ABA Accreditation Complaint Against BYU Law

MEMORANDUM OF COMPLAINT
AGAINST BYU LAW

Brigham Young Universitys J. Reuben Clark Law School (BYU Law), sponsored by The
Church of Jesus Christ of Latter-day Saints (LDS Church), did not comply with the American
Bar Associations 2014-2015 Standards and Rules of Procedure for Approval of Law Schools
(Standards) during that academic year; has not complied in earlier years; and remains
noncompliant because of prima facie discrimination based on religion and other protected
classifications, as well as other non-compliant policies.
BYU Law discriminates against non-LDS students, faculty, and staff who were formerly
affiliated with the LDS Church. BYU Law precludes the admission of individuals who were
formerly affiliated with the LDS Church. Students who disaffiliate from the LDS Church during
the course of their study are summarily dismissed from enrollment, terminated from student
employment, and evicted from university-contracted housing. With respect to faculty and staff
who are already disaffiliated from the LDS Church, BYU Law refuses to hire them; for those
employees who disaffiliate during employment, that employment is terminated by BYU Law.
BYU Law also fails to clearly and specifically articulate the requirements to enter, remain in
good standing, and graduate.
These practices violate Standards 205(a)(b)(c), 308(a)(b), 309(a), 405(b), and 509(a).
Table of Contents
Table of Contents ..................................................................................................................... 2
Background on the BYU Honor Code ..................................................................................... 5
The BYU Honor Code is subject to the ABA Standards ................................................. 5
A. The BYU Honor Code explicitly precludes admission of applicants and retention of
students on the basis of religion. ..................................................................................................... 5
Any BYU Law Student whose status changes to former LDS is dismissed from the
law school, evicted from on- or off-campus housing, and terminated from BYU employment
................................................................................................................................................. 7
BYU Law violates ABA Standard 205 by precluding admission and retention of former LDS
students because of their change in religious status........................................................................ 8
BYU Laws religion-based admission and retention policies violate Standard 205 by
contravening other Standards ................................................................................................ 13
Sexual orientation discrimination ................................................................................... 13
Gender discrimination .................................................................................................... 15
ABA Policies .................................................................................................................. 16
BYU Law fails to give complete notice to applicants .................................................... 17
Because the disaffiliation policy is not plainly stated, the Honor Code fails to provide
notice as required ................................................................................................................... 22
Specific policies relating to sexual orientation, gender, and religious discrimination are
not disclosed .......................................................................................................................... 23
BYU Law is not privileged to dismiss former LDS members under the U.S. Constitution . 23
BYUs religious purpose cannot be applied to policies excluding admission or retention
on the basis of religion........................................................................................................... 24
B. BYU Law violates ABA Standard 308 by outsourcing decisions on standing, dismissal,
and graduation eligibility to untrained and unaccountable lay church leaders who have no
affiliation with BYU Law and whose decisions are unpublished, unstandardized, and
unreviewable. ................................................................................................................................ 25
The lack of published criteria for ecclesiastical endorsements leads to arbitrary and
capricious decisions that could end a law students career ........................................................... 25
The BYU Honor Code violates due process expectations ..................................................... 28
Because actual eligibility criteria are unpublished, students cant predict what
behaviors will and will not lead to dismissal......................................................................... 28
Because the process for appealing the withdrawal of an ecclesiastical endorsement is omitted
from the law school application, students are not apprised of their appellate rights ........................ 28
2
LDS Church officials with inherent conflicts of interest make withdrawal and appeal
decisions, subjecting students unfairly to adverse standing and dismissal outcomes ........... 28
Because the BYU Honor Code Office can unilaterally remove a BYU Law students
good standing, and takes adverse action on a students good standing based on hearsay and
without specifying misconduct, it violates due process expectations ................................... 31
By subjecting BYU Law students to the good standing and dismissal standards of the BYU
Honor Code, BYU Law adheres to unsound academic standards in violation of 308(a) .................... 33
C. BYU Law fails to disclose the complete BYU Honor Code, its academic standards, and
graduation requirements................................................................................................................ 34
D. BYU Law violates ABA Standard 405(b) by failing to announce and establish an
academic freedom policy, and by outsourcing academic freedom regulation to untrained and
conflicted LDS Church leaders. .................................................................................................... 36
BYU Law does not have an announced policy .............................................................. 36
BYU Law does not have an established academic freedom policy ............................... 36
Academic freedom applies to graduate students as well as professors .......................... 36
The academic freedom of faculty is burdened ............................................................... 37
An academic freedom policy is not established when it is contravened in practice ...... 39
E. BYU Law violates ABA Standard 509(a) by providing incomplete, inaccurate, and
misleading information about its policies to students and applicants. ......................................... 39
Completeness ......................................................................................................................... 39
Accuracy ................................................................................................................................ 40
Religious discrimination................................................................................................. 40
Sexual orientation ........................................................................................................... 41
Gender discrimination .................................................................................................... 42
Misleading ............................................................................................................................. 42
Conclusion ............................................................................................................................. 42
Appendix................................................................................................................................ 43
Letter from Professor RonNell Jones .................................................................................... 43
BYU Honor Code .................................................................................................................. 45
BYU Honor Code (BYU Law application version) .............................................................. 50
BYU Honor Code law school application version Google search ................................... 52
Ecclesiastical Endorsement Form .......................................................................................... 54
Student Commitment Form ................................................................................................... 56
Header ............................................................................................................................ 56
3
Deans Certification ....................................................................................................... 56

Law school application: religious affiliation questions ......................................................... 59
Complaints Concerning the Program of Legal Education ..................................................... 60
Procedure for Student Complaints Regarding Law School Compliance with ABA
Standards ............................................................................................................................... 60
Mr. Quackenbushs Supporting Documentation ................................................................... 61
Selections from Application (applied as a Roman Catholic with no Honor Code
violations) .............................................................................................................................. 61
Acceptance Letter (accepted as a Roman Catholic) ....................................................... 61
Email Confirming Commitment to Attend (confirmed attendance as a Roman Catholic)
............................................................................................................................................... 63
Withdrawal Letter (pressured to withdraw after BYU Law categorized him as former
LDS) ...................................................................................................................................... 65
Mr. Penfolds Supporting Documentation ............................................................................. 66
Honor Code Office dismissal letter ................................................................................ 66
Notice to Vacate ............................................................................................................. 68
Signed Statement ............................................................................................................ 68
Ms. McCartys Signed Statement .......................................................................................... 69
LDS Churchs Opposition to Supreme Courts Definition of Marriage................................ 69
Disaffiliation Policy Not Protected by First Amendment...................................................... 70
Depriving individuals of things of value .................................................................... 70
Voluntary affiliation ....................................................................................................... 72
The ABA is not a state actor .......................................................................................... 73
Selected accounts evidencing the BYU environment relative to religious and academic
freedom ......................................................................................................................................... 73
Background on the BYU Honor Code

At BYU, all prospective students, current students, and faculty are required to adhere to the
BYU Honor Code in order to be admitted to academic programs, hired for school employment,
and retained. This includes applicants and students at BYU Law.1
As a condition for admission to BYU schools, the Honor Code requires both LDS and nonLDS students to obtain an ecclesiastical endorsement from a religious official; it then requires
a continuing endorsement each school year as a condition of retention2:
Students are required to be in good Honor Code standing to be admitted to,
continue enrollment at, and graduate from BYU. In conjunction with this
requirement, all enrolled continuing undergraduate, graduate, intern, and
Study Abroad students are required to obtain a Continuing Student
Ecclesiastical Endorsement for each new academic year.
For LDS students, the religious official can be a bishop, branch president or mission president
of the Church of Jesus Christ of Latter-day Saints.3 In most cases, the endorsement is signed by
an LDS bishop, a part-time male volunteer who is appointed to the role of a pastor, usually for
about three years, over a ward of roughly 200 students.
When applying to BYU Law, applicants are also required to obtain a 2nd [sic] interview
with a Stake Presidency or CES Chaplain.4 Stake Presidencies are a committee of three parttime male volunteers who are appointed for about five years to oversee several LDS wards. BYU
Law applicants who are not LDS must obtain their ecclesiastical endorsements from a local
religious leader AND BYU Chaplain.5
Compliance with the Honor Code, including an ecclesiastical endorsement, is mandatory for
admission and retention at all BYU institutions, including BYU Law6. Students, staff, and
faculty at BYU Law are required to comply with the BYU Honor Code as a condition of
employment, educational program admission, and retention.
The BYU Honor Code is subject to the ABA Standards
The BYU Honor Code must be consistent with the ABA Standards. Standard 201(d) states:
The policies of a university that are applicable to a law school shall be
consistent with the Standards. The law school shall have separate policies
where necessary to ensure compliance with the Standards.
Because BYU Law applies the Honor Code of its parent university, that Honor Code must
be consistent with the Standards.
A. The BYU Honor Code explicitly precludes admission of applicants and

