As over a dozen news outlets have reported this week, BYU made some adjustments to its Honor Code less than three weeks after the American Bar Association (ABA) acknowledged receipt of our religious discrimination complaint against the university last fall. You can also read about this in our press release and detailed analysis of the changes.
To most who have read and commented on the articles that have been released on these changes, it has seemed fairly self-evident that 1) the changes are relatively significant and 2) they were likely prompted by the ABA’s inquiry into our complaint. In its statements to journalists, however, the university has attempted to paint a different picture in both respects. In other words, it has downplayed both the significance of the changes and the instigating factors behind them. In so doing, it has downplayed the influence of our complaint to the ABA, perhaps in order to avoid any suspicions that it might not be impervious to external pressures.
To help avoid any further confusion – and clear up some of the confusion this has already caused – let’s take a look at the statements and methods BYU has used to do this and evaluate their validity in light of the facts available.
Significance of the Changes
While we at FreeBYU have acknowledged that the recent changes to the Honor Code aren’t earth-shattering and that we wish they went much further, we do think they’re meaningful, and I happen to think there’s more to them than BYU has led on.
First off, BYU’s spokesperson, Carri Jenkins, has been quick to 1) characterize the changes as insignificant, barely worth noticing, and 2) emphasize what hasn’t changed over what has changed. For example, she has been quoted and/or paraphrased as calling the changes “minor adjustments”, “minor adjustments [to an] already existing process”, and “nominal updates to a longstanding process.” According to the Daily Herald, she “said the university made some adjustments to the code, but did not elaborate. Jenkins said students previously had the right to petition the university.”
Next, notice that Jenkins has apparently only acknowledged one of the three most significant changes. Likewise, only this one change has been reported by three BYU-affiliated outlets – Deseret News, KSL, and The Daily Universe (Update: The DU has done it again) – even though every other outlet has found at least one of the other two worth reporting. The message seems to be that this change is the only one of importance, and Jenkins has practically stated as much outright: “Jenkins tells the ABA Journal that the primary change to its policy is the wording that allows a student to choose whether or not to sign the release” (which allows university officials to speak with the student’s church leaders when they apply for an exception to BYU’s ecclesiastical endorsement requirement).
The other two changes 1) remove the requirement for undefined “extenuating” or “unusual circumstances” and 2) add some guidance on what constitutes “sufficiently compelling grounds to warrant an exception” where there was previously none. These enhancements both serve to remedy tremendous ambiguity that formerly made it impossible for a student to know what was required to receive an exception. They give students more of a target to aim for and should reduce the university’s ability to make up the rules as it goes. But to acknowledge these as important changes would be to admit that gaping deficiencies existed in the previous Honor Code. I imagine it’s therefore better for the university’s image to minimize and ignore these changes and instead focus on the change that simply swapped one detailed policy for another.
In another instance of downplaying the changes’ significance, KSL and Deseret News reported, “Exemptions are rare, Jenkins said.” It’s unclear whether this means that exceptions have been rare up to this point or that they will be rare going forward. If it’s the former, it’s irrelevant since so few people have known about the Application for Exception process or what was required for their application to be accepted. If it’s the latter, it’s entirely inappropriate since the university has committed itself in writing to grant exceptions to all applicants who can show that they “observe the standards of the Honor Code”, and it has no way of knowing in advance what portion of applicants will be able to do so. If they’re all able to, they must all be granted exceptions. If BYU wants to ensure that “exemptions are rare”, it should have either retained the language requiring “extenuating” or “unusual circumstances” or replaced it with something comparable (of course, it shouldn’t have actually done that). In essence, Jenkins’ statement is trying to spontaneously reinsert requirements that have been carefully removed through an “approval process [that] takes longer than a few weeks”.
