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Thank you so much for your post!

The case won't hinge on the letterhead issue (and we don't know what letterhead Dini actually used).

I don’t think it will be brought up in court unless Dini uses the “acting in my personal capacity” defense.

The more significant issues, once the plaintiff gets past his "no standing" problems, are:

As I see this case, the plaintiff (student or the United States or both) has two issues to try and standing as follows:

A publicly funded institution through its agent, a professor, cannot have a policy which overtly coerces a student to disavow his religious beliefs - or affirm a religious belief he does not hold.

Student as plaintiff.

Since the mid-seventies, it has been established that states (and their employees) can be sued for discrimination despite sovereign immunity. Fitzpatrick v. Bitzer.

In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under § 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of a private individual against a state government found to have subjected that person to employment discrimination on the basis of [427 U.S. 448] "race, color, religion, sex, or national origin."{fn1fn11} The principal question presented by these cases is whether, as against the shield of sovereign immunity afforded the State by the Eleventh Amendment, Edelman v. Jordan, 415 U.S. 651 (1974), Congress has the power to authorize federal courts to enter such an award against the State as a means of enforcing the substantive guarantees of the Fourteenth Amendment. The Court of Appeals for the Second Circuit held that the effect of our decision in Edelman was to foreclose Congress' power. We granted certiorari to resolve this important constitutional question. 423 U.S. 1031 (1975). We reverse.

Wood v Strickland

While, on the basis of common law tradition and public policy, school officials are entitled to a. qualified good faith immunity from liability for damages under § 1983, they are not immune from such liability if they knew or reasonably should have known that the action they took within their sphere of official responsibility would violate the constitutional rights of the student affected, or if they took the action with the malicious intention to cause a deprivation of such rights or other injury to the student. But a compensatory award will be appropriate only if the school officials acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that their action cannot reasonably be characterized as being in good faith

United States as plaintiff.

If the DOJ intervenes with regard to equal protection, they may do it under 42 USC 2000h-2:

Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action

A publicly funded institution through its agent, a professor, cannot have a policy which discriminates among students making the same request for a letter of recommendation - such that targeted (or all but a targeted group of) students are not treated equally because of their religious beliefs

Student as plaintiff.

The student can bring a civil action for deprivation of rights under 42 USC 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia

United States as plaintiff.

The DOJ may be involved under 42 USC 2000c-

Whenever the Attorney General receives a complaint in writing –

(2) signed by an individual, or his parent, to the effect that he has been denied admission to or not permitted to continue in attendance at a public college by reason of race, color, religion, sex or national origin,

and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly achievement of desegregation in public education, the Attorney General is authorized, after giving notice of such complaint to the appropriate school board or college authority and after certifying that he is satisfied that such board or authority has had a reasonable time to adjust the conditions alleged in such complaint, to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder.

Here are the “issues” as you see them and my comments:

(1) the role, if any, of such letters in the professor's official state-financed duties; I would add that the role of letters of recommendation in granting admission to medical school may be of interest to the DOJ or the court. That would go to damages from the student’s civil case and to public interest in the DOJ’s case.

(2) whether the professor's insistance on accepting evolution is commendable academic rigor, or actually constitutes a form of religious discrimination; and I dispute that will be an issue at all. The point is whether he can require an “truthful affirmation” of a theory which disavows one’s “cherished beliefs.” The argument that “cherished beliefs” does not mean religion will be defeated on the basis of Dini’s homepage, wherein I understand he declares a campaign against creationism and the fact that he is requiring an affirmation (an oath, like a loyalty oath) rather than statement of the theory.

(3) notwithstanding the answer to #2, the professor's freedom to use such a criterion -- acceptance of human evolution -- as a factor in his decision to recommend a biology student. The really big pdf file I linked yesterday from AAUP shows that the courts have ruled academic freedom is an institution right not an individual right and not a constitutional right. Personally, I think this kind of defense – if not very carefully played - could anger the judge by leaving the impression that the professor thinks individual academic rights ought to supercede the constitution.

The best defense I have found for the university and the professor lies with state sovereign immunity. Historically, individual rights (equal protection in particular, but also freedom of religion) have weighed against immunity. But if ever there was a time to press for immunity, this would be it – because this particular USSC, just this term, upheld the eleventh amendment vigorously in Federal Maritime Commission v. South Caroline State Ports Authority. The case did not have a fourteenth amendment issue, but it shows a desire on the USSC to uphold state sovereign immunity.

In this article, AAUP describes the meaning of the state sovereignty issue to professors as plaintiffs The Sleeper Amendment: Sovereign Immunity. But the same issues arise when the university is defendant in a suit brought by a student.

In this 2001 case a student sued a university for gender discrimination by a professor Hayut v. State University of New York (U.S. District Court, New York, 2001)

In court she alleged that university officials either "knew or should have known" that Professor Young "exhibited bizarre, disturbing, sexually harassing, and gender-discriminatory behavior toward students." The professor moved to dismiss the claim, but the court ruled that the student made a potentially supportable claim of discrimination and sexual harassment. While she could not sue the school in federal court (except under Title IX), because it was protected by Eleventh Amendment sovereign immunity, she could sue the professor individually under the Civil Rights Act and under New York's Human Rights Law.

As you said, we’ll see where this goes – but the more I look at it, the more I think the DOJ will find merit to pursue it if the university/professor do not voluntarily change the requirement.

As for the kid, I’m still hoping somebody will remind him about I Cor 6:1-8. Creationists (to my knowledge) believe as I do that the Bible is the inerrant Word of God and thus if he cannot “truthfully affirm” on that tenet, then he should also stand down on I Cor 6:1-8 (especially now we know that Dini is Catholic. They may not agree on the interpretation, but they have the same Savior.)

A-Girl, we are so far apart on this I'm just amazed. The way I see it, if the DOJ comes down on Dini, he's going to be another Galileo -- persecuted by the authorities for sticking to his scientific principles and refusing to bend. Now let's just wait and see what happens; and for the sake of our cyber relationship, let's give it a rest.

Marvin Olasky . . . writer (( link // thread )) -- of this article ...

"Any scientist who jumps beyond the scientific method to issue decrees on things not subject to observation or testing is overreaching."

Dini and all his sympathizers - - - holocaust // inquisition !

Main Entry: ho·lo·caust
Pronunciation: 'hO-l&-"kost, 'hä- also -"käst or 'ho-l&-kost
Function: noun
Etymology: Middle English, from Old French holocauste, from Late Latin holocaustum, from Greek holokauston, from neuter of holokaustos burnt whole, from hol- + kaustos burnt, from kaiein to burn -- more at CAUSTIC
Date: 13th century
1 : a sacrifice consumed by fire
2 : a thorough destruction involving extensive loss of life especially through fire < a nuclear holocaust >
3 a often capitalized : the mass slaughter of European civilians and especially Jews by the Nazis during World War II -- usually used with the b : a mass slaughter of people; especially : GENOCIDE