retention of students on the basis of religion.
The BYU Honor Code recognizes three categories of students with respect to their religion:
LDS, non-LDS, and Former LDS.7 Former LDS students are not eligible to receive the
mandatory ecclesiastical endorsement. The Honor Code states, Former LDS students are not
eligible to receive an ecclesiastical endorsement.8
5
The ecclesiastical endorsement form also specifies that those who have formally left the
LDS Church by requesting to have their name removed from the LDS Church membership rolls
known as disaffiliation are not eligible for admission9 (emphasis added):
The First Presidency of The Church of Jesus Christ of Latter-day Saints
requests that ecclesiastical leaders not recommend students...who would
undermine the faith of other BYU students. Applicants who are currently
excommunicated, disfellowshipped, on formal probation, or who have
asked to have their name removed from the records of The Church of
Jesus Christ of Latter-day Saints are not admissible until reinstated to
full fellowship
Please check this box if the applicant is currently excommunicated,
disfellowshipped, on formal probation, or if the applicant has requested that
his or her name be removed from the records of the Church.
Because an ecclesiastical endorsement is an admission requirement, former LDS students
are categorically ineligible for admission to BYU Law. Because Former LDS is a category
based on religious affiliation, the BYU Honor Code explicitly precludes academic admission on
the basis of religion.
Any BYU Law Student whose status changes to former LDS is dismissed from the law
school, evicted from on- or off-campus housing, and terminated from BYU
employment
In addition to precluding admission to applicants who have disaffiliated from the LDS
Church, BYU Law also penalizes students who disaffiliate while attending, by automatically
withdrawing their ecclesiastical endorsement 10:
Excommunication, disfellowshipment, or disaffiliation from The Church of
Jesus Christ of Latter-day Saints automatically results in the withdrawal of
the students ecclesiastical endorsement and the loss of good Honor Code
standing. Disaffiliation is defined for purposes of this policy as removal of an
individuals name from the official records of the Church.
As an immediate consequence of having ones ecclesiastical endorsement withdrawn for
disaffiliation, BYU Law students are dismissed from BYU Law, fired from their university jobs,
and evicted from their university-contracted homes.
Because BYU Law does not maintain a separate honor code from the rest of BYU, under
Standard 201(d), the BYU Honor Code must be consistent with the Standards. Under that Honor
Code, the current administrative process for a BYU Law student who leaves the Church is as
follows:
Figure 1: How BYU Laws current policy works
11
The experience of Curtis Penfold demonstrates how this process unfolds.12 Mr. Penfold
entered BYUs undergraduate program as a member of the LDS Church, but he left the church
midway through a semester. He did so by following the official procedure: An adult member
who wishes to have his name removed from the membership records of the Church must send the
7
bishop a written, signed request.13 Mr. Penfolds disaffiliation triggered swift action: in the
week immediately following his disaffiliation, the Honor Code Office sent Mr. Penfold a letter
which stated that Effective immediately, you are no longer eligible to attend daytime or evening
classes, to register for other courses, to graduate from BYU, to work for the university, or to
reside in BYU contract housing:
Dear Curtis,
Bishop RUSSELL F. WARNER has informed the Honor Code Office that
your ecclesiastical endorsement has been withdrawn. Since university policy
requires all students to have a current qualify for a new one. Effective
immediately, you are no longer eligible to attend daytime or evening classes,
to register for other courses, to graduate from BYU, to work for the
university, or to reside in BYU contract housing. You cannot enroll in or be
enrolled in any BYU course that could apply to graduation, including but not
limited to Independent Study courses, until you are returned to good standing.
Please note that you may not represent the university or participate in any
university programs such as Study Abroad, academic internships, performing
groups, etc. A hold has been placed on your record which will prevent you
from being considered for admission to any Church Educational System
school until you are returned to good Honor Code standing. Good Honor
Code standing includes a valid, current ecclesiastical endorsement.
After receiving this letter, Mr. Penfold: (1) was fired from his on-campus job, (2) was
removed by Discontinuance from his classes, and (3) received a Notice to Vacate from his BYU
contracted housing landlordi. Leaving the LDS Church whether because of expulsion from the
church for any number of religious reasons, or because of a change of religious conviction
violates the Honor Code, and automatically triggers these consequences.
BYU Law students are subject to the same BYU Honor Code as Mr. Penfold, and many
BYU Law students are employed on campus and reside in BYU contracted housing.14 LDS
students who disaffiliate while attending BYU Law are, per the BYU Honor Code, subject to
dismissal, termination from school employment, and eviction from university-contracted
housing.
BYU Law violates ABA Standard 205 by precluding admission and retention of
former LDS students because of their change in religious status
The ABA accreditation Standards require that law schools not preclude admission or
retention of students on the basis of religion. Standard 205 states:
Notably, BYU Laws practice is inconsistent with the Federal Fair Housing Act, which prohibits evicting
tenants for changing religions. By subjecting BYU Law students to the Honor Codes enforcement regime, which
includes directing BYU-contracted landlords to evict LDS students who disaffiliate, BYU Law is complicit in
violating federal law. [The Fair Housing Act (Title VIII of the Civil Rights Act of 1968): 42 U.S.C. 3604 Sec. 804.]
(a) A law school shall not use admission policies or take other action to
preclude admission of applicants or retention of students on the basis of race,
color, religion, national origin, gender, sexual orientation, age, or disability.
(b) A law school shall foster and maintain equality of opportunity for
students, faculty, and staff, without discrimination or segregation on the basis
of race, color, religion, national origin, gender, sexual orientation, age, or
disability.
(c) This Standard does not prevent a law school from having a religious
affiliation or purpose and adopting and applying policies of admission of
students and employment of faculty and staff that directly relate to this
affiliation or purpose so long as (1) notice of these policies has been given to
applicants, students, faculty, and staff before their affiliation with the law
school, and (2) the religious affiliation, purpose, or policies do not contravene
any other Standard, including Standard 405(b) concerning academic freedom.
These policies may provide a preference for persons adhering to the religious
affiliation or purpose of the law school, but may not be applied to use
admission policies or take other action to preclude admission of applicants or
retention of students on the basis of race, color, religion, national origin,
gender, sexual orientation, age, or disability. This Standard permits religious
affiliation or purpose policies as to admission, retention, and employment
only to the extent that these policies are protected by the United States
Constitution. It is administered as though the First Amendment of the United
States Constitution governs its application.
As discussed above, BYU Law singles out former LDS students as a distinct religious group
and precludes their admission and retention. By contrast, non-LDS students who enter BYU Law
can convert to the LDS Church, any other religion, or none at all, without adverse consequence:15
Students who wish to change their religious status to LDS must bring a copy
of their baptismal certificate, a letter from their bishop, or membership record
stating their baptism date to Records and Registration Services by mail, fax,
or in person.
Students who are not LDS and wish to change their religious status to another
non-LDS religion may do so online.
However, if an LDS student attending BYU Law disaffiliates from the religion, that student loses
his or her academic standing, is dismissed, and is evicted from on- or off-campus student
housing. This disaffiliation policy applies to LDS students who convert to another religion, such
as Islam, Catholicism, and other faiths, because joining another religion is a cause for
excommunication16.
The burden of this policy is especially heavy on students who had previously converted to
the LDS Church, then wish to return to their earlier religion. For example, if a Catholic-turnedLDS law student returned to the Catholic faith, that student would be subject to dismissal and, if
employed on campus, termination17.
In addition to current students, prospective students of different faiths that were formerly
LDS are ineligible to receive an ecclesiastical endorsement, which is necessary for admission to
BYU Law. Therefore, rather than merely preferring LDS students, BYU Law uses its admission
policy to preclude admission of applicants and retention of students on the basis of religious
affiliation.
BYUs policy of precluding admission and retention of former LDS law students was
implemented many years after BYU Law was first accredited by the ABA18:
When BYU began targeting former LDS students in 1993, BYU spokesperson Margaret
Smoot explained19:
What this policy does is create an additional category. We are no longer
lumping former members of the church with nonmembers. Former members
are now in their own category.
10
Rex Lee, BYUs President at the time, and before that the founding dean of BYU Law,
confirmed the religion-based segregation20:
The boards decision, which I agree with, is that members who have left the
LDS Church belong in a different category than the members of good faith
and the non-members who attend.
BYU continues to single out former LDS students as a separate category which is ineligible
for admission or retention, and justifies this segregation and consequent preclusion on the theory
that by leaving the LDS faith, such students are allegedly guilty of a betraying the commitments
they made as part of the faiths religious rituals. Carri Jenkins, the current BYU spokesperson,
recently reaffirmed that theory as the reason behind the schools commitment to dismiss former
LDS (Mormon21) students22:
BYU spokeswoman Carri Jenkins acknowledged that Mormons who change
faiths are treated differently than those who enter as non-LDS. Nonmembers
have not made promises and commitments that a member of the church has,
Jenkins says. A former Mormon who decides to leave the church, distances
themselves from those promises and commitments. The result is that they are
not eligible to attend BYU.
The reasoning of BYUs official is suspect. Even if a LDS student were to have made a
promise not to leave the LDS Church, this would be a purely religious commitment with no legal
effect. An individuals freedom to change religious affiliation is protected under the U.S.
Constitution, and is a universal human right under international law. The ABA has affirmed23
Article 18 of the Universal Declaration of Human Rights, including the freedom to change
religions:
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom either
alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance.
Because it is inalienable, freedom of religion cannot be contracted away by BYU Law students
and faculty no matter the universitys religious affiliation or the text of the BYU Honor Code.
The BYU Honor Code also contradicts ABA Interpretation 205-4:
The denial by a law school of admission to a qualified applicant is treated as
made upon the basis of race, color, religion, national origin, gender, sexual
orientation, age, or disability if the basis of denial relied upon is an admission
qualification of the school that is intended to prevent the admission of
applicants on the basis of race, color, religion, national origin, gender, sexual
orientation, age, or disability though not purporting to do so.
If BYU Law precluded admission to Seventh Day Adventists, that would clearly violate 205s
requirement because the preclusion is based on ones current religious affiliation. Discriminating
on the basis of an applicants former religious affiliation is still discrimination based on religious
affiliation. On its face, the Honor Code discriminates based on religious affiliation24:
11
Students must be in good Honor Code standing to be admitted to, continue

