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Music Vacancy List
Human Rights or Freedom of Speech?
As innocent and as passive as the Music
Vacancy List (MVL) might appear to the membership, the
MVL has over the past few years stimulated some interesting, and at
times heated, debate concerning its proper role as an agency for the
dissemination of information about employment opportunities in our profession.
In producing the service, The College Music Society has long been motivated by
the simple desire to provide information to its members about employment
opportunities in higher education. The Society gathers the information,
reproduces it in a convenient format, and places it in the hands of the members
in a timely way. All is clear and convenient. What could be simpler?
The law of the land -- and all of its
underlying and endless arguments, precedents, and real or imagined
ramifications -- applies to The College Music Society and its MVL as
surely as it does to any publishing entity in operation in the United States,
and through the MVL, the members of The College Music Society have
before them some major legal and cultural policy issues that merit their
attention.
In attempting to bring employment
information to its membership, CMS has provided space to its advertisers and
allowed them to describe their institutions and their employment opportunities.
For the first sixteen years of the MLV (1974-1990), to our knowledge
no objections were made by members when an institution described itself or its
employment policies or opportunities, even if they were deemed restrictive or
discriminatory by a segment of the membership. For example, when an
historically Christian college in the United States listed an employment
opportunity in the MVL by (1) stating its institutional mission, (2)
describing its employment opportunity, and (3) stating that a commitment to the
Christian faith was required for employment, CMS accepted the advertisement and
included it in the publication. In 1990, a member of CMS objected to the policy
of accepting advertising from employers that openly practice discrimination.
The objection has precipitated a great deal of research by CMS legal counsel
and discussion by its Board of Directors. Allow us to identify and discuss the
issues brought forth in 1990 and that have continued to be reviewed since. In
the examples below, we do not mean to single out Christians; the Christian
college issue is, however, the test case and so we use that here to further
discussion.
Issue One -- Is it Unlawful for The
College Music Society to Include That a Statement of Christian Faith Is
Required for Job Applicants in a Listing Included in the Music Vacancy
List?
DISCUSSION
The above question arose in the context of
an objection to a listing that was included in the March, 1990, Music
Vacancy List, Volume 17, Number 7, page 4. The text of the listing is as
follows:
- WHEATON COLLEGE-Tenure-tr,
Organ & church mus, cognate prep in mus hist and/or basic mus'ship. Teach
studio, serve as chapel organist, coord chapel mus. Other teach from
comp/improv or eurhythmics pref'd, or theory, analysis/cterpt. Doct or near or
equiv, teach exp, exp in church mus ministries req. Until filled to: Chair,
Organ Search Comm, Wheaton Conserv of Mus, WC, Wheaton, IL 60187. Include app
let, cv, rec lets, supp mats, recent tapes. Statement of Christian faith req.
EOE.
A member wrote several letters to The
College Music Society objecting to the inclusion of the requirement of a
statement of Christian faith. This person questioned whether The College Music
Society should accept listings that state what were thought to be
discriminatory conditions for employment. The College Music Society was asked
if it would accept listings that stipulated no Jews, no Buddhists, no
Christians, no Blacks, no Latinos, no Asians, no Irish, or no Whites with blue
eyes.
The federal law concerning the issue is
contained in several sections of the United States Code. The first relevant
section is 42 USC §2000(e)(2). This section of the code indicates that it
shall be an unlawful employment practice for an employer to refuse to hire any
individual because of the individual's race, color, religion, sex, or national
origin. This section of the United States Code further states that it shall be
an unlawful employment practice for an employment agency to fail or refuse to
refer for employment any individual because of his race, color, religion, sex,
or national origin or to classify or refer for employment any individual on the
basis of his race, color, religion, sex, or national origin. For the purposes
of the statute, "employment agency" is designated to mean any person regularly
undertaking with or without compensation (a) to procure employees for an
employer or (b) to procure for employees opportunities to work for an employer.
The term "person" includes a corporation, as clarified in section 42 USC
§2000e(a) and (c) . Finally, section 42 USC §2000e-1 states that the
statutes that deal with equal employment opportunities do not apply to
an employer that is a religious corporation, association, educational
institution, or society with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on of its
activities by such an entity.