Finally, as reported by KUTV and The Salt Lake Tribune, Jenkins has said, “What we are saying is that students can submit a petition that will be handled on a case-by-case basis”. This makes it sound as though the school still enjoys full unfettered discretion in how it makes these rulings, and this is indeed what many have taken from it. It no longer does, however, since it is now bound to rule based on whether students have shown that they keep the Honor Code. Now technically, the case-by-case characterization actually is fitting and we need not be alarmed by it. After all, every court of law decides things case by case, and that doesn’t mean there are no standards guiding their judgments. At least we now know what exactly will be determined case by case – whether or not the student “observe[s] the standards of the Honor Code”. This is undoubtedly an improvement over the former check for amorphous “sufficiently compelling grounds”. Note that we at FreeBYU will do what we can to hold the university accountable for honoring this new clarifying language. If it expects students to keep their commitments, it needs to lead by example and not overstep the new bounds it has committed to respect.
Impetus for the Changes
In our communications, we have offered three reasons to suspect that the changes to the Honor Code were prompted, at least in part, by our complaint to the ABA:
- The close timing of the events suggests a causal link and would be an impressive coincidence if there were none. Moreover, since the Honor Code is published annually in BYU’s catalog and since students are required to agree to it before starting class each year, quietly changing it mid-year (and mid-semester) would be a strange action were it not expedient due to unforeseen circumstances.
- Each of the four main changes addresses an issue raised in our complaint, a fact documented in our analysis. Without a causal link, this would also be coincidental.
- The changes were only made to the Honor Code of the LDS school that falls under the ABA’s purview. The Honor Codes of BYU-Idaho, BYU-Hawaii, and LDS Business College, which do not have a law school for the ABA to accredit, have not received the changes.
However, in consuming the various articles and TV news segments that have reported these changes, one might get mixed impressions on whether or not the complaint spurred them. A number of outlets attempted to paraphrase statements addressing the question from Jenkins. These paraphrases and one other statement, which don’t all agree with each other, are all recounted below:
- “The ABA acknowledged receipt of FreeBYU’s complaint on Oct. 21. It requested a response from BYU about a week later. BYU published the adjustments to the honor code on a website on Nov. 9.” (KSL, Deseret News) (Note: This one does not paraphrase a statement from Jenkins)
- “Administrators had discussed and approved the tweaks before the bar group asked BYU to respond to the complaint, Jenkins said, adding that the school’s approval process takes longer than a few weeks.” (The Salt Lake Tribune)
- “Jenkins says the minor adjustments to the honor code were made before the school heard from the ABA.” (ABA Journal)
- “University spokeswoman Carri Jenkins wrote in an email that… the changes came before the school heard from the ABA.” (The Salt Lake Tribune)
- “A university spokeswoman for the Provo, Utah, school told the Salt Lake Tribune in an email that the changes were underway before the ABA responded to the complaint.” (Law.com)
- “Jenkins said the FreeBYU complaint had no bearing on the school’s decisions.” (KSL, Deseret News)
- “University Communications spokeswoman Carri Jenkins said the adjustments had no relation to the recent complaint…” (The Daily Universe)
- “Jenkins said these changes were not a result of the ABA’s inquiry into FreeBYU’s complaint.” (The Daily Universe)
Paraphrases 1 and 2 are the most informative and they both indicate (one directly, the other indirectly) that the ABA asked BYU to respond to our complaint before the Honor Code changes were implemented. Furthermore, we can be confident that the university had access to the complaint since we posted it on Scribd and linked to it on our blog and Facebook page on Oct. 25. These facts refute or at least render moot the impression given by Paraphrases 3 and 4 (and possibly 5, which is ambiguous) that the ABA’s request came after the changes.
Paraphrases 6, 7, and 8 are where the claim becomes extraordinary: our “complaint had no bearing on the school’s decisions” whatsoever. Notice that the only three outlets making this claim are owned by BYU and/or its sponsoring institution. Also note that KSL’s and Deseret News’ articles are the exact same article from the same author, so they can’t be said to corroborate one another. Now if these paraphrases were true to what Jenkins actually told them, we would expect her to have made such newsworthy revelations to each of the other outlets she spoke with, and we would expect them to have then reported it rather than the tamer versions of the claim that they did report. It also seems reasonable to expect the three outlets to have provided a direct quote, if one existed, to support such an assertion, which they did not. As it stands, it appears likely that these paraphrases are generous extrapolations of Jenkins’ carefully selected words, which we’ll look at shortly (any card-carrying cynic would view this as a clever shell game of plausible deniability).