enrollment at, and graduate from BYU. The term good Honor Code
standing means that a students conduct is consistent with the Honor Code
and the ideals and principles of The Church of Jesus Christ of Latter-day
Saints. Excommunication, disfellowshipment, or disaffiliation from The
Church of Jesus Christ of Latter-day Saints automatically results in the loss
of good Honor Code standing.
This policy is enforced in practice: BYU Law actively discriminates against former-LDS
students and faculty by subjecting them to an Honor Code regime that dismisses, evicts, and
terminates them when they exercise their constitutionally protected right to convert to another
faith. Consider the experience of Blake Quackenbush. BYU Law admitted Mr. Quackenbush to
BYU Law as a Roman Catholic in 2008, and then withdrew admission upon discovery that he is
a former Mormon.25
Mr. Quackenbushs experience
I attended BYU as an undergraduate in the English program from 2003 to
2008 as a member of the LDS Church; I graduated Magna Cum Laude with a
3.92 GPA in April 2008; I converted to Catholicism on July 7, 2008; and I
planned to attend law school Fall 2008. I applied to numerous schools across
the country (approximately 40), and an estimated 50% accepted me for
admission, including BYU Law.
On June 4, 2008 Carl Hernandez, BYUs Chair of the Faculty Committee on
Admissions, contacted me to congratulate me on my admission to BYU. He
then instructed me to contact the other schools that had accepted me to let
them know about [my] firm commitment to attend elsewhere. According to
his directions, I submitted my formal notice to withdraw my application to
the other schools that had accepted me.
In August 2008, one week before orientation, Carl Hernandez invited me to
his office and told me that he had been informed that I was not LDS and that,
as a disaffiliated student, I could not attend BYU. I was surprised because my
application to BYU clearly stated my religious affiliation as Roman
Catholic. After all, I was officially baptized on July 7, 2008. Prior to my
baptism, I applied to BYU as a Catholic because I knew that at the time I
entered BYUs law school, I would be Catholic and I did not want to
misrepresent that I would be LDS. The application asked nothing about
whether I had ever been LDS or whether I was then currently LDS. I believed
I was being forthcoming and honest because I had been spiritually converted
but had not participated in the sacrament of baptism. Thus, my religious
affiliation was Roman Catholic, even though I would not be baptized until
later that year when I had undergone more catechism. Regardless, Carl
Hernandez instructed me that I had no choice but to withdraw my application
or be formally dismissed from the program. He told me that in the event I
was dismissed, I would have a much more difficult time getting accepted into
a law program at another school. The fear of not attending law school
because of my religious convictions was emotionally distressing.
12
I reached out to several good professors who could not help me. I was
ultimately directed to a representative at the Honor Code Office, who, in the
presence of my mother and my wife, stated that the only shot I had at
attending BYUs program was to renounce my Catholic baptism. I still
remember the look on my poor mothers face when I said I would do no such
thing (she, of course, wanting me to be LDS and attend BYU).
I am still a practicing Catholic who attends mass every Sunday, and I dont
regret my decision that day.
The weeks following my encounters with Carl Hernandez and the Honor
Code Office involved a lot of pandering on my part for any sort of mercy
BYU would offer me. I made every attempt to reaffirm my seat at other law
schools from which I had withdrawn, but none accepted me. Needless to say,
since I had given up my spot based on Carl Hernandezs advice, I had
nowhere to go. My only option was to retake the LSAT and apply to the same
schools again.
As Mr. Quackenbushs experience shows, BYU Law enforces the BYU Honor Code,
including what its admissions chairman referred to as the disaffiliation policy.26
BYU Laws religion-based admission and retention policies violate Standard 205 by
contravening other Standards
Standard 205 does not prevent a school from maintaining a religious affiliation or purpose,
as long as certain conditions are met. One of these conditions is that the religious policy does not
contravene any other standard. Standard 205(c) states:
school, and (2) the religious affiliation, purpose, or policies do not contravene
any other Standard, including Standard 405(b) concerning academic freedom.
The BYU Honor Code violates Standard 405(b), three other Standards (as detailed in this
Memo), 205s prohibition on admission and retention on the basis of sexual orientation, 205s
prohibition on admission and retention on the basis of gender, and other ABA Policies. BYU
Laws application of the BYU Honor Code to burden the religious and academic freedom of
faculty and students thus renders it ineligible for the stated privilege of applying policies of
admission of students and employment of faculty and staff that directly relate to this affiliation or
purpose.
Sexual orientation discrimination
Standard 205 prohibits discrimination on the basis of sexual orientation. However, BYU
Law precludes admission and retention of students on the basis of sexual orientation. The BYU
Honor Code states:
13
Homosexual behavior is inappropriate and violates the honor code.

Homosexual behavior includes not only sexual relations between members of
the same sex, but all forms of physical intimacy that give expression to
homosexual feelings.
Thus, a gay or lesbian law student is precluded from any homosexual behavior, a vague term
that includes any form of physical intimacy such as caressing or kissing another of the same
sex, ostensibly because those forms of physical intimacy give expression to homosexual feelings:
a privilege not denied to heterosexual students.
A prohibition against kissing a same-sex romantic partner is a form of orientation-based
discrimination, because this kind of homosexual behavior is closely correlated with being
homosexual. In the majority reasoning for Christian Legal Society27, Justice Ginsburg famously
eschewed distinguishing between status and conduct with respect to sexual orientation. Writing
for the majority, she stated:
Our decisions have declined to distinguish between status and conduct in this
context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) (When
homosexual conduct is made criminal by the law of the State, that declaration
in and of itself is an invitation to subject homosexual persons to
discrimination.); id., at 583 (OConnor, J., concurring in judgment) (While
it is true that the law applies only to conduct, the conduct targeted by this law
is conduct that is closely correlated with being homosexual. Under such
circumstances, [the] law is targeted at more than conduct. It is instead
directed toward gay persons as a class.); cf. Bray v. Alexandria Womens
Health Clinic , 506 U. S. 263, 270 (1993) (A tax on wearing yarmulkes is a
tax on Jews.)
Though BYU Laws Non-Discrimination policy claims it is only obligated to provide equal
opportunity on the basis of sexual orientation but not on the basis of conduct,28 the Supreme
Court has declined to distinguish the two.
In addition, LDS students who marry same-sex partners are formally disciplined29, thus
leading to the revocation of their ecclesiastical endorsement. The Honor Code states that formal
church discipline automatically results in the loss of good Honor Code standing. Therefore, in
addition to the prohibition on same-sex kissing and caressing, gay LDS applicants and students
are prohibited from exercising their fundamental right to marry while attending BYU Law30.
Non-LDS homosexual students are also impacted, because they are prohibited from having
sex at all in or out of marriage. While a heterosexual student can have sex once she marries an
opposite-sex partner, a non-LDS homosexual student is barred from sex even after marriage. The
law of chastity, as defined in the BYU Honor Code, makes no provision for non-LDS students
who marry a same-sex partner to have sex with that spouse:
[T]he Honor Code requires all members of the university community to
manifest a strict commitment to the law of chastity. Homosexual behavior is
inappropriate and violates the Honor Code.
14
Thus, under the BYU Honor Code, homosexual, non-LDS applicants and students are
precluded from engaging in homosexual conduct even though they may be legally married to
someone of the same sex; perforce, even consensual intimate relations between married samesex partners are precluded by the Honor Code. These examples regarding same-sex kissing, sex,
and marriage demonstrate that BYU Law engages in prohibited sexual orientation
discrimination.
Gender discrimination
Standard 205 prohibits applying religious policies on the basis of gender as well as sexual
orientation. Because transgender persons who undergo sex-reassignment surgery are precluded
from admission and retention, BYU Law precludes admission and retention of LDS students on
the basis of gender.
The patriarchal LDS Church is governed by a male-only priesthood class, and considers sex
reassignment surgery to be a serious sin. According to the Handbook 1: Stake Presidents and
Bishops,31 when a member is considering sex-reassignment surgery, the presiding officer
advises him that the operation may be cause for formal discipline.32 When a member is
excommunicated for undergoing sex reassignment surgery, she must receive First Presidency
approval in order to be reinstated as a member: a distinction reserved for a short list of offenses
that includes incest and murder33. In the rare case that someone becomes a member after sex
reassignment surgery (itself an arduous process requiring approval from the highest authority in
the LDS Church, the First Presidency34), the Unusual Circumstances section states that such
persons cannot join the governing priesthood class.35 During my eight years attending BYU and
actively participating in dozens of extracurricular organizations on campus, I never once
observed or heard of a transitioned student, faculty, or staff.
Additionally, bishops have discretion to withdraw endorsements for other undesired
expressions of gender identity, including cross-dressing36. I am currently providing assistance to
a transgender BYU student who was dismissed and consequently received a notice to vacate
from her landlord.
Sex-reassignment surgery is closely connected to gender identity and desired gender
expression for many transgender persons. Under the Honor Code, excommunication
automatically results in the withdrawal of the student's ecclesiastical endorsement and the loss of
good Honor Code standing. For LDS transgender students, sex-reassignment surgery triggers
excommunication: and thus, under the honor code, automatic dismissal from BYU Law. Because
transgender applicants excommunicated under this policy are ineligible for admission (under the
former LDS clause), this policy amounts to preclusion of admission and retention on the basis
of gender.
Further, subjecting transgender individuals to loss of good Honor Code standing violates the
higher standard required under 205(b), namely equality of opportunity without discrimination on
the basis of gender. Even if only a subset of transgender persons are dismissed by application of
the policy, such application is impermissible discrimination on the basis of sex.
15
ABA Policies
The ABA accreditation standards operate within the environment of overarching ABA
policy. Three ABA policies are relevant to include in this memorandum, because, as overarching
ABA policy, they establish parameters of the enumerated Standards for ABA accreditation.
Religious Liberty Restoration Act
Religious Liberty Restoration Act. Support in principle the enactment of
federal legislation such as the Religious Liberty Restoration Act of 1990,
requiring that the federal and state governments demonstrate that any law
interfering with the free exercise of religion (1) is essential to furthering a
compelling governmental interest; and (2) is the least-restrictive means of
furthering that interest. 91M10537
The BYU Honor Code clearly interferes with the free exercise of religion of BYU Law
students, as demonstrated above. Allowing a ten-member Board of Trustees38 to burden the
individual religious exercise of thousands, as the BYU Board does by enforcing its disaffiliation
policy against all LDS students at BYU, including BYU Law, is to allow for greater
infringement on religious liberty than would otherwise be permitted. Thus, there is no
compelling government interest furthered by the burden the Honor Code imposes on
disaffiliating or questioning LDS students: it follows that the restriction cannot be essential to
that putative interest. Any legitimate interest could be addressed by simply treating former LDS
students the same as non-LDS students, because hundreds39 of non-LDS students already attend
BYU and BYU Law: thus, the current imposed burdens are not the least-restrictive means.
Discrimination
Discrimination. Reaffirm, in light of the decision in the Bakke case, ABA
position taken in 1972 encouraging programs at law schools having as their
purpose the admission to law school and ultimately to the legal profession of
greater numbers of interested but disadvantaged members of minority groups
who are capable of successful completion of law school; urge the law schools
of this nation to renew their commitment to provide adequate and appropriate
opportunity for members of disadvantaged groups; and also urge that efforts
be made by the legal profession to provide greater means of financial
assistance for all students admitted to law school with financial need and that
adequate and appropriate employment opportunities be provided to persons
who complete their legal education, are admitted to the bar and are members
of groups which have previously encountered discrimination in seeking
employment. 8/78BOG1040
BYU Law is located in Utah, a state which has only two law schools41. In that state, more
than half the residents are LDS42. At BYU more than 98% of the students are LDS43. Given the
negative stereotypes imposed on former Mormons (members often pejoratively refer to them as
apostates), including at BYU, those that leave Mormonism are members of a disadvantaged
minority group. This minority group provides valuable religious diversity, and is prima facie
barred from admission to and retention at BYU Law exactly contrary to BYU Laws
16
obligation under this policy to provide adequate and appropriate opportunity for admission to
BYU Law. LDS students who change religions while attending are also deprived of the
appropriate opportunity to graduate from BYU Law.
Federal Funding
Federal Funding. Oppose federal financial assistance for institutions that
discriminate in any of their operations, and support enactment of legislation
to restore the principle of requiring nondiscrimination throughout an
institution receiving federal financial assistance. 86M10244
BYU Law and its parent, BYU, receive federal financial assistance45. As shown above, they
also discriminate based on religion in their operations (hiring, admissions, retention, etc.). Thus,
BYU Laws practice is inconsistent with its receipt of federal financial assistance. The ABAs
endorsement of such an institution via accreditation is arguably inconsistent with its own stated
policy.
Thus, by subjecting students to the BYU Honor Code, BYU Law violates these three ABA
policies. Because these policies establish parameters of the enumerated Standards for ABA
accreditation, BYU Law is prohibited from applying the BYU Honor Codes discrimination to its
students and applicants.
BYU Law fails to give complete notice to applicants
BYU Law does not present the whole Honor Code to its applicants, and thus fails to provide
the required notice. Under Standard 205, religious policies are not prevented, as long as certain
conditions are met: the second of these conditions is that notice of the policies is given to
applicants, students, faculty, and staff before their affiliation with the law school. Standard 205
states:
school
As shown in the Background on the BYU Honor Code section, BYU Law makes it clear
that students and faculty are subject to the BYU Honor Code. However, BYU Law omits
material sections of the BYU Honor Code in its law school application. The BYU Honor Code
word count is 2,367; the BYU Honor Code as presented in the BYU Law School application is
1,134 words, less than half the size of the original.
Additionally, the version of the BYU Honor Code included in the law school application is
not available on any official BYU or BYU Law site: instead, only the official, 2,367-word
version maintained by BYU is published in BYUs online catalog46. Both versions are included
in full in the appendix.
17
The following is a point-by-point comparison of the BYU Honor Code published47 by (A)
the policys owner, BYU,48 and (B) BYU Law in its law school application.49 The analysis is
organized with one heading for each material omission in the law school application version.
Material Omission: Former LDS students are ineligible for enrollment
BYU Law Application Version:
LDS Students: LDS Students may be endorsed only by the bishop of the ward
(1) in which they live and (2) that holds their current church membership
record.
Non-LDS Students: Non-LDS students are to be endorsed by (1) the local
ecclesiastical leader if the student is an active member of the congregation,
(2) the bishop of the LDS ward in which they currently reside, or (3) the nondenominational BYU chaplain.
Requirements: Whether on or Off campus and between semesters, all
students are expected to abide by the Honor Code ...
18
BYU Version:
LDS Students may be endorsed only by the bishop of the ward (1) in which
they live and (2) that holds their current church membership record.
Non-LDS Students: Non-LDS students are to be endorsed by (1) the local
ecclesiastical leader if the student is an active member of the congregation,
(2) the bishop of the LDS ward in which they currently reside, or (3) the nondenominational BYU chaplain.
Former LDS students are not eligible to receive an ecclesiastical endorsement
(See Withdrawn Ecclesiastical Endorsement below).
Requirements: Whether on or off campus and between semesters, all students
are expected to abide by the Honor Code ...
In this case, the two excerpts are word-for-word identical, with the exception that the BYU
Law application version omits the language that would notify an applicant that disaffiliating
from the LDS Church at any point makes one ineligible to attend BYU Law. Additionally, in the
Religious Affiliation section of the online application, BYU Law fails to ask or provide a field
for the applicant to indicate whether she used to be a member of the LDS Church50.
Material Omission: Disaffiliation automatically results in withdrawal of the students
ecclesiastical endorsement and the loss of good Honor Code standing
Contains no content regarding disaffiliation.
BYU Version:
Excommunication, disfellowshipment, or disaffiliation from The Church of
Jesus Christ of Latter-day Saints automatically results in the withdrawal of
the students ecclesiastical endorsement and the loss of good Honor Code
standing. Disaffiliation is defined for purposes of this policy as removal of an
individuals name from the official records of the Church.
Material Omission: LDS bishops can withdraw an ecclesiastical endorsement at will
Contains no content regarding withdrawn ecclesiastical endorsements.
BYU Version:
Withdrawn Ecclesiastical Endorsement
A students endorsement may be withdrawn at any time if the ecclesiastical
leader determines that the student is no longer eligible for the endorsement. If
an endorsement is withdrawn, no confessional information is exchanged
without authorization from the student. Students without a current
endorsement are not in good Honor Code standing and must discontinue
enrollment.
19
Material Omission: Bishops decisions can only be appealed

