U.S. Supreme Court Denies Review of Bishop

The U.S. Supreme Court recently denied University of Alabama professor Dr. Phillip Bishop a review of the 11th U.S. Circuit Court of Appeals ruling, leaving experts confused about the limitations of academic freedom and Christian professors wondering if it affects religious expression in the classroom.

In a sweeping decision in June, the Supreme Court decided not to hear the case of physiology professor Bishop, along with several cases involving bans on religious freedoms. Christian faculty in the 11th circuit-Georgia, Florida, and Alabama-and across the country question how this will affect expression of their faith in the classroom.

The appellate court ruled in March that the University of Alabama, and other universities within the 11th circuit, have the authority to regulate what goes on in the classroom.

"The university's conclusions about course content must be allowed to hold sway over an individual professor's judgments," the 11th Circuit Court wrote.

Experts agree that the ruling is a precedential restriction of academic freedom in general. Religious expression in particular was not addressed by the court and therefore was not directly affected.

"This is principally a free speech case. It was litigated as a free speech case; it was decided as a free speech case," said University of Chicago law professor Dr. Mike McConnell, also the lead lawyer in the petition for review by the Supreme Court.

"I don't think anything has been settled on this issue," said University of California at Berkeley law professor Dr. Phillip Johnson. "In the long run it will be hard for the authorities to say you can advocate all kinds of controversial opinions in the classroom, but not on this one subject."

Steven T. McFarland, director of the Christian Legal Society's center for law and religious freedom, said, "Outside of the 11th circuit they [Christian professors] don't have to be creative [in their witness].

"I don't think we have to be cowed into submission or intimidated to compromise clear free speech rights just because a couple of courts got it wrong."

In the spring of 1987, Dr. Carl Westerfield, Bishop's supervisor, purportedly received student complaints about in-class comments that Bishop, a specialist in exercise physiology, had made.

In September of that year, Bishop was first notified of his "violation" in making religious comments in class. Westerfield composed and sent a memo instructing Bishop to discontinue "1) the interjection of religious beliefs and/or preferences during instructional time periods and 2) the optional classes where a 'Christian perspective' of an academic topic is delivered."

In its ruling, the appellate court stated that "the university cannot prevent Dr. Bishop from organizing such a meeting for interested persons, either on or off university grounds." The court did seem to object to calling such meetings "optional class[es]" and conducting them "under the patronage of a university course."

Undisputed Facts

Though there is still disagreement on the affect of the court's ruling, the facts in the Bishop case were undisputed.

As written in the petition requesting a review of the lower court's ruling, the facts stated that Bishop, a specialist in exercise physiology "spontaneously" commented on "his understanding of the creative force behind human physiology" during class time no more than "one or two times per month."

Bishop also responded to student questions about academic research, publishing, tenure, or promotion by suggesting to his students that "his religious beliefs are more important than academic production." Bishop would preface his remarks by saying, "This is my personal bias. . . . You need to recognize as my students that this is my bias."

Also according to the summary of facts in the petition, Bishop "never engaged in prayer, read passages from the Bible, handed out religious tracts, or arranged for guest speakers to lecture on a religious topic during instructional time."

In fact, it was agreed that Bishop's religious references "never exceeded five minutes out of 2,250 minutes of instructional time in a semester." Bishop also conducted an optional after-class meeting for his graduate students on "Evidences of God in Human Physiology."

The students who complained, according to Westerfield's recollection, which is the only evidence of the complaints, did not say they perceived any coercion, but that they "did not appreciate [Bishop's] interjection of Christian concepts . . . in class."

"They had to scratch around to find two students who complained," said Bishop, "and one of those later called me up and said, 'Hey, I'll testify on your side.'"

"Control this activity"

On November 24, 1987, Ken Goodwin of the office of university counsel wrote the university opinion that the administration had authority to restrict Bishop's in-class speech. The memo was subsequently circulated among the other deans at the University.

"The professor may not impose his religious views on his students, under the guise of his freedom of religion," the memo stated. ". . . we may also have a duty to act to control this kind of activity. If the officials in charge are aware that religious comments are occurring and fail to act . . . their failure to act could be considered state action in violation of the establishment clause."

Dr. Robert O'Neil, law professor at the University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression, said, "I don't think the Alabama people really argued for that scope of authority.

