making power.

That was the answer to my question.

Now remember to cut the man some slack: Q and A puts you on the spot, and it's a tough position to answer from, even for the well-trained. That being said, my analysis in blue.

S: Okay that was a, that was a good question a good loaded question. Could everyone hear the question?
Why thank you, I thought of it myself! :-)
 
I think there's a lot to that and I will have to punt a little bit, let me just say this, that religious societies can define who are members of their society. That's part of church autonomy. It's part of internal decision making. Just as a church can excommunicate one of its members, it can do something less severe by withholding certain privileges.

I agree so far. Yes, religious societies can define who the members of their society are.

Unfortunately, that point is completely, 100%, and in all other ways, irrelevant. Why? Because BYU is not a religious society! It is instead an independent, domestic nonprofit corporation (entity # 565683-0140 in case anyone was wondering). The LDS Church arguably doesn't exist (though fascinating, that shall wait for another discussion), but to the extent that it does via COP and CPB, you can see for yourself that it is wholly distinct and separate from BYU.

Yep, BYU is a baby boomer

Founding BYU Law Dean Rex Lee argued CPB v. Amos, the case Dr. Smith referenced in his address.
Said SCOTUS: "Undoubtedly, Mayson's freedom of choice in religious matters was impinged upon,
but it was the Church (through the COP and the CPB), and not the Government,
who put him to the choice of changing his religious practices or losing his job."

Isn't corporate history fun?

Now perhaps BYU is its own religious society independent of the LDS Church. Students, both LDS and non-LDS, are now members of two religions (presumably with President Monson as head in the one, and LaVell Edwards in the other). We could call all those admitted or employed at BYU "members" instead of "students" and "professors." We could make faculty the priesthood leadership (but I guess then you'd run into the women-in-governance problem) and sing hymns like "I belong to the church of B...Y-U." Unless the LDS Church or BYU starts permitting dual religious membership, the two societies could arguably expel/excommunicate their members for religious double-dipping. Steve Young can be Jesus and Cosmo an apostle. I suppose the hazing of Freshman would suffice for the initiating ordinance.

Additional absurd results obtain if gaining student status is equated to membership in the LDS Church, and losing student status to excommunication. For one, the hundreds of non-member students are in for a rude awakening. Second, Mormons who graduated or began but never graduated are no longer Latter-day Saints. (I for one am a temple-attending, enthusiastic Mormon, so I sure hope that's not the case.) Third, a 4.0 GPA would automatically guarantee exaltation. Last, you'd have to submerge acceptance letters in water before sending them out, as us Mormons believe in baptism by immersion.  ;-)

More seriously, Professor Smith's response to this question deeply mistakes the facts, and exposes a common misconception about this crucial issue. As evidenced by the presence of non-Mormons in student ranks, and the independence of the two entities, it is entirely feasible for an LDS student to lose her membership in the LDS church (whatever that putative membership means: since COP and CPB are corporations sole, unlike other churches they rather awkwardly have only one member each, bulging the LDS Church membership ranks to a respectable and very consistent 2) while retaining her student status. BYU, a corporation engaged in the business of selling secular academic degrees, doesn't look like, feel like, or act like a religious society. If you were to step in BYU (and I have: spent 8 years so stepping in fact), it would not smell like a religious society. Since BYU is not a religious society, it is quite impossible for it to exercise church autonomy.

During his presentation, Professor Smith used the word "organization," "association," "entity," or "societies" about 1.5 times per minute (73 times in 50 minutes). Given this substantial emphasis and the nature of his professional work, it is very surprising that his organizational analysis fails so completely.

I never talked with the university about this policy, I don't know how it's been used in practice. So my understanding is very limited,

You don't know how it's been used in practice? You're the Managing Director of a Center on Law and Religion Studies, and you don't know about religious freedom on your own campus? That's something akin to a professional landscaper who, though he presumably walks from his home to his car for work, somehow never notices the overgrown, irregular, sloping path he treads each day.