Now what if BYU itself came out tomorrow and plainly declared that the complaint had zero effect on the changes? In that case, the question would become, “Which complaint?” There are actually two complaints that we submitted during this process, the first of which we submitted directly to BYU’s law school in late May 2015 in accordance with ABA requirements. And just as our October complaint raised issues that were addressed by each of the four main changes to the Honor Code, our May complaint discussed each of those very same issues, as you can easily verify by searching the document. Furthermore, BYU was certainly aware that we would soon submit the complaint to the ABA since KUTV reported on Jun 1 that “Free BYU is awaiting a response from the school within 30 days and plans to file it with the American Bar Association if nothing changes”. We were not shy about our intentions, and we had already sent a formal complaint to BYU’s regional accreditor, the NWCCU, in March.
Before continuing, let’s consider the directly quoted statements from Ms. Jenkins that address the question of what prompted the changes. All such statements from the articles are collected below:
- “The university is constantly thinking through questions and making adjustments when warranted.” (ABA Journal)
- “We made this adjustment because we thought it was fair.” (The Salt Lake Tribune)
- “The adjustments were approved and finalized before we received the ABA’s letter asking for a response to the complaint… The university is constantly thinking through questions and making adjustments when warranted.” (The Daily Universe)
- “Discussions leading up to these adjustments began long before we received the ABA’s letter asking for a response to the complaint… Given the approval process at the university, it simply would not have been possible to make these adjustments in the time Free BYU is stating. Adjustments to university policies are constantly being discussed and considered.” (KSL, Deseret News)
Statements 1 and 2 have little bearing on the question since they are consistent with either position. Statement 3 is essentially contained within Statement 4, so let’s focus on that one. Statement 4, which is similar to Paraphrase 2, first says that they couldn’t have put the changes through their approval process in two weeks. Now I’m sure it’s true that their process normally does take longer than that, but would it really be impossible for them to call some emergency meetings and fast track a few changes if the need arose? I doubt it, but for the sake of argument, let’s assume that it would be and that the changes, as currently written, really were already in the approval pipeline – what would that prove? Only that the changes had instead likely been spurred by our complaint to BYU’s law school, which raised all of the same relevant issues five months prior. So for Jenkins to intimate that it rather proves that the changes weren’t at all affected by our complaint is disingenuous.
In order for such a claim to be meaningful, I believe BYU would need to explicitly state that the Honor Code changes were not influenced at all by our complaint to the ABA, our complaint to the law school, or any of the other initiatives that we’ve undertaken, and that all apparent connections are purely coincidental. Such a statement would of course seem quite dubious to many, myself included, but at least then, their story would have been told. As it stands, we’re left wondering what their story actually is.
Now, you might be wondering, “If BYU had over five months to make these changes, why did they only finalize them two weeks after being contacted by the ABA?” We can only speculate, but it seems plausible that BYU sat on the approved changes until hearing from the ABA in hopes of being able to then get some insight from them on which parts of our complaint they were concerned with. Whether they were able to obtain such insight or not, they would have then proceeded to make as few of the approved changes as they felt they could get away with.
At the end of the day, what matters most is that positive changes have been made and can continue to be made to BYU’s Honor Code. But if such changes are indeed to occur in the future, attempting to understand what has likely prompted them in the past is a worthwhile endeavor. And if past changes are to be used to the benefit of the students they affect, the extent of their implications should be understood as well. Hopefully, I have succeeded at least somewhat in shining light on these questions which, for some, have been frustratingly – perhaps intentionally – confusing puzzles.