through higher ranking LDS ecclesiastical leaders
Contains no content regarding appeals.
BYU Version:
The decision to withdraw an ecclesiastical endorsement may be appealed
through appropriate ecclesiastical leaders only.
Material Omission: Homosexuals are held to a different behavioral standard
than heterosexuals
Contains no content regarding homosexual behavior.
BYU Version:
Homosexual behavior is inappropriate and violates the Honor Code.
Homosexual behavior includes not only sexual relations between members of
the same sex, but all forms of physical intimacy that give expression to
homosexual feelings.
Material Omission: Honor Code violations can prevent students from graduating even
after successfully completing the necessary coursework
Contains no content regarding post-coursework graduation restrictions.
BYU Version:
Students who are not in good Honor Code standing are not eligible for
graduation, even if they have completed all necessary course work.
Material Omission: Violating the Honor Code may result in dismissal
Contains no content regarding violations leading to dismissal.
BYU Version:
Violations of the Honor Code may result in action up to and including
separation from the university.
By omitting material portions of the BYU Honor Code, the law school application version
fails to notify applicants of the policy before their affiliation with BYU Law.
20
Materiality
Policies that would significantly affect an applicants admissions decision and quality of life
in law school are material. Applicants need to receive the omitted information in order to make a
decision/judgment that can be adequately construed as fully informed of relevant facts.
Though there are many other differences between the BYU Honor Code presented in the
BYU Law application and the actual BYU Honor Code published by BYU, the comparisons
above demonstrate that applicants were not adequately notified of the policies they would be
subjected to. To illustrate, consider an LDS lesbian applicant to BYU Law. She is subject to an
Honor Code under which she may be dismissed, evicted, and terminated if:
1. She changes her religion after commencing her course of study.
2. She marries, has sex with, caresses, or kisses another person of the same sex.
3. Her local bishop withdraws, or refuses to renew, the mandatory annual ecclesiastical
endorsement.
4. She violates the Honor Code at any time (including the months between when she
completes her coursework, and when her law degree posts).
Applicants cannot be expected to assume policies that are counter to public policy: BYU
Law is obligated to tell applicants where they will be discriminated against on the basis of
protected classes or for exercising human or constitutional rights.
Because changing religions is an inalienable human right under international law as well as
a fundamental right51 under the U.S. Constitution52, and recent U.S. Supreme Court
developments now ensure that marrying a same-sex partner is recognized as a fundamental right,
these omissions are material.
A prohibition for homosexuals on kissing and caressing another person of the same sex is
also material, because it violates the principle of equal protection relative to heterosexuals and
because physical intimacy is fundamental to the human experience and a fundamental right
protected under the free association clause of the First Amendment as held by the U.S. Supreme
Court in Lawrence v. Texas (2003).
Also, the fact that an ecclesiastical leader can unilaterally withdraw (or refuse to renew)
ones endorsement is material because, as will be explained more fully, that leaders withdrawal
(1) triggers dismissal and (2) violates due process expectations.
Last, the policy providing for deprivation of an earned degree after graduation is material,
since students cannot move forward in their careers without BYU Law taking action to post the
degree after graduation. This policy has been unfairly applied to prevent students from
graduating even when they were otherwise compliant with the Honor Code. Chad Hardy, for
instance, had completed all the requirements for graduation, and wore his cap and gown when he
walked with the rest of his class, but was deprived of the posting of his degree because a local
LDS disciplinary council in Nevada excommunicated Mr. Hardy for a reason other than violation
of the BYU Honor Code, after Mr. Hardys completion of graduation requirements.53 In addition
to numerous other due process violations, Mr. Hardy was not provided with notice or a hearing,
21
and only discovered the deprivation after multiple phone inquiries he made when his diploma
failed to arrive.
Failure to disclose
Though the BYU Law application references the commonly understood and BYU-published
version, it provides no indication that there is more to the BYU Honor Code than the 1,134-word
patchwork it provides, ending with:
For more details on specific policies, please contact the Honor Code Office:
4440 WSC. (801) 422-2847, email: hco@byu.edu, http://honorcode.byu.edu
The endorse.byu.edu referenced on BYU Laws Apply Now page presents an even more
abbreviated Honor Code, a 686-word version that excludes the omissions documented above in
addition to others.54
A reasonable applicant has no reason to be aware of the material omissions of the BYU
Honor Code, having been presented with what appears on its face to be the complete policy, right
there in the law school application. Despite this, BYU Law students are actually subject to an
Honor Code and an enforcement regime that are far more intrusive on their freedoms than
disclosed in the law school application version. In essence, BYU Law applicants have been
baited with one version of the Honor Code but are later subjected to a switched version,
contrary to the notice requirement of 205(c)(1).
Because the disaffiliation policy is not plainly stated,
the Honor Code fails to provide notice as required
Notice, to be sufficient, must be understandable to the audience it is presented to: in this
case, reasonable students, staff, and faculty considering affiliation with BYU Law school.
However, for individuals to be informed of and understand BYU Laws policy on eligibility
for admission and retention with respect to their religion, individuals must correlate
interdependent criteria appearing in independent clauses in confusingly disparate placements
within the BYU Honor Code. The overarching criterion for admission and retention at BYU Law
is maintaining good Honor Code standing. However, maintaining good Honor Code
standing requires maintaining an annual ecclesiastical endorsement. Only by careful review
of other sections can individuals also find the relevant sections that state those individuals who
have left the LDS Church are ineligible for any ecclesiastical endorsement, as are those who
leave the LDS Church during the course of their study.
Only by inordinately painstaking review of the different sections of the Honor Code can the
most diligent individuals understand that:
1.
2.
3.
4.
Good Honor Code standing is required for admission and retention in BYU Law;
An ecclesiastical endorsement is required to achieve good Honor Code standing;
Eligibility is required to obtain the ecclesiastical endorsement;
Individuals who have left the LDS Church at any time are not eligible for an
ecclesiastical endorsement.
22
Even if BYU Law were somehow excused from the obligation to present the full Honor Code,
the Honor Code itself is not plain enough to satisfy the notice requirement.
Specific policies relating to sexual orientation, gender, and religious discrimination
are not disclosed
Additionally, many of the policies that discriminate on the basis of religion and gender are
not disclosed: they are found only in the secret Handbook 1: Stake Presidents and Bishops,
which is only available to bishops and stake presidents55:
This handbook has been prepared solely for use by general and local Church officers to
administer the affairs of the Church. It should not be duplicated or given to any other
persons. The distribution list includes a file copy to be kept in a secure place by each
stake and ward clerk When Church officers who have a copy of this handbook are
released, they give the copy promptly to their successors or to their presiding authority.
This book contains the instructions mandating excommunication for joining another church,
same-sex conduct, and sex-reassignment surgery: yet it is not available to the public. The reasons
for excommunications in actual cases are also not disclosed: When an announcement of Church
discipline is necessary, it is limited to a general statement that the person has been
disfellowshipped or excommunicated for conduct contrary to the laws and order of the
Church.56
Consequently, because lay members cannot access these policies or details of these policies
applications directly, perforce they cannot possibly be notified of the policies. A reasonable
LDS applicant would not have notice nor expect that joining another church is grounds for
excommunication. A reasonable LDS applicant could be expected to know that consensual samesex conduct is prohibited, but could not be expected to know it also warrants excommunication
from the LDS Church, along with such acts as rape, fraud, spousal abuse, intentional serious
physical injury of others, and attempted murder57. A reasonable LDS applicant could not be
expected to know that the intensely personal choice to undergo sex-reassignment surgery also
warrants excommunication from the LDS Church.
BYU Law has an obligation to disclose these policies to LDS applicants, students, faculty,
and staff: otherwise they could reasonably rely on the law schools affirmation of equal
opportunity without discrimination on the basis of religion, sexual orientation, and gender, only
to be subsequently surprised by the adverse application of these policies, including dismissal or
termination.
BYU Law is not privileged to dismiss former LDS members
under the U.S. Constitution
Standard 205 specifies:
This Standard permits religious affiliation or purpose policies as to admission, retention,
and employment only to the extent that these policies are protected by the United States
23
Constitution. It is administered as though the First Amendment of the United States