I've driven international delegates to the ICLRS's annual conference. The ICLRS invites representatives from dozens of countries to come to BYU to learn about protecting religious freedom. How would the Muslim delegates feel to learn that 98% of the students on that campus can only choose to follow Mohammed (peace be upon him) on pain of the equivalent of job termination (specifically, the loss of the ability to enroll, graduate, or have an earned degree post)? In his 7 years as Managing Director, has Professor Smith really never considered the inner vessel, or the potential perception of hypocrisy that a religious freedom conference is hosted on a campus that for tens of thousands adds the specter of expulsion to the already difficult business of finding one's feet during the challenging years of emerging adulthood? 

In any case, as an expert on religious freedom who just articulated the meaning of religious freedom, I expect a far better performance in applying that articulation to a real life question.  Put the lesson you just taught us to work! Less than ten minutes ago you articulated a specific, structured approach to these questions. Permit a reminder during which I evaluate your application of your own approach, line by line, in blue. You said:

"I have attempted to lay out a straightforward description of religious
freedom that can be easily understood and used to defend this right in the battles
looming ahead. Of course, other may have additional suggestions. I welcome those.  There is a battle over religious freedom at BYU, so your description is applicable here.

The fundamentals of this definitional approach are to first identify the groups
claiming the right of religious freedom,

1) Individuals (and families) The question stem identifies "LDS students who manifest or practice their conversion to Islam, atheism, or Catholicism." These LDS students are individuals. Not only do you entirely sidestep the soul-wrenching internal struggles of theses LDS students whose consciences dictate that they should follow Allah, or leave religion, or become Catholic: not once in your analysis did you identify these students as claimants of the right of religious freedom.
Since (A) manifesting conversion and (B) practicing Islam, atheism, or Islam are both obvious religious exercises, yours is a glaring oversight.

2) Religious associations, and You spoke at length about the religious freedom claimed by a religious association: presumably, in this case, the LDS Church. However, your identification is dead wrong, as the situation presents no burden on the religious freedom of the LDS church, including its internal autonomy. As explained above:
(1) The policy is owned and administered by BYU, which is not a religious society. Some would go as far as to claim that it is instead a university (come to think of it, that's how you described it immediately preceding) whose primary transaction is the granting of secular academic degrees.
(2) The LDS church's ability to decide its membership is not affected or implicated by the policy, church membership and student status being entirely independent. 

3) Society at large You appropriately did not mention society, since public square analysis is not relevant in the context of the question.
Doing so, I believe, will direct attention to the rights of religious associations and
society that are often overlooked. You did direct attention to religious associations, in harmony with your attempt to counterbalance what you claim is their relative neglect. In doing so, you have gone too far the other way, and entirely neglected the religious rights of individuals.
Second, I have attempted to identify key principles underlying the right of religious
freedom from each group.

1) For individuals, this is the
a. right of conscience This right is directly implied by the question stem, as manifesting conversion and conversion itself are often, if not usually, matters of conscience. Given how deeply held and intimate religious belief, identity, and practice is to those who have typically spent decades in the LDS Church, the rights of conscience of LDS BYU students merits special (or at least the normal level of) protection. LDS students that convert fear to raise their voices, explore their questions, and direct their lives because of the magnitude of consequences BYU chooses to impose on them. No analysis is complete that fails to at least acknowledge the reality of the tears, struggle, depression, and relational strain experienced by students whose religious minds are either questioning or convicted of a path besides that offered by Mormonism.
The 18-25 age range is the peak time during which, according to some emerging adulthood literature, people are most likely to leave their childhood faith (see e.g. Arnett, Emerging Adulthood). Were Joseph Smith to have and proclaim a First Vision while an LDS student at BYU, your analysis would unquestionably affirm his consequent expulsion.
To summarize, unnecessarily adding to the already difficult stress of a faith transition clearly burdens the right of conscience, a fact you omitted. 

2) For religious societies as entities, this is the
a. right to not be subject to discrimination vis-à-vis other organizations,
b.  the right to internal church decisionmaking or autonomy, and
c. the right to retain the historic uniqueness of religious associations. You spoke at some length about church decision making; however, as is likely becoming monotonous by now, such arguments are irrelevant as there is no church in the situation whose uniqueness, autonomy, or discrimination is threatened. 