The federal statutes cited above make it
unlawful for an employer to refuse to hire someone based on religion. The
statutes further indicate that an employment agency may not provide referrals
for employment based on the religious preferences of individuals. The College
Music Society might be considered an "employment agency" based on a broad
reading of the definition of "employment agency." It might be held that CMS
procures for employees opportunities to work for employers. However, the
prohibition against religious discrimination does not apply to employers that
are religious corporations, associations, educational institutions, or
societies with respect to employment of individuals of a particular religion to
perform work connected with carrying on the activities of the
entity.
In the situation presented in this case, it
would not be improper under federal law to list the statement of
Christian faith requirement in the Wheaton College listing if Wheaton College
is a religious corporation, association, educational institution, or society
and the individual to be employed by Wheaton College will perform work
connected with the carrying on by Wheaton College of its activities. The
information available indicates Wheaton College is a religious educational
institution and the employee advertised for in the MVL would be
involved in carrying on the activities of the institution. Therefore, in
listing the position, the MVL did not violate federal law.
In addition to federal law, state and local
laws apply in the various jurisdictions where the MVL is distributed.
States and even local governments, such as cities, might have employment
discrimination laws that differ from federal law. For example, research
indicates that the City of Pittsburgh, Pennsylvania, as of 1969, had a broad
anti-discrimination city ordinance. The ordinance was at issue in a case
decided by the United States Supreme Court. The case is titled Pittsburgh
Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93
S.Ct. 2533, 37 L.Ed.2d 669 (1973).
The ordinance discussed in the Pittsburgh
Press case indicated that it was an unlawful employment practice for any
employer or employment agency to publish or circulate or cause to be published
or circulated any notice or advertisement relating to employment which
indicates any discrimination because of race, color, religion, ancestry,
national origin, place of birth, or sex. The ordinance further made it unlawful
for any person, whether an employer or employment agency, to aid in the doing
of an act declared to be an unlawful employment practice by the ordinance. The
National Organization for Women (NOW) filed a complaint with the Pittsburgh
Commission on Human Relations. The complaint alleged that the Pittsburgh Press
Company was violating the ordinance by allowing employers to place
advertisements in male or female columns when the jobs advertised did not have
bona fide occupational qualifications. The column captions listed male
help wanted and female help wanted, and in many cases consisted of a job title,
salary, and employment agency carrying the listing. The Pittsburgh Commission
on Human Relations found that the Pittsburgh ordinance prohibited employers or
employment agencies from submitting advertisements for placement based on
sex-designated columns. The Commission found the Pittsburgh Press in violation
of the ordinance; the Press had aided the advertisers by maintaining a
gender-designated classification system. The Commission ordered the Pittsburgh
Press to cease and desist such violations and to utilize a classification
system with no reference to gender.
The Pittsburgh Press appealed the ruling.
The Press argued that the ordinance as construed violated the freedoms of
speech and press guaranteed by the First and Fourteenth Amendments to the
United States Constitution.
In deciding the case, the Supreme Court
recognized that it was a sensitive one which involved the balancing of the
guarantees of the First and Fourteenth Amendments against the legitimate state
interest of preventing discriminatory employment practices. After extensive
analysis, the court determined that the ordinance was
constitutional.
If the analysis regarding sex
discrimination practices in the Pittsburgh Press case was applied to the
religious discrimination section of the ordinance, it probably would be
unlawful for The College Music Society to include the requirement of a
statement of Christian faith in its MVL and distribute the
MVL in Pittsburgh, Pennsylvania. There is some question whether the
Supreme Court would apply the same rationale in a religious discrimination case
for a religious educational institution because the additional constitutional
guarantees of freedom of religion would be added to the arguments of freedom of
speech and the press in deciding the case. Some of the writings concerning the
rationale for adoption of the exclusion for religious institutions in the
federal statute indicate the exclusion was added to guard against that problem.
However, no cases could be found where a state or local ordinance like the
Pittsburgh antidiscrimination ordinance was held to be unconstitutional because
the law prohibited religious institutions from requiring employees to adhere to
a specified religious belief. Under these circumstances, it can be concluded
that the statement regarding Wheaton College probably did violate a state or
local law in effect somewhere but that The College Music Society would have a
defense that the law violated was unconstitutional.
There was some significant federal
legislation passed in 1993 that would have buttressed the argument that any
such state and local statutes where unconstitutional violations of the First
Amendment. The Religious Freedom Restoration Act of 1993 set up a high standard
for laws to pass constitutional muster in this area (see 42 U.S.C.