"I was a university administrator for 20 years as a vice president and as a president. Few university administrators would want to have that degree of authority or the responsibility that accompanies it.

"If someone asked me [if I wanted that authority] I would say, 'No thanks!'"

Bishop, who now has tenure at the university, brought suit against the University of Alabama contending that it violated the Free Speech Clause of the First Amendment in limiting his speech.

The Federal District Court ruled in Bishop's favor stating that "faculty members are at liberty to divulge personal views in the classroom as long as they are not disruptive of classroom activities."

Dr. Rae Mellichamp, professor of management science at the University, couldn't believe the administration appealed the district court ruling.

"Here's a Christian who makes an incidental remark in class, but because he's a Christian they go all the way to the Supreme Court to shut the guy up," he said.

"I would say it was the most serious setback for academic freedom in the courtroom ever," said McConnell, lead lawyer of the petition for review.

"[The decision] may not promote censorship," McConnell expounded, "but it certainly condones it."

"One philosopher up at Duke," Bishop commented, "said that in New York it might not happen and in Berkeley it might not happen, but here [in the South] it happens because the university [of Alabama] sees itself as the island of reason among a sea of Christian fanaticism."

One of the first statements in defense of the speech restriction made during the depositions by supervisor Westerfield was that Bishop's comments "hurt the reputation" of the university because "other professional colleagues around the nation consider this the 'Bible belt' and [think] that a lot of this type of activity goes on in the university."

Virginia law professor O'Neil, who is also counsel for the American Association of University Professors, stated, "The court of appeals doesn't specifically validate that interest [avoiding the 'Bible belt' image], although there is an implication, which I would reject, that trying to avoid an unfavorable image would represent a valid reason for the administration to step in."

The University of Alabama Faculty Handbook states that "faculty are free to present relevant material in the classroom without prior censorship, but are expected to meet the highest standards of professional integrity."

Sexism and Explicatives

Goodwin, lead counsel for the university in the Bishop case, equated in his memo the "right to limit religious comments" in class with the "obligation" to act if an English professor taught chemistry instead of English, or met "only one hour per week instead of three, or "interspersed his classroom discussions with crude remarks and explicatives."

The appellate court displayed similar feelings when it observed that "just as women students would find no comfort in an openly sexist instructor, an Islamic or Jewish student will not likely savor the Christian bias that Dr. Bishop professes."

Lawyer McConnell took issue with the university and the court in their examples. "As a cultural matter I think that is insulting to Christians everywhere: to equate Christianity with sexism or racism or any other ideology of hatred and discrimination. For the university to display that kind of anti-religious bigotry is alarming in and of itself."

Goodwin, when questioned about his memo of university opinion, said, "We're not out to eliminate Christian groups from campus. We have numerous religious groups . . . very active and no one is concerned about that.

"But it's just the classroom activity that was the problem."

Dr. Gene Carden, a professor of engineering mechanics who has been a university faculty member for 34 years, is of the opinion that the administration was responding to a desire to insure "they don't get injured," and because they're "scared to death of the American Civil Liberties Union.

"It leaves a bad taste in my mouth," he said. "I definitely don't have a sense the individual professor is that important to the overall scheme of things."

Alabama professor Mellichamp has similar concerns about the university's treatment of the situation. "They cave in to pressure," he said. "They're not concerned about what's right and what's good for the university and for students.

"All they're interested in doing is preserving their jobs and their reputations. Who can respect people like that?"

Mellichamp, a 23-year veteran faculty member, personally received a copy of the memo from the office of university counsel through his own chairman in late 1987. He said that was the last word from the university he had heard on the matter and since there has been "no additional official word," as a university employee he has to assume "this is still the policy."

Goodwin, who spoke on behalf of the university, maintains that the university has not changed it's policy, and says there is "no policy, particularly about what faculty members can and cannot say in the classroom."

However, when asked whether the university would be prepared to use the recent ruling to restrict speech of a similar nature, Goodwin responded, "I would say that with the same set of facts, I feel sure the university would act the same way again."

Bishop insists this is not the end of the line.

"If we don't take the initiative, nobody is going to beg us to come up and share our faith. When we fail to start doing something, then there's not even a battle at that point; we've surrendered."