3) For society at large, this is the
a. obligation to permit and the right to hear religious voices in matters
of public policy." Again, not germane here.

This exercise feels so reminiscent of law school exams; except perhaps that I'm doing the grading. Ugh, that reminds of taking the bar.

Anyway! Let's continue the analysis, now that we've finished applying his analysis to his own application of that analysis.
but I would suggest that that is one way to think about that and to think about whether or not society does have a right to withhold its fellowship, if you will, to others who reject its religion.

Are you suggesting again that the ability to enroll or have an earned degree post is fellowship of a religious society? That is bizarre. Membership, disciplinary status, temple worthiness, the privilege of participating in meetings or rituals: these are the indices of religious fellowship, not whether you can sign up for weightlifting next semester. In any case, once again, BYU is not a religious society.

Now this is short, however, of legal impediments. Obviously a person who no longer studied at BYU would certainly have the right to study at another university, so a fundamental right has not been taken away if they leave.  

I agree that no fundamental right to study at a university has been deprived. I would note however, as you fail to, that barring a current student from enrolling or graduating is pragmatically equivalent to an employment termination, and as such is a heavy burden to most students. Consider if you were fired from your current job. Wouldn't you, at the least, have to pay transition costs such as a period of lost wages between jobs, the uncertainty of job searching (especially after being involuntarily terminated), having to establish new networks, and losing the comparative advantage of the institutional understanding you'd earned through your work to-date? The consequences are similar for university students.

Additionally, again as a practical matter, it is not always feasible to pick up and go elsewhere, as BYU credits frequently do not transfer to other educational institutions. Three examples: 

1) Religious credits:  many schools do not accept these.
2) Graduate or unique programs: very few credits are accepted. MPA programs, for instance, usually accept no more than 6 credits from a transfer. Students in the final or penultimate semester of their programs thus lose 1-2 years worth of credits, plus the opportunity cost of the year they spend repeating coursework.
3) Law school: obligated to only graduate students that spend their last two years in the graduating school, a law student in her last or penultimate semester has to spend five years with its attendant tuition and opportunity cost to obtain a three year juris doctorate.  Identifying a fundamental right to study at a university is relevant, though barely. Omitting likely, heavy real life consequences while spending time addressing a barely relevant right reflects poorly on your grasp of the burden on the individuals' religious freedom.

Additionally, you euphemistically speak of "a person who no longer studied at BYU" and "if they leave" without attributing the actions (barring enrollment and graduation) to the actor (BYU). Phrases that would reflect an understanding of who is claiming (step 1 of your approach) and who is restricting religious freedom include "a student that BYU bars from enrolling" and "if BYU expels." The students in the question stem did not leave; they manifested conversion or practiced a religion. It was the institution who acted in response by penalizing the students' behavior.

Just in the same way that someone who is excommunicated from the church, they have the right to join another one if they choose or to comply with the requirements to be reintroduced into the fellowship of that church.

That's nice, though irrelevant and not entirely accurate. The students in the question stem were not excommunicated: instead, they were barred from enrolling and graduating. Additionally, as a factual matter, individuals are not legally privileged to be reintroduced into a religious society's fellowship. A religious society could permanently excommunicate a member without recourse and bereft of the obligation to provide a pathway for return.

In terms of ICLRS and our standards, I think that's what we would do, we would just I would assert to you that we would consider those values, and the right of religious associations to have internal decision making power.

You conclude with your weakest argument, as internal decision making is neither threatened nor implicated by the scenario.

As an analytical endnote, you arguably had at least one success. According to your own religious tenets (at least presumably), religious associations are temporary institutions whose duration and importance pales when compared to the immortality and import of a human soul. Your analysis favors the actions of churches over people, and exalts the value of the agency of a corporation above the value of preventing grievous and unnecessary intrusions on the religious agency of what the law calls "natural persons" (and the scriptures, "children of God"). Your answer thus succeeded in giving absolutely zero consideration to the value of protecting the religious free agency of God's sons and daughters, the only entities in the scenario worth saving.

And that does it: response analyzed.