Constitution governs its application.
BYU Law cannot assert the Constitution as a defense, because the standard construes it as a
limitation, rather than expansion, of the scope of permitted application of religious policies. In
effect, Standard 205 permits only the intersection in this Venn diagram.
1 This memo shows that BYU Laws application of the BYU Honor Code falls outside each of these four circles
However: even if the Constitution were considered an expansion, rather than a limitation,
on BYU Laws religious affiliation or purpose policies, the disaffiliation policy would still fail58.
BYUs religious purpose cannot be applied to policies
excluding admission or retention on the basis of religion
The grant of religious affiliation and purpose in 205(c) is not unlimited in scope. In
particular it is bounded by an explicit prohibition on the use of admissions policies or other
action to preclude admission or retention on the basis of religion. Even if BYU Law fully
disclosed its policies and made them compliant with every other Standard, its policies of
24
expelling students and firing faculty because of their former religious affiliation cannot be
excused as simply a matter of preference for persons who share the schools religious affiliation
or purpose. This is because the Standard provides for preference in admissions only: not in
retention. (The preference clause came about as a result of the 1981 Oral Roberts University law
school dispute involving the admission requirement of a religious oath, and is limited to
preference in admissions). Thus, BYU Laws explicit policies governing admission and retention
of applicants based on their religion violates Standard 205.
Even if BYU Law dismissed only a portion of its students, staff, and faculty who disaffiliate
from the LDS Church, this would violate 205(b)s requirement to maintain equality of
opportunity for students, faculty, and staff, without discrimination or segregation on the basis
of religion. The standard for retention actions is higher than that of admission actions: rather
than merely forbidding preclusion, BYU Law is required to maintain equality of opportunity
without discrimination on the basis of religion. Subjecting existing students and faculty to the
Honor Code, under which LDS persons who express disbelief or conversion experience loss of
good standing and ineligibility for gradation or termination, falls impermissibly short of this
higher bar.
B. BYU Law violates ABA Standard 308 by outsourcing decisions on

standing, dismissal, and graduation eligibility to untrained and
unaccountable lay church leaders who have no affiliation with BYU Law
and whose decisions are unpublished, unstandardized, and
unreviewable.
Under Standard 308, BYU Law is obligated to publish and adhere to written due process
policies relative to good standing and graduation.
Standard 308(b) states:
(b) A law school shall adopt, publish, and adhere to written due process
policies with regard to taking any action that adversely affects the good
standing or graduation of a student.
BYU Law fails to meet this Standards requirement because the persons who have veto
power over law students good standing and graduation are not law school officials: rather, they
are untrained, non-professional lay church leaders whose decisions are arbitrary, capricious, and
unreviewable59. Consequently, BYU Law fails to meet the Standards requirements to publish
and adhere to written due process policies on good standing and graduation.
The lack of published criteria for ecclesiastical endorsements

leads to arbitrary and capricious decisions that could end a law students career
The BYU Honor Code allows an LDS law students bishop an untrained temporary lay
church leader who serves on a volunteer basis to trigger the students expulsion from the
25
school with a single phone call, or by refusing to sign the mandatory annual endorsement
renewal:
A students endorsement may be withdrawn at any time if the ecclesiastical
leader determines that the student is no longer eligible for the endorsement. ...
Students without a current endorsement are not in good Honor Code standing
and must discontinue enrollment
Further, a student is not in good Honor Code standing if his or her
ecclesiastical endorsement has either lapsed or has been withdrawn, or if the
Honor Code Office has placed a hold on the students records.60
Significantly, the Honor Code fails to state eligibility criteria for the ecclesiastical
endorsement, the maintenance of which is essential for a law student to continue to graduation.
This leaves eligibility entirely within the arbitrary discretion of a students LDS bishop who can
grant or deny endorsement based on his own personal opinions, biases, and prejudices. Given
bishops brief tenure (typically three or so years), and number (at BYU, they number in the
hundreds), this population changes almost constantly. Bishops jurisdiction is determined
geographically, and students often move: for all these reasons, it is common for BYU Law
students to have multiple bishops during their tenure at the school, and consequently impossible
for them to know who will decide, and thus what the limits will be, on their religious opinions,
personal behavior, and free speech.
The lack of consistent guidelines or standards for this procedure inevitably results in
arbitrary enforcement. Consider real life examples: some BYU students are dismissed for
smoking marijuana or having premarital sex, while other students who did the same receive
lesser punishment or no punishment at all, solely due to the bishops discretion. The lack of
published endorsement criteria creates what has been called bishop roulette, where a students
future at BYU Law can depend solely on chance as to the bishop to whom they have been
assigned, and that bishops subjective personal opinions.
FreeBYU has collected hundreds of stories from students61 (both BYU and BYU Law)
documenting the diversity of causes that have resulted in threats to withdraw or actual
withdrawals of ecclesiastical endorsements. Here are a few examples:
Suspicion that an LDS student has converted to another faith.

Knowledge that an LDS student has doubts about the LDS faith62.
Expression of religious doubts or conversion.
Research or writing about controversial social or academic issues like same-sex marriage,
the history of the LDS Church, sexism in church governance, the LDS Churchs doctrine,
etc.
Accusations from a students roommate about the students position on controversial
social or academic issues63.
Accusations from a students roommate about the students allegedly non-canonical
behavior64.
26
Bishops make no distinction between students attending BYU, and those attending BYU
Law, in their wards (the LDS term for a local congregation). Bishops (A) refusals to renew, (B)
withdrawals, and (3) threats to withdraw have concrete impacts on students speech. Example:
While a student at BYU Law, my bishop learned that I was writing a book about homosexuality,
and threated to withdraw my ecclesiastical endorsement if I publicly expressed support for
legalizing same-sex marriage. The law schools dean of students also summoned me to her office
and confronted me about my draft book. To avoid dismissal from BYU Law, I modified the
content of my book to make it appear that I was undecided about same-sex marriage (though I
was, in fact, an emphatic proponent).
In short, my ecclesiastical leader, who held no position at BYU Law, could have singlehandedly had me dismissed if I did not comply with his demand to censor and silence myself,
based solely on his personal opinion on one social issue. Notably, bishops are not obligated to
keep their demands consistent with statements of more senior LDS leaders: in my example, the
fact that higher-ranking LDS authorities, including its highest authority65, had repeatedly stated
that no ones church standing should be threatened by supporting same-sex marriage (e.g.
Latter-day Saints are free to disagree with their church on the issue without facing any
sanction66) granted me no protection.
LDS students frequently report similar behavior, censoring themselves in and out of the
classroom out of fear that their comments will be reported to their bishop and endanger their
ability to remain enrolled67. This hostile environment forces students to play what amounts to a
game of leadership roulette. Some bishops have less conservative views on controversial
topics, or may be more empathetic with the students under their jurisdiction, and thus refrain
from taking action against students who express doubt or dissent, even in comparatively public
or forceful ways. Other bishops threaten or dismiss students for perceived infractions as minor as
a doubtful comment left on a personal blog or social media profile. I am currently counseling a
privately unbelieving graduate who was placed on Honor Code probation for comments
published on his personal Facebook page that an Honor Code Office official considered
disrespectful (the posting of his degree was put on hold pending his completion of a scripture
journal, faith-affirming essays, time-stamped photos of himself, and other requirements to take
him off probation status).
Part of this unpredictability is attributable to instruction directing bishops to act according to
their subjective feelings in interviews, rather than evidence. Handbook 1 directs bishops to:
prepare spiritually before counseling a member by seeking the power of discernment and the
guidance of the Spirit. This guidance usually comes as impressions, thought, or feelings.68 A
law students academic fate can be decided by these bishops impressions, independent of fact.
Because their decisions are not published or subject to open review as are judicial opinions, it is
not uncommon for these bishops decisions to be influenced by mood, family relation to the
student, relationship with the student, and for decisions to be inconsistent even within a single
bishops jurisdiction.
27
BYU Law outsources the good standing of its students into the hands of transitory,
unaccountable, and untrained LDS bishops. Because the subjective personal opinions of these
bishops constitute actual eligibility criteria for endorsements that are essential to remaining in
school, and because the standards for those endorsements are unpublished and BYU Law
students can lose their good standing for violating them, BYU Law fails to adhere to a published
policy as required by 308(b).
The BYU Honor Code violates due process expectations

