Monday, April 10, 2017

Fighting to Make a Statement: The Struggle for UNCG's Sexual Orientation Nondiscrimination Clause


68 page nondiscrimination petition with 1045 signatures signed
by UNCG faculty, staff, and students
Last week (April, 4 2017), the 7th U.S. Circuit Court of Appeals in Chicago ruled that LGBTQ+ employees are protected from discrimination under the Civil Rights Act of 1964. This is the first time a federal appeals court has ruled in favor (voting 8-3) of applying federal protection from discrimination based on sexual orientation. Previously, the Act only protected individuals from discrimination based on color, national origin, race, religion, or sex (the argument is that sex additionally should cover sexual orientation). This decision, which will likely be debated before the Supreme Court, is a startling reminder that for decades, there has been no legal protection for an employee being fired or a student receiving unfair treatment for being a member of the LGBTQ+ communities. This case was heard in relation to the case of Kimberly Hively v. Ivy Tech Community College. Kimberly Hively, an instructor at Ivy Tech Community College, who happens to be a lesbian, maintains that she was denied full time employment by the college because of her sexual orientation (please note, the April 4th, 2017 court ruling is a separate factual question from the Lively case).[1] The college claims the campus nondiscrimination policy prohibits discrimination based on sexual orientation. This struggle for sexual orientation nondiscrimination versus avoidance of implementing legally-binding policies has been a battle on college and university campuses for many years, including the campus of The University of North Carolina at Greensboro (UNCG).    
   
In a 1992 The Chronicle of Higher Education article about campus climate for faculty, John D’Emilio, a UNCG faculty in the Department of History at the time, stated “I think it safe to say I’m the person on campus who is most openly gay. On a very personal level, it’s fine… But although there is not an overtly hostile climate, there’s not much of a welcoming climate either. Because, if there was, there would be more openly gay faculty members and the University would have certain policies it doesn’t have. There might be courses that don’t exist now. It would be nice to have a faculty and staff group. I don’t think nondiscrimination or benefits policies will be under discussion until a group forms.”[2]

It was not until four years later, in 1996, that the UNCG Faculty Senate would debate the inclusion of a nondiscrimination policy for the campus. Contrary to D’Emilio’s prediction, it was not an LGBTQ+ faculty group that would bring the issue before the faculty and the chancellor (Patricia Sullivan), but three students concerned with the state of equity on the campus. After the unanimous passing of a nondiscrimination clause by the UNCG Student Senate, three lesbian students, Alesha Daughtrey, Jessica Stine, and Mandy Vetter, approached the Faculty Senate in spring of 1996 to approve a similar nondiscrimination statement.[3]  Of the sixteen UNCG campuses, ten already had adopted policies of nondiscrimination against school employees and students by 1996.[4] As UNCG was known to be an LGBTQ+-friendly university, it was thought that the resolution would pass through the Faculty Senate with approval quickly, however, the subject proved to be to be too complex and too volatile to be accepted without conflict.

According to the News and Record, some faculty expressed homophobic apprehensions about what would happen to the University if a policy protected someone based on sexual orientation,

At least one professor who voted against the measure feared the term ‘sexual orientation’ could be interpreted to include people with deviant sexual habits, such as pedophiles. Another professor said it could force the university to set up a quota system for hiring gays and lesbians” and that the policy was “unjustifiable, unworkable, [and] illegal.”[5]

UNCG Faculty Senate Chair, Charles Tisdale, who was reported as one of the few faculty members voting in support of a nondiscrimination policy, responded to such remarks, saying, “Nobody wants to face the moral issue, so they use the legal issue as a smoke screen.”[6]

Certainly, the potential legal ramifications of adopting a nondiscrimination policy based on sexual orientation, as described by the University Counsel of the time Lucien Capone III, were substantial. In a letter to Charles Tisdale, Capone states, “I want to reiterate at the outset that I personally support the notion that we ought not discriminate against anyone simply because of his or her sexual orientation. Rather, my concern is for the unintended consequences that may result if we attempt to formalize the philosophy into legally enforceable policies.”[7] There were two legal arguments brought to attention. One of the consequences Capone foresaw was that if the university created a policy protecting a classification of people not recognized by federal or state statutes, other groups with non-protected status could demand special treatment by UNCG.[8] At the Faculty Senate hearing for a nondiscrimination policy, Capone mentioned that the elevation of a non-protected group, such as one based on sexual orientation, might lead to such groups as “the KKK, skinheads, Nazis” or even smokers petitioning for special protection on campus.[9]  

Additionally, Capone argued that setting a policy protecting people based on sexual orientation may result in the University having to offer domestic partnership benefits. As gay and lesbian marriage was illegal at the time, University Counsel feared having a sexual orientation nondiscrimination policy would force UNCG to offer spousal benefits to “domestic partnerships [which] have no legal status leaving the University in a nether world of practically unanswerable questions.”[10]

When asked about Capone’s legal concerns relating to the implementation of a nondiscrimination policy, UNC System legal counsel, Richard Robinson, felt the arguments were alarmist. In relation to the potential for a gay and lesbian hiring quota, UNC Counsel argued that a nondiscrimination policy is not the same as an affirmative action policy, posing no threat to interfering with faculty recruitment. Robinson maintained that although any given group may ask for special treatment from a faculty senate or chancellor, no college or university could be forced to accept a policy for a non-state or federally protected group. Finally, on the subject of partnership benefits, “That kind of benefit-sharing is based on marital status, and as long as state law limits that kind to spouses then that really takes it off the screen.”[11]