§2000bb). However, the Supreme Court has recently found that statute to be
unconstitutional in the case of City of Boerne v. P.F. Flores,
__________ U.S. __________, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). There are
still no cases to be found were a state or local ordinance like the Pittsburgh
antidiscrimination ordinance was held to be unconstitutional because the law
prohibited religious institutions from requiring employees to adhere to
specific religious beliefs. It can still therefore be concluded that statements
of religious belief probably do violate state or local laws in effect somewhere
subject to a defense that the law violated is unconstitutional.
CONCLUSION
It was not unlawful under federal law for
The College Music Society to include that a statement of Christian faith is
required for job applicants in a listing included in the Music Vacancy
List published in March, 1990. It might have been a violation of a state
or local ordinance to include the listing but any such ordinance would be
subject to attack as unconstitutional.
Issue Two -- In Future Issues of
the Music Vacancy List, Should The College Music Society Accept
Advertising from Institutions That Have Discriminatory Hiring
Practices?
DISCUSSION
The law set out above is applicable to this
issue. At least two problems would arise from publication of listings that
include religious qualifications. The first problem arises under federal law.
The College Music Society would have to be able to attest that (1) such
information was only included for institutions or entities that are religious
corporations, associations, educational institutions, or societies and (2) the
work performed would be connected with the carrying on by the institution of
its activities. In other words, the Society would have to receive assurances
that the position listed fell within the exception to the religious
discrimination prohibition of the federal law before the information could be
included in the MVL. Such research and assurance by the Society might
would be time consuming and difficult. Further research underscores this.
Recently, the issue as to whether Loyola University of Chicago was a religious
institution was litigated. The court looking at the issue determined that while
Loyola had significant Jesuit ties, it was not sufficiently connected with the
Jesuit order to be considered a religious institution that qualified for the
exception to the religious discrimination prohibition. That result is a further
indication that it might prove time consuming and difficult to determine if the
exception applied to a particular institution. The Society is simply not in a
position to serve as adjudicator of the religious qualifications of over 1800
colleges, conservatories, and universities in the United States.
The second problem with continued inclusion
of the religious requirement information relates to potential violations of
state or local laws. As discussed above, it is possible that the inclusion of
the information would be a violation of the ordinances that existed in the City
of Pittsburgh in 1969. Review of Montana statutes, under which The College
Music Society is organized, indicates it might also be a violation of Montana
anti-discrimination statutes to include the information. The determination
under Montana law would turn on (a) whether the Society would be determined to
be an "employment agency" and (b) whether the Montana law was constitutional.
The argument concerning constitutionality would apply to all state or local
regulations or laws. It would be virtually impossible to stay abreast of all
the changing state and local laws to determine if the continued inclusion of
the information in the publication violated the laws. The situation might
change daily. It is simply impossible to monitor the situation effectively. CMS
would therefore have to rely on an argument that such laws would be
unconstitutional. The argument is possible but, as set out above, research does
not indicate that the argument has been successfully made as yet. Although some
legal advisors are of the opinion that such state or local laws are
unconstitutional, making the argument would be difficult. The Society would
have to go to the location of the alleged violation and litigate the matter.
There is no guarantee of success, only of great expenditures of time and
resources.
CONCLUSIONS
The College Music Society should include
that a statement of Christian faith is required for job applicants in listings
included in future issues of the Music Vacancy List only if (a) the
Society is willing to expend time and resources necessary to determine that the
institutions or entities involved are religious corporations, associations,
educational institutions, or societies; (b) the work performed by the
prospective employee would be connected with the carrying on by the
institutions of their activities; and (c) the Society is willing to assert and
defend the constitutional argument that any state or local law prohibiting the
Society from publishing the information is unconstitutional.
Issue Three -- But The Chronicle
Does It!
In its employment listings The
Chronicle of Higher Education prints advertising as received from
institutions. A review of employment listings in any issue of The
Chronicle indicates a wide variety of institutions offering an even wider
variety of employment offerings. One assumes that, surely, The Chronicle of
Higher Education has addressed these issues and has set precedents that
all smaller organizations can follow. Alas, such is not the case.
A representative of The Chronicle of
Higher Education was contacted and these issues were discussed. It does
not appear that The Chronicle has looked at the issue as thoroughly as
The College Music Society. The Chronicle has stopped its analysis with
a review of the federal statutes. When asked if there was concern about
violation of state or local laws, it was indicated that The Chronicle
felt federal laws would supersede any state or local ordinances on the issues.