On its face and in its enforcement, the BYU Honor Code violates numerous recognized due
process expectations.
Because actual eligibility criteria are unpublished,
students cant predict what behaviors will and will not lead to dismissal
The lack of published standards violates due process expectations, because students cant
know in advance what behaviors will and will not lead to withdrawal of an ecclesiastical
endorsement (and thus the loss of their good standing). In my own example of expressing a
position on same-sex marriage legalization, the BYU Honor Code said nothing to warn me that,
in order to avoid dismissal from BYU Law, I would have to hide my opinion on a public legal
issue. I could not have known when I applied to BYU Law who my future bishop would be, and
even if I had, I could not have predicted what private, unpublished standards he would impose as
eligibility criteria for an ecclesiastical endorsement (including, in my case, the requirement to
censor myself and not publicly support same-sex marriage).
Because the process for appealing the withdrawal of an ecclesiastical endorsement is
omitted from the law school application, students are not apprised of their appellate rights
There is an appeals process for endorsement withdrawals but it is never presented in the
version of the BYU Honor Code presented by BYU Law in its law school application. It is thus
unpublished, in violation of the publication component of 308(b).
LDS Church officials with inherent conflicts of interest make withdrawal and appeal
decisions, subjecting students unfairly to adverse standing and dismissal outcomes
Even if it the appeals process could be considered published, it is published by BYU and not
its law school as required by 308(b). Further, what BYU does publish violates due process
expectations because only LDS Church officials with inherent conflicts of interest make appeal
decisions, and students have a due process expectation that adverse actions against them will be
made by those without a substantial conflict of interest. In the context of accreditation, the
AAUP articulates this need for institutional integrity69:
By academic tradition and by philosophical principle, an institution of higher learning is
committed to the pursuit of truth and to its communication to others.
28
To carry out this essential commitment calls for institutional integrity the maintenance
and exercise of such institutional integrity postulates and requires appropriate autonomy and
freedom
It must be morally responsible, but, even when church-related, it is not a religion or a
church. A college or university is an institution of higher learning. Those within it have, as a
first concern, evidence and truth rather than particular judgments of institutional benefactors,
concerns of churchmen, public opinion, social pressure, or political proscription.
Relating to this general concern corresponding to intellectual and academic freedom are
correlative responsibilities. On the part of trustees and administrators, there is the obligation
to protect faculty and students from inappropriate pressures or destructive harassments.
The commitment to institutional integrity as articulated here applies as much as, if not more, to
BYU Law. Contrary to this commitment, BYU Law grants unreviewable power to churchmen
over the retention and good standing of its students. The BYU Honor Code states:
The decision to withdraw an ecclesiastical endorsement may be appealed
through appropriate ecclesiastical leaders only BYU does not intervene in
ecclesiastical matters or endorsements.13
LDS bishops have no enforceable obligation to ABA Standards or BYU Laws policies,
including those that protect students academic and religious freedoms. Rather, their loyalty is
solely to the LDS Church. Students who doubt LDS teachings may stop obeying those teachings,
and the LDS Church is on record saying it will seek to restrict or revoke the membership
privileges of any member, including a BYU Law student, who expresses controversial views that
could influence others in that students congregation to disobey church teachings or lose their
faith. Such action will lead to the BYU Law students expulsion from the school. The highest
governing body of the LDS Church, its First Presidency, confirms as much in the ecclesiastical
endorsement form itself:
The First Presidency of The Church of Jesus Christ of Latter-day Saints
requests that ecclesiastical leaders not recommend students with unresolved
moral problems or students who would undermine the faith of other BYU
students. Applicants who are currently excommunicated, disfellowshipped,
on formal probation, or who have asked to have their name removed from the
records of The Church of Jesus Christ of Latter-day Saints are not admissible
until reinstated to full fellowship70.
LDS bishops are required to follow these instructions, and favor LDS faith over the religious
freedom of disaffected LDS students. The ecclesiastical endorsement form fails to instruct
ecclesiastical leaders to honor a students religious or academic freedom.
This stated interest of preserving LDS faith can be, and many times is, accomplished by
intimidating LDS students into silence and conformity by threatening to withdraw an
endorsement, even when the students conduct does not violate the BYU Honor Code. Bishops,
as church officials devoted to church policy, have inherent conflicts of interest to decide a
students good standing and whether or not that student graduates. This conflict extends to
29
stake presidents to whom LDS bishops report and who are thus responsible for deciding
withdrawal appeals for LDS students. (A stake in the LDS Church organization is roughly
equivalent to a Catholic diocese, though usually smaller in area, and normally consists of five to
seven wards or local congregations.)
The Honor Code does, however, reference a non-ecclesiastical appeal process (emphasis
added):
In unusual circumstances, however, a student may petition the Dean of
Students Office to allow an exception to the ecclesiastical endorsement
requirement.
...
When considering the petition, the Dean of Students will focus not on the
merits of the ecclesiastical leaders decision to withdraw the endorsement
but instead on whether the student has demonstrated sufficiently
compelling grounds to warrant an exception to the universitys
ecclesiastical endorsement requirement.
The Dean of Students decision regarding the petition will be reviewed by the
Vice President of Student Life if requested by the student. The decision by
the Vice President of Student Life is final.
In order for an exception to the appeals process to be successful, a student in unusual
circumstances must demonstrate sufficiently compelling grounds to warrant an exception to
the universitys ecclesiastical endorsement requirement. No guidance is given on what would
constitute either sufficiently compelling grounds or unusual circumstances. Because there
are no available records on exception requests, students have no way to know whether those
requests are ever successful, and if so, what determines success. The ecclesiastical leader is not
required to explain or document the basis for the withdrawal. No advocate is assigned to the
student, and the dean of students ultimately decides a students future based on factors other than
whether the endorsement withdrawal was justified. This violates the students due process
expectation that appeals are decided on the merits: i.e. whether or not the student actually
violated the Honor Code. This also violates the students due process expectation to know the
alleged basis for the withdrawal.
Furthermore, the vast majority of BYU officials, including the vice president of student life
and dean of students, are LDS and could also lose their jobs if their own ecclesiastical leaders
take action against them for, in their church leaders opinions, reversing the proper withdrawal of
an ecclesiastical endorsement. In the tightly networked LDS Church, such action could also risk
the school officials social relationships, church status, career, and even marriage. A stake
president whose decision was reversed by the dean of students could simply contact the deans
bishop and ask the bishop to pressure the dean to uphold the withdrawal. Additionally,
overturning a bishop or stake presidents decision contradicts the decision of a ranking official in
30
the deans own church. Thus, the dean and vice president of student life also subject to an
inherent conflict of interest between their standing in the church and continued employment and
their responsibility to treat students with due process fairness and equal protection mandated by
the ABA Standards.
Because appeal decisions are made by conflicted parties, and because withdrawal decisions
are made by conflicted parties based on unpublished criteria, BYU Law violates 308(b)s
requirement to adhere to written due process policies on adverse good standing and graduation
decisions.
Because the BYU Honor Code Office can unilaterally remove a BYU Law students
good standing, and takes adverse action on a students good standing based on
hearsay and without specifying misconduct, it violates due process expectations
In addition to endorsement withdrawals, BYU Law students are subject to sanctions
imposed independently by the BYU Honor Code Office71:
The university, at its discretion, may choose to investigate reported or
suspected Honor Code violations. This investigation is separate from any
civil, criminal, or ecclesiastical proceedings.
For example, Scott72 a recent student received an e-mail shortly before graduating
that stated:
It has come to the attention of the Honor Code Office that you may not be in
good Honor Code standing and therefore ineligible to graduate. As a result
the University is holding your graduation in abeyance pending resolution of
this concern.
He subsequently learned that a fellow student had reported him to the Honor Code Office in
response to Facebook communication. The student reporting Scott to the Honor Code Office
provided content from Scotts personal Facebook Web page, and an Honor Code Office official
decided that content was disrespectful. Scott was placed on Honor Code Probation as a result.
Importantly, the adverse action was executed before informing Scott of the basis for the action,
and before Scott had an opportunity to challenge or even review the allegations against him. This
is consistent with the Honor Codes explicit policy73:
The Honor Code Office also reserves the right to place a hold on the record
of any student based on reports of student misconduct prior to notifying the
student.
A similar experience was reported by BYU Law student Tasha McCarty74:
While attending BYU Law, I was placed on Honor Code Probation. The
Honor Code Office informed me that the basis for the probation was
information communicated to them in a telephone call, but did not tell me the
name of informant.
In order to be removed from Honor Code Probation, I had to meet with an
Honor Code Counselor, meet with my ecclesiastic leader (bishop, since I was
31
LDS), read religious articles, and submit written reports over the course of a
semester. At no point in the process was a BYU Law administrator
empowered to make a decision in the process.
In Ms. McCartys example, she later discovered that the information communicated to the
Honor Code Office was based on something Ms. McCarty had said to the informant, rather than
conduct the informant had witnessed.
In these examples, one student was placed on Honor Code Probation based on hearsay, both
were denied any chance to confront witnesses against them, one was not told of the basis for
adverse action, and both were placed on Honor Code Probation before they could challenge the
evidence against them. All these factors violate due process expectations.
The Honor Code Office also enforces rules that are maintained in a secret binder that is not
accessible to students. To illustrate: Sarah attended a dance club with her friend Gina75 one
evening. Later that night, Gina consumed alcohol, which was reported to the Honor Code Office.
The Honor Code Office summoned Sarah to give an account of the evenings events, which
Sarah provided. Sarah describes what happened next76:
After giving my statement, I was then told by the honor code office employee that even
though I probably thought I was only coming in to give them a statement, I was actually
getting in trouble, too.
Thats when it came out The binder. The woman pulled out a binder containing what I
presume to be the full honor code. She turned to a section entitled Alcohol, other where
she read a paragraph essentially stating that is against the honor code to even be present at
bars or clubs, regardless of if you are drinking alcohol. Because I had been at the dance club
that night with my friend, I was technically breaking the honor code even though I wasnt
drinking or doing anything else that was inappropriate.
In addition to violating 205s requirement of notice, enforcing the set of unpublished rules
contained in this secret binder violates due process expectations.
Additionally, the Honor Code Office process document (1) allows for investigations based
on anonymous reports, (2) states No attempt will be made to apply technical rules of evidence,
and (3) bases decisions on a preponderance of the information.77 Depending on the standard
applied, all arguably violate due process expectations.
Ms. McCartys account shows that BYU Law administrators have no oversight of this
process and must submit to all actions by the BYU Honor Code Office, which has no obligation
to comply with ABA Standards. BYU Law can never override the decisions of a students bishop
or the Honor Code Office, with the result that BYU Law students good standing and ability to
remain enrolled and graduate are ultimately at the mercy of persons outside the law school with
no obligation to honor law school policies or procedures.
32
As demonstrated, the Honor Code Offices practices violate due process expectations. By
subjecting BYU Law students to this enforcement agency, BYU Law fails to comply with
308(b).
By subjecting BYU Law students to the good standing and dismissal standards of the BYU
Honor Code, BYU Law adheres to unsound academic standards in violation of 308(a)
Under Standard 308, BYU Law is obligated to publish and adhere to sound academic
standards for good standing, graduation, and dismissal.
Standard 308(a) states:
(a) A law school shall adopt, publish, and adhere to sound academic
standards, including those for good standing, academic integrity, graduation,
and dismissal.
As shown above, BYU Law students can be dismissed and lose their good standing for
violating the BYU Honor Code. I have discussed this reality with a law professor at the
American Association of University Professors (AAUP). The AAUP maintains Brigham
Young University on its Censure List, where it has remained for more than a decade78. The
AAUP explanation for a university to be placed on this Censure List:
Investigations by the American Association of University Professors of the

administrations of the institutions listed below show that, as evidenced by a past
violation, they are not observing the generally recognized principles of academic freedom
and tenure approved by this Association, the Association of American Colleges and
Universities, and more than two hundred other professional and educational organizations
which have endorsed the 1940 Statement of Principles on Academic Freedom and
Tenure.
The list contains only administrations which are still under censure (many others have
been removed from the list after improving their practices and procedures).
This list is published for the purpose of informing Association members, the profession
at large, and the public that unsatisfactory conditions of academic freedom and tenure
have been found to prevail at these institutions.
As already shown, many Honor Code Office policies are not academic in nature, violate
human rights and due process expectations, violate fundamental rights under the U.S.
Constitution, or burden academic freedom. Examples include:
Dismissing those who disaffiliate from the LDS Church.

