Gene Nichol No Longer President at William and Mary

Thanks to a pointer from Mary Dudziak over at legalhistoryblog, I see that Gene Nichol's contract as president of William and Mary was not renewed.  It will be most interesting to see what happens now.  Close readers of the legal blogsphere will recall that I've been interested in the faculty at William and Mary in the years leading into Civil War, particularly W&M's president Thomas R. Dew.  I and some of the faculty and students at W&M had been hoping that the Board of Visitors might do more to investigate the school's history--akin to Brown University's Steering Committee on Slavery and Justice.  Obviously, that's going to have to wait.

The College's loss is the William and Mary Law School's gain, because Nichol is moving to the law school faculty.  (You may recall he was dean of the UNC law school before becoming president at W&M and before that dean of the University of Colorado law school--and some years before that he played football for Oklahoma State.  Go Cowboys! Pretty interesting career path, no?)

You'll want to read Nichol's statement here, which discusses recent controversies there, including the removal of  a cross from the school's chapel.  The student newspaper at W&M has more here.

Alfred L. Brophy

Comments

[John C]

An unfortunate loss for the College. President Nichol was a breath of fresh air for an institution that is often staid, insulated, and largely goverened by a tightly-knit culture of elite alumni. Nichol did what he thought was right, and got dismissed for it.

[Kathleen Bergin]

President Nichol’s resignation has been discussed largely in terms of whether he instituted sound administrative policies during his short tenure, glossing over, for the most part, the possible constitutional considerations involved. Take the controversy surrounding the Wren cross. Nichol’s removed the cross from permanent display in a chapel building used by some groups for secular meetings and by others as a place of worship. Any group who used the Wren building could nonetheless request that the cross be put on display for a particular event. The cross even remained on display every Sunday, for the entire day, including when worship services were not in session.

Both the display of an altar cross at a public university, as well as its limited removal, might implicate the Establishment Clause which the Supreme Court has interpreted to prohibit the government from either favoring or disfavoring religion. We can pretty easily put to rest any argument that removing a permanent cross display meant to disparage Christians whom, like any other group on campus, could request the cross when using the Wren building for either meetings or for mass. This accommodating “display on demand” policy arguably served the larger interests of an increasingly diverse university by allowing students of all faiths (or none) to enjoy perhaps the most historically significant building on campus. I’ve not seen any report that University officials declined to display the cross upon a request made by any group authorized to use the building. On the other hand, the permanent installation purportedly alienated many - prospective applicants, an a capella group, members of the honor society, and others - who had business at the facility. And there is some evidence that Nichol’s policy had its intended effect. At least one student organization that never would have considered meeting at the Wren building considered it a “viable option” after the cross was placed on permissive, as opposed to permanent, display.

What about the flip side? Did the permanent installation of an altar cross at a public university convey religious favoritism? That is, did President Nichol spare William & Mary a lawsuit by making the cross available upon request? Its certainly a closer call, but he may have done just that.

First, if a state can’t display a nativity scene in the grand stairway of a courthouse, can it display a cross, in a chapel, at a public school? After all, it’s a cross. In a chapel. At a public school. We’re not talking Christmas trees on the town square that arguably convey a mix of secular and sectarian sentiment.

Second, context matters, and is one way to mitigate the risk of religious endorsement of even inherently religious objects. And so, situating a six foot tall monolith of the 10 Commandments on the grounds of a state capitol might be problematic, but not when it is surrounded by more than a dozen secular monuments and sign-posts honoring the “people, ideas and events” that mark the state’s identity. And none need worry that Moses would anytime soon be chiseled out of the frieze that hangs over the Justice’s bench, lest the display create an improper religious endorsement. He too sits among other lawmakers - religious and otherwise - who have influenced the course of history. The Wren cross, at least on permanent display, is different. No context. No history. No explanation.

Third, some could argue that the centuries old Wren building reflects the historical identity and development of the University that was established in 1693 as part of the Church of England. But the building purports to replicate an 18th century chapel which, according to one historian, would not have included a cross. Even the Wren building itself did not come with an altar cross. The cross was donated to W&M by a local church in 1931 after the University became a public institution. For constitutional purposes, the building and the cross are not of a piece. The University’s most recent decision to encase the cross in glass alongside a plaque that does explain its origins and history is precisely the type of context that would favor the University in an Establishment Clause challenge.

But its not an easy case. Establishment Clause controversies are tricky, and the Court’s recent decisions in Van Orden and McCreary County did nothing but muddy the water. But even if W&M could display a permanent cross without violating the First Amendment, I’m reminded of wise mentoring advice I received long ago: just because you can do something, doesn’t mean you should. Whether Nichol’s made the right call here as a matter of University policy, I’ll let the institutional experts explain.

-Kathleen A. Bergin