The Chronicle indicated that authority for that position had not been
established and could not be provided.
Federal law does not always supersede state
or local law. State or local law can be more restrictive than federal law. For
example, a state may have more stringent meat inspection requirements than the
federal government so long as the meat inspection requirements are not
unconstitutional in some form. Similarly, any state or locality may have more
stringent antidiscrimination laws that do not include all the exemptions that
the federal law includes, so long as those more stringent antidiscrimination
laws are not unconstitutional. The prospect of the unconstitutionality of the
antidiscrimination laws that do not include exceptions for religious
institutions is discussed above.
Issue Four -- Where Does CMS Go
from Here?
DISCUSSION
The College Music Society is caught between
two highly charged issues: freedom of speech and human rights. On one hand, the
institutions served by CMS would like to convey who they historically and/or
presently are and the qualifications they seek in an employee -- this certainly
speaks to issues of freedom of speech. On the other, CMS does not want the
organization or its MVL to serve as an agency, or instrumentality, of
discrimination -- this certainly speaks to issues of human rights.
Lost in all this complicated legal
wrangling is the concern for service to the membership of The College Music
Society, which is what CMS intended the Music Vacancy List to be about
in the first place. Which provides the best service to the CMS membership and
the music profession: (a) clear information about an institution's
proclivities, however discriminatory, or (b) restrictive covenants that insure
that no advertising will be accepted from institutions that have discriminatory
practices?
Caught between these two arguments, you may
be wondering how the Society handled this issue over the past few years. In
fact, the Society has done two things. First, CMS has published a disclaimer in
the MVL concerning the listings contained therein; the disclaimer
clarifies the position of the Society as an agency of information
dissemination. Second, CMS has not published discriminatory language in
advertisements while, at the same time, it has encouraged institutions to
describe themselves in detail; this has allowed its members to draw conclusions
concerning whether such an institution would be an appropriate employer. CMS
has not necessarily adopted this policy because it believes it is best for the
institutions or its members. Rather, it has done so in order to walk the fine
line between the very unresolved issues discussed above. For the moment, given
the information at hand, the Board of Directors stands by this
policy.
Statement of Policy concerning
Advertisements in the Music Vacancy List
Although The College Music Society welcomes
advertising from all institutions of higher learning in the United States, CMS
will not include an advertisement in the Music Vacancy List that
contains, in the discretion of CMS, a statement of discrimination based on
race, color, national origin, gender, sexual orientation, or religion, even
if such a statement reflects an institution's stated employment hiring
practices. Statements of discrimination based on race, color, national origin,
and gender are prohibited by federal and many state and local laws. Although
statements of discrimination concerning religion may not violate federal laws,
they may violate state and local laws in certain localities in which the
Music Vacancy List is distributed. Therefore, The College Music
Society will not include such statements in advertisements contained in the
Music Vacancy List.
To assist potential applicants in
determining whether an institution may be right for them, religious
institutions are welcome to (1) state the nature of their historical
affiliations as clearly as possible and (2) encourage applicants to request a
full list of requirements before applying.
Advertising practices and restrictions are
a continually evolving area of federal, state, and local law. The College Music
Society welcomes dialogue concerning this issue from its members, as well as
from the institutions and faculty that comprise the American higher education
community.
Conclusion
There are many, many possibilities as to
how CMS might proceed in the future. At the heart of the issue is how much
time, energy, money, and other resources the members of the Society are willing
to expend in bringing this issue to the forefront of the American legal system.
Clearly, many aspects remain unresolved and will only be when the Supreme Court
brings its wisdom to a precedent-setting case. Should CMS be the determining
situation?
Meantime, back to the membership. It is
time for CMS members to ponder these issues and let their thoughts and ideas be
known. What kind of organization and what kind of MVL would you like
to have? Should the MVL clearly state the requirements of
institutions, whatever they may be? One that accepts no advertising from any
institution with any discriminatory practices? If you wish to express an
opinion on this issue, please do write to The College Music Society at the
address below.
As we weigh this issue very soberly, we
would be well advised to be very careful what we wish for. It just might come
true.
This review was
prepared by Douglass Seaton, President of The College Music Society (1997-98),
Robby D. Gunstream, Executive Director of the Society, and the Society's legal
counsel, Daniel G. Cederberg.
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