Dismissing LDS students who marry a partner of the same sex.
Directing university-contracted landlords to evict LDS students that disaffiliate.
Unaccountable bishops unilaterally and arbitrarily triggering dismissal.
These requirements do not fit the description of sound academic standards, and by
subjecting BYU Law students to them, BYU Law violates Standard 308(a).
33
C. BYU Law fails to disclose the complete BYU Honor Code,

its academic standards, and graduation requirements.
BYU Law is obligated to provide academic advising that effectively communicates the
schools academic standards and graduation requirements. Standard 309(a) states:
(a) A law school shall provide academic advising for students that
communicates effectively the schools academic standards and graduation
requirements, and that provides guidance on course selection.
As shown, BYU Law students must comply with the BYU Honor Code to retain good
standing and graduate. Since the BYU Honor Code specifically includes an Academic Honesty
Policy79 and the Standards that must be followed to retain good standing and graduate, BYU Law
should link to or include those specific policies to effectively communicate them. BYU Law
does not do this.
34
BYU Laws Advisement page80 neither mentions nor links to the BYU Honor Code:
The closest reference is the Policies and Procedures document81, which mentions the BYU Code of
Honor and the University Honor Code, but does not provide a URL or the actual content of the referenced
codes, making it unclear what exactly they refer to and the specific obligations the students are
consequently subject to. Law students have no direct way to know what graduation requirements and
academic standards they are subject to under the BYU Honor Code.
BYU Law does provide relevant guidance in its Academic Standards content,82 such as Academic
dishonesty is grounds for suspension or expulsion. It also discusses academic misconduct in its policies
document83. However, these sources do not communicate the additional obligations BYU Law students
have under the BYU Honor Code and its associated Academic Honesty Policy.
By failing to either link to or include the content of the BYU Honor Code on its advisement page (or
indeed anywhere on the BYU Law site), BYU Law violates 309(a).
35
D. BYU Law violates ABA Standard 405(b) by failing to announce and

establish an academic freedom policy, and by outsourcing academic
freedom regulation to untrained and conflicted LDS Church leaders.
BYU Law operates under broad, inconsistent, unestablished, and unannounced restrictions
on academic freedom, in violation of Standard 405(b), which states:
(b) A law school shall have an established and announced policy with respect
to academic freedom and tenure.
BYU Law does not have an announced policy
Research yields no academic freedom and tenure policy established or announced by BYU
Law. Searches for academic freedom and tenure in the law schools Policies and
Procedures July 2015 document84 produced no results. Similar searches on the BYU Law site85
also failed to find an academic freedom and tenure policy. This arguably violates the requirement
to have an established and announced policy relative to academic freedom and tenure, absent
language adopting an academic freedom policy established by some other body.
BYU Law does not have an established academic freedom policy
Even if BYU Law does have such a policy, it is effectively undermined because the
gatekeepers of academic freedom are, by and large, LDS bishops (because most BYU Law
faculty and students are LDS86). There is no evidence that LDS bishops are trained in applying
any academic freedom policy (for instance, the BYU Academic Freedom Policy87) that applies to
the BYU Law community, or even told of its existence. No academic freedom policy is
referenced or included in the ecclesiastical endorsement form, the Student Commitment Form, or
the version of the Honor Code BYU presents in its law school application.
Even if some atypical LDS bishops know about or have any experience applying an
academic freedom policy, their conflict of interest makes them unfit to regulate academic
freedom, which they do by withdrawing or threatening to withdraw ecclesiastical endorsements.
As shown above, these withdrawals are arbitrary, and the bases for withdrawals unrecorded and
unreviewable. Because withdrawal of ecclesiastical endorsement results in dismissal from school
and is unreviewable, threats to withdraw are usually sufficient to compel whatever compliance a
bishop wants: most law students are understandably unwilling to risk dismissal and the resulting
severe disruption to their lives, academic progress, and careers88. These threats also go
undocumented; the resulting lack of transparency and reporting makes it extremely difficult for
BYU Law to know when an academic freedom policy is being adhered to, and when it is being
abused.
Academic freedom applies to graduate students as well as professors
Academic freedom is not merely the application of general freedom of speech in an
academic setting. Douglas Laycock writes:
36
The best-reasoned accounts of academic freedom insist that academic freedom is not
equivalent to general freedom of speech or thought. Rather, the special protections of
academic freedom are justified by a professors special expertise in an academic
discipline.
Though academic freedom is traditionally applied in the context of professors, there is no
reason that it cannot be applied in principle to graduate students as well. No doubt there are
many talented graduate students that are more expert in a given academic discipline than the
least expert of hired professors in that discipline.
Applying this logic to my experience clearly demonstrates the lack of an established
academic freedom policy at BYU Law. During my 3L year, I wrote a book at the intersection of
marriage law, Mormonism, sexual orientation science, and constitutional law. By this time I had
a bachelors degree in biology, thousands of hours of religious instruction and study (including a
two year LDS proselyting mission and numerous religion courses at BYU), completed numerous
courses in the social sciences, and finished most of the coursework for my Master of Public
Administration and law degrees. This book, Homosexuality: A Straight BYU Students
Perspective, required the very best of my training in all these disciplines, and was by far the most
intensely researched and significant academic production of my life. Additionally, the issue of
homosexuality and same-sex marriage is of paramount importance to my LDS generation: how
we handle it will have substantial impacts on LDS credibility for decades to come, to say nothing
of the human impacts to LGBT Mormons and their families.
Because of my training, I was uniquely positioned to speak on this issue at the intersection
of marriage law, Mormonism, sexual orientation science, and constitutional law. Deeply
understanding the science of sexual orientation is vital; robust legal reasoning skills are
necessary to navigate the relevant constitutional and marriage law; intimate knowledge of the
scriptural and theological constructions of gender, sexuality, and marriage is indispensable.
Rather than protecting my academic speech, however, my bishop gave me a choice: avoid any
appearance of supporting same-sex marriage legalization, or face dismissal from my joint degree
program mere months from graduation. Under this duress, I chose to censor my writing in order
to graduate. To this day, my book sits on many library and home bookshelves, bereft of what I
consider to be its most important conclusion: same-sex marriage is protected by the constitution
and should be legalized.
The academic freedom of faculty is burdened
This difficulty is even more pronounced in the case of LDS faculty at BYU Law. They are
required to hold a temple recommend, a bi-annual certification from their own bishop and
stake president that they are fully compliant with LDS teachings and standards, including the
payment of an annual 10-percent tithe on gross income and avoiding affiliation with any group
that teaches, advocates, or practices beliefs that are contrary to or oppose those accepted by the
LDS Church. If an LDS faculty member fails to meet these and other requirements (none of
37
which have anything to do with professional qualifications as a law professor) and thus fails to
qualify for a temple recommend, for that reason alone they can lose their job at BYU Law89:
The Ecclesiastical Clearance Office (ECO) performs functions related to
continued employment eligibility to work at BYU. It is a condition of
employment that all employees act in accordance with university policies and
the Church Educational System Honor Code, including the Dress and
Grooming Standards, and refrain from behavior or expression that seriously
and adversely affects the university mission or The Church of Jesus Christ of
Latter-day Saints. (www.honorcode.byu.edu: Church Educational System
Honor Code.)
LDS employees also accept, as a condition of employment, the standards of
conduct consistent with qualifying for temple privileges. All employees are
expected to be role models of a life that combines spiritual values and
personal integrity, and to conduct their work in a professional manner
consistent with the values espoused by the university and the Church. The
university regularly contacts ecclesiastical leaders concerning the temple
eligibility of all LDS employees.
In order to be temple eligible, LDS faculty at BYU Law must correctly answer no to this
question, as well as persuade his or her bishop to sign the faculty members temple recommend:
Do you affiliate with any group or individual whose teachings or practices
are contrary to or oppose those accepted by The Church of Jesus Christ of
Latter-day Saints, or do you sympathize with the precepts of any such group
or individual?90
This was the clause my bishop cited when he threatened to withdraw my endorsement if I
publicly expressed support for same-sex marriage. He claimed that expressing support for samesex marriage would be sympathizing with the precepts of same-sex couples, whose marriages
are contrary to the teachings of the Church. Under this sweeping standard, it is very difficult for
LDS faculty at BYU Law to know what positions they can safely express without risking
termination, because almost any controversial position could be taken as evidence of sympathy
for a precept of a group that has at least one teaching or practice contrary to what is accepted by
the LDS Church. Even this difficulty is exacerbated, since individual bishops interpret what is
accepted by the LDS Church differently, as evidenced by my bishops departure from the
articulation of numerous ranking LDS authorities that members may safely support same-sex
marriage.
Furthermore, this standard imposes a conflict on LDS law faculty who have taken an oath to
uphold the U.S. Constitution; who have promised to be honest; or who are members of the
Federal Bar, Supreme Court Bar, or certain state bars that affirm the constitutionality of samesex marriage. On the one hand, in order to remain employed, such faculty are obliged to avoid
affiliating or sympathizing with groups like the Supreme Court, whose affirmation of same-sex
marriage is explicitly opposed by the LDS Church91. On the other hand, these same faculty are
obligated to be honest (including in answering this question), and to obey and defend the
Constitution of the United States.
38
In addition to the above, bishops enjoy broad discretion in granting or withholding temple
eligibility there is nothing to prevent a bishop from imposing his own private, unpublished
temple eligibility criteria against a law faculty member in his ward, resulting in the type of
inconsistent and unpredictable outcomes documented earlier relative to ecclesiastical
endorsements.
An academic freedom policy is not established when it is contravened in practice
Under 405(b), an academic freedom policy must not only be announced it must also be
established. This implies a reasonable level of consistent enforcement of the policy: subjecting
students, faculty, and staff to a second policy (the Honor Code) whose enforcement contradicts
and overcomes the academic freedom policy, results in establishing the Honor Codes version of
academic freedom instead. If the majority of law professors (i.e. those that are LDS) are
vulnerable to a collateral attack on their academic freedom via a bishop's withdrawal or refusal to
issue a temple recommend resulting in their ineligibility for employment, then that academic
freedom policy cannot be said to be established. In other words, a policy that is announced in
word but contravened in practice does not meet the standard.
Because BYU Law does not publish an academic freedom policy, and because it outsources
the regulation of academic freedom of faculty, students, and staff to untrained and conflicted
ecclesiastical leaders, it violates 405(b).
E. BYU Law violates ABA Standard 509(a) by providing incomplete,

