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?

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.

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?

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.

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?

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.