Latter-day Saints here at BYU speak reverently and frequently of the divinely inspired Constitution of the United States. Often they cite the hundreds of other nations who have mimicked or looked towards the US constitution for inspiration for their own. Certainly authorities of the Church that owns BYU as well as BYU's leaders have confirmed this stance. It is even embedded in Latter-day Saint scripture in which God says, "I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose" (Doctrine and Covenants 101:80).
If BYU administrators and students feel that the Constitution is inspired by God and is a role model for others to follow, then why does BYU's mission statement, Honor Code, or policy not adapt the same principles embodied by that document?
"I think Americans all look upon the Bill of Rights as part of the inspired work of the Founding Fathers," said former BYU president Dallin H. Oaks, "I have always felt that the United States Constitution’s closest approach to scriptural stature is in the phrasing of our Bill of Rights. . . I also see scriptural stature in the concept and wording of the freedoms of speech and press, the right to be secure against unreasonable searches and seizures, the requirements that there must be probable cause for an arrest and that accused persons must have a speedy and public trial by an impartial jury, and the guarantee that a person will not be deprived of life, liberty, or property without due process of law. President Ezra Taft Benson has said, 'Reason, necessity, tradition, and religious conviction all lead me to accept the divine origin of these rights.'" These concepts, which Elder Oaks says approach scriptural stature, are absent from BYU policy.
1. The Freedoms of Religion, Speech, and Press
The Bill of Rights states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Compare that to BYU policy, which states:
- "[M]embers of The Church of Jesus Christ of Latter-day Saints [must], have done their duty in the Church, attended meetings, and abided by the rules and standards of the Church." (Relationship Between Campus Officials and Ecclesiastical Officers)
- "The Brigham Young University Board of Trustees policy mandates that a student is ineligible to attend BYU upon . . . disaffiliation from The Church of Jesus Christ of Latter-day Saints." (Relationship Between Campus Officials and Ecclesiastical Officers)
- Speech or writing is forbidden if it "contradicts or opposes, rather than analyzes or discusses, fundamental Church doctrine or policy; deliberately attacks or derides the Church or its general leaders" (BYU's Academic Freedom Policy)
- "BYU faculty, staff, and students should avoid swearing in speech and writing; coarse expressions derived from profanity; displaying of pictures, posters, and other forms of expressions which are crude or suggestive; and expressions that depend upon allusions to crudity for effect." (Honor Code)
- "advocacy of homosexual behavior [is] inappropriate and violate[s] the Honor Code. . . Advocacy includes . . . promoting homosexual relations as being morally acceptable." (Honor Code) In other words, you can't write or say anything that promotes gay marriage or the legitimizing of gay relationships. This forbids students from protesting BYU's treatment of homosexuals.
2. Security Against Unreasonable Search/Seizure & Probable Cause
The Bill of Rights states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. . . "
Compare that to BYU policy:
- "Generally, the university will follow the procedural guidelines as outlined in this document. However, the procedures set forth in this document are merely guidelines and are not intended to create any contractual obligations or expectations. The university reserves the right, at its discretion, to vary from these procedures according to the circumstances of individual matters" (Honor Code Investigation and Administrative Review Process)
- "The university, at its discretion, may choose to investigate reported or suspected Honor Code violations. . . Anyone may refer a student to the Honor Code Office for reported violation(s) of the Honor Code, whether the alleged conduct occurred on or off campus. . . the HCO reserves the right, in its discretion, to proceed with an investigation based on a anonymous report." (Honor Code Investigation and Administrative Review Process)
- "When there are significant discrepancies or contradictions between the supporting information and the student's response, the HCO will attempt to ascertain the truth and exercise reasonable discretion, including further investigation if practicable. No attempt will be made to apply technical rules of evidence. In general, any information, whether oral or documentary, which is considered to be relevant will be received and reviewed, subject to the reasonable discretion of the HCO." (Honor Code Investigation and Administrative Review Process)
3. The Right to a Fair and Speedy Trial & Due Process
The Bill of Rights states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
Compare this to BYU Policy:
- "the Honor Code Office and the university will reasonably strive to keep the names of witnesses confidential" (Honor Code Investigation and Administrative Review Process). In other words, the accused does not have the right to face his accuser or even know who has accused him.
- "Because the Review process is intended to be educational and not adversarial, attorneys are not allowed to attend or represent . . . the affected student" (Honor Code Investigation and Administrative Review Process). In other words, there is no right to the "Assistance of Counsel for his defense."
- "After a violation report is received, the HCO will (i) analyze the violation report and relevant evidence, (ii) conduct an investigation and interview the student and any witnesses or other persons having information about the student and/or the allegations as the HCO deems appropriate, (iii) notify the student in writing of the alleged violation(s) of the Honor Code if it appears that an Honor Code violation has occurred,(iv) encourage the student to respond, preferably in writing, to the allegations and relevant evidence, (v) assess the credibility of the witnesses and strength of the evidence, and (vi) prepare a decision and recommended course of action." (Honor Code Investigation and Administrative Review Process). This process is not public, and the accused is not provided with any sort of "assistance of counsel" during his or her investigation.
For the record, this is not a criticism of the Honor Code or the Church. I am simply analyzing what could be viewed as an inconstancy for the purpose of frank and open discussion.