After two failed votes by the UNCG Faculty Senate, James V. Carmichael Jr., Professor in the Library and Information Studies Department and member of the Equal Opportunity – Intergroup Relations Committee, presented the revised proposal for a non-legally binding anti-discrimination statement to UNCG Faculty Senate on November 2, 1996. Carmichael provided remarks in the stead of Novem Mason, Chair of the Committee, as Mason and Carmichael agreed that it was appropriate, “since I [Carmichael] am a gay faculty member… who called this perhaps the most significant even in the history of the university over the past 20 years.”[12] Carmichael, one of the few “out” faculty at UNCG at the time noted in his remarks,

While I am tenured, I know many faculty members who still feel threatened… For these individuals, silence and assimilation represent the better part of wisdom, and perhaps they are right… But stoicism has its perils, too… I urge the Senate to pass this proposed statement not only for the self-interest of a largely invisible minority, but so that this university may go on record as a leader in sensitivity to human rights. Given our history as a women’s institution, we should foster tolerance with adamant conviction.”[13]

Supporting Carmichael’s remarks, Joy Brown, an undergraduate student in the Department of Social Work, provided remarks and presented a sixty-eight page petition with 1045 signatures of UNCG faculty, staff, and students who supported the resolution. Brown was moved to begin this petition process after reading a News and Record article about the debacle, being, “shocked and embarrassed that the university that I take so much pride in would turn its back on guaranteeing the rights of some of its students.”[14]

After two previous attempts, a statement of nondiscrimination was voted in favor of unanimously by the Faculty Senate. It was approved by Chancellor Sullivan by the end of November 1996. Regarding this non-binding statement, Seth Tezyk, head of UNCG’s Gay, Lesbian, and Bisexual Student Association remarked, “I think it was a relief to pass it and say, ‘OK, let’s get our foot in the door.”[15] The nondiscrimination statement stands today, unchanged from its 1996 introduction, though state and federal conditions have changed for the LGBTQ+ communities. The North Carolina state health plan with Blue Cross Blue Shield began offering coverage for same-sex couples and all domestic partners as of 2014, and on June 26, 2015 the US Supreme Court ruled gay marriage was constitutionally protected, affording the potential for additional spousal benefits to the UNCG community. With the 7th U.S. Circuit Court of Appeals ruling, LGBTQ+ Civil Rights Movement has made definitive progress, far beyond the putting “our foot in the door” of 1996.         





[1] Tarm, Michael. “Gay rights organizations hail court ruling as ‘game changer’.” AP News, 5 April, 2017, https://apnews.com/1250634e4f434d2ca02a0f8f1674e624. Accessed 5 April, 2017.
[2] Mooney, Carolyn J. “Gay men and lesbians talk about campus climate.” The Chronicle of Higher Education, 23 Sept. 1992, p. A19.
[3] Carmichael, James V. Remarks by James V. Carmichael (Former Member, Equal Opportunity/Intergroup Relations Committee), November 6, 1996, p.1.
[4] The nondiscrimination policies across the ten institution were difference in format and none were legally binding. Six of the schools had policies/statements implemented by their Faculty Senate and four with a Chancellor’s statement.
Myers, Jane. "Memorandum: Resolution for Revision of UNCG's Non Discriminatory Policies and Practices." Letter to Charles Tisdale. 27 Sept. 1996. MS. The University of North Carolina at Greensboro, Greensboro, North Carolina. (from UNCG Archives Sexual Orientation Subject file)
[5] McMurtrie, Beth. “UNCG balks at sex-orientation policy.” Greensboro News and Record, 6 Oct. 1996, p. B1.
[6] Ibid,
[7] Capone, Lucien III. "Sexual Orientation Discrimination." Letter to Charles Tisdale. 27 Sept. 1996. MS. The University of North Carolina at Greensboro, Greensboro, North Carolina, p. 1 (from UNCG Archives Sexual Orientation Subject File)
[8] Capone, Lucien III. "Sexual Orientation Discrimination." Letter to Charles Tisdale. 27 Sept. 1996. MS. The University of North Carolina at Greensboro, Greensboro, North Carolina, p. 3 (from UNCG Archives Sexual Orientation Subject File)
[9] McMurtrie, Beth. “UNCG balks at sex-orientation policy.” Greensboro News and Record, 6 Oct. 1996, p. B1.
[10] Capone, Lucien III. "Sexual Orientation Discrimination." Letter to Charles Tisdale. 27 Sept. 1996. MS. The University of North Carolina at Greensboro, Greensboro, North Carolina, p. 3 (from UNCG Archives Sexual Orientation Subject File)
[11] McMurtrie, Beth. “UNCG balks at sex-orientation policy.” Greensboro News and Record, 6 Oct. 1996, p. B1.
[12] Carmichael, James V. Remarks by James V. Carmichael (Former Member, Equal Opportunity/Intergroup Relations Committee), November 6, 1996, p.1.
[13] Ibid.
[14] Brown, Joy. “[Remarks], November 6, 1996, p.1
[15] Associated Press. “Not binding in hiring; UNCG senate backs homosexual rights.” Star-News (Wilmington, NC), 8 Nov. 1996, p.6B.

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