inaccurate, and misleading information about its policies
to students and applicants.
BYU Law violates ABA Standard 509(a) by providing incomplete, inaccurate, and
misleading information about its policies to students and applicants. Standard 509(a) states:
(a) All information that a law school reports, publicizes, or distributes shall
be complete, accurate and not misleading to a reasonable law school student
or applicant. A law school shall use due diligence in obtaining and verifying
such information. Violations of these obligations may result in sanctions
under Rule 16 of the Rules of Procedure for Approval of Law Schools.
Completeness
BYU Law does not publish its complete admission requirements, failing to inform potential
students in its admissions brochure92, acceptance criteria93, and application form that former
Mormons are ineligible.
Moreover, the requirements for admission, enrollment maintenance, and graduation are
incomplete because each requires good Honor Code standing, and that depends on the arbitrary
and capricious standards of untrained and unaccountable ecclesiastical leaders who are neither
employed by BYU Law nor subject to oversight from BYU Law school officials.
39
Accuracy
Religious discrimination
BYU Law falsely claims that it does not discriminate on the basis of religion94:
As a law school accredited by the American Bar Association* (ABA), and as
a member of the Association of American Law Schools (AALS), the J.
Reuben Clark Law School provides equal opportunity in legal education for
all persons, including faculty and employees with respect to hiring,
continuation, promotion and continuing faculty status, applicants for
admission, enrolled students, and graduates, without discrimination or
segregation on the basis of race, color, religion, national origin, gender,
sexual orientation, age, or disability.
This attestation is inconsistent with the actual policy at BYU Law. On October 5th, 2015,
prominent religious scholar Dr. Mark Juergensmeyer boycotted a religious freedom conference
held at BYU Law, in protest over BYUs disaffiliation policy. He wrote95:
I have decided that it would be hypocritical of me to participate in a conference in which
the issue of religious liberty is paramount when the institution sponsoring it
fundamentally violates this principle in its policies towards Mormon students. As I
understand it, non-Mormons are allowed to enroll in BYU, and they are welcome to
convert to the Mormon faith if they wish, but if Mormon students change their religious
affiliation they lose their scholarship, their campus housing and jobs, and are expelled
from school even if they are months away from graduation.
On October 7th, Dr. Juergensmeyer added96:
I received dozens of emails from present and former Mormon students at BYU
supporting my position, some of them telling heartbreaking stories about how their
careers were ruined by being expelled for their beliefs just months before graduation.
In response to Dr. Juergensmeyers boycott, BYU issued two statements. The first said97:
A student who is a member of the Church of Jesus Christ of Latter-day Saints who
formally rejects his or her beliefs can no longer be in good honor code standing.
The second statement confirmed the first98:
Because of covenants and commitments members of the LDS Church have made, they
can no longer remain in good honor code standing if they chose to formally disaffiliate
from the LDS Church. All students must be in good honor code standing to graduate, to
receive a diploma and to have the degree posted.
In addition, because bishops often withdraw or threaten to withdraw endorsements on the
basis of students expressions of doubt (or failures to affirm belief) in LDS teachings99, BYU
Law discriminates based on expression of belief100 with respect to religion, as well as on
religious affiliation.
40
Discrimination based on expression of religious belief is not limited to students. As detailed

earlier, LDS faculty at BYU Law must be temple eligible in order to retain continuing faculty
status. To be temple eligible, LDS faculty at BYU Law must also correctly answer yes to the
following question101:
Do you believe in God, the Eternal Father, in his Son, Jesus Christ, and in the
Holy Ghost; and do you have a firm testimony of the restored gospel?
Thus, any LDS faculty at BYU Law whose beliefs change from orthodox Mormonism must
then choose between lying about their religious views and losing their job by being honest. This
conflicts with ABA Interpretation 205-5:
The denial by a law school of employment to a qualified individual is treated
as made upon the basis of race, color, religion, national origin, gender, sexual
orientation, age, or disability if the basis of denial relied upon is an
employment policy of the school that is intended to prevent the employment
of individuals on the basis of race, color, religion, national origin, gender,
sexual orientation, age, or disability though not purporting to do so.
In addition, and per LDS policy102, LDS faculty or staff who join a different church are
guilty of apostasy, which results in formal church discipline which, in turn, under the Honor
Code means losing their job:
[I]f a member formally joins another church and advocates its teachings,
excommunication or name removal may be necessary if formal membership
in the other church is not ended after counseling and encouragement.
Joining another church is a fundamental exercise of religious freedom, as is expressing a
religious belief or disaffiliating. Thus, BYU Laws claim that it does not discriminate on the
basis of religion is false.
Sexual orientation
BYU Law also falsely claims that it does not discriminate on the basis of sexual orientation.
Scholars Douglas Laycock, Anthony Picarello, and Robin Wilson pointed out that the prohibition
on precluding admission or retention on the basis of sexual orientation applies to religious law
schools. Referring to Standard 205, they wrote103:
It would not entirely address the problems facing religious law schools
because it does not purport to permit other decisions such as a refusal to
admit persons in same-sex relationships even if exclusion is mandated by
religious teaching.
The decisions faced here are very similar. First, BYU Law requires students and staff to
conform to the BYU Honor Code, which forbids same-sex relationships on penalty of dismissal,
thus discriminating in retention on the basis of sexual orientation. Second, since a gay LDS
member who married a same-sex partner is excommunicated, he is ineligible for admission and
thus precluded under the disaffiliation policy. Third, a gay LDS student or faculty who marries a
same-sex partner while attending will similarly be excommunicated, resulting in automatic
41
dismissal under the BYU Honor Code, and thus preclusion from retention on the basis of sexual
orientation. Same-sex couples are also banned from university housing earmarked for legally
married couples104.
The prohibition on homosexual behavior of any kind, as well as the effective ban on samesex marriage, imposes a substantial burden on homosexual applicants and students. Likewise,
when applied to current faculty, staff, and students, even if it affects only a portion of that
population, the prohibition constitutes sexual orientation discrimination, violates 205(b), and
contradicts BYU Laws nondiscrimination attestation.
Gender discrimination
BYU Laws claim not to discriminate on the basis of gender with respect to hiring,
continuation, promotion and continuing faculty status is similarly false. As shown above, LDS
faculty must have an active temple recommend. However, in its Church Members Who Have
Committed a Serious Transgression section, Handbook 1: Stake Presidents and Bishops clearly
states105:
A member who has undergone an elective transsexual operation may not
receive a temple recommend.
Transgendered LDS faculty who undergo sex-reassignment surgery are prima facie unable
to receive a temple recommend, and thus to continue employment. Because sex-reassignment
surgery is closely connected to gender identify for many transgender persons, this imposes a
burden on such persons that amounts to gender discrimination.
Misleading
In its law school application, BYU Law presented an incomplete version of the BYU Honor
Code that (1) was not readily available online, (2) was less than half the length of the official
one, and (3) omitted material BYU Honor Code content.
Conclusion
The aim of this complaint is to bring to the attention of the Council, the Committee, and the
Managing Director facts and allegations that may indicate that an approved law school is
operating its program of legal education out of compliance with the Standards.106 If there is
further action I can take or documentation I can provide to further this aim, please contact me.
42
Appendix
Letter from Professor RonNell Jones
Letter received in response to the complaint sent to BYU Law.
43
Current BYU Law students and professors risk dismissal and termination for challenging
any part of the BYU Honor Code. BYU President Cecil Samuelson stated that criticizing BYU
Board decisions (which include Honor Code content), itself, violates the Honor Code107. This is
not a hypothetical risk: earlier in 2015 the Honor Code Office placed Scott108 on Honor Code
Probation for criticizing, on his Facebook wall, BYU spokesperson Carri Jenkinss defense of
the BYU Honor Codes disaffiliation policy. Current students and professors are not safe to raise
their concerns: doing so risks retaliation via Honor Code enforcement mechanisms.
By requiring a complaint from a current law student, BYU Law imposes a capable of
repetition, yet evading review situation current students risk dismissal for challenging the
disaffiliation policy, for example, but are barred from challenging the policy after they graduate.
Any students that actually disaffiliate are dismissed, and thus are no longer eligible to challenge
the policy.
FreeBYU represents many current students and faculty, including concerned current
students and professors at BYU Law. These current students and faculty have reached out to
FreeBYU with these concerns, which they do not feel safe raising themselves, and so we are
raising this complaint on their behalf.
44
BYU Honor Code

Retrieved 15 August 2015 from http://registrar.byu.edu/catalog/20142015ucat/GeneralInfo/HonorCode.php
45
46
47
48
49
BYU Honor Code (BYU Law application version)
50
51
BYU Honor Code law school application version Google search

On August 16, 2015, I Googled which they currently reside, or (3) the non-denominational
BYU chaplain. Requirements: Whether on or off campus and, a phrase unique to the law school
application version. I see only two search results: neither source is an official BYU or BYU Law
site.
52
By contrast, a search on the same day for Brigham Young University Honor Code, the
exact phrase included in BYU Laws official policy, returns numerous results that link to the
official 2,367-word version maintained by the policy owner, BYU:
53
Ecclesiastical Endorsement Form

From the BYU Law application
54
55
Student Commitment Form

The Student Commitment Form is part of the BYU Law school application, and includes
four parts. The first is the header (immediately below); the second is the shortened version of the
Honor Code included above; the third is the Ecclesiastical Endorsement form included above.
The fourth is the Deans Certification, which I include here as well.
Header
Deans Certification
56
57
The student commitment form is referenced on BYU Laws Apply Now page (screenshot
taken 12 September 2015):
The student commitment form isnt linked to on the Apply Now page, but is available on the
BYU site (screenshot taken 12 September 2015):
and is stored at
(http://www.law2.byu.edu/page/categories/admissions_process/documents/SC_LSapplication
12.pdf).
58
Law school application: religious affiliation questions

BYU Laws online application does not ask whether the applicant is a former member of the
LDS Church (screenshot taken 12 September 2015):
59
Complaints Concerning the Program of Legal Education

This is the documented procedure from http://www.law2.byu.edu/site/currentstudents/complaints-concerning-program-legal-education, retrieved 30 August 2015
Procedure for Student Complaints Regarding Law School Compliance with ABA
Standards
Note: The law school has in place a number of avenues for students to raise concerns or
make complaints on issues related to the law school experience. The procedures described below
should be used when a complaint directly implicates the law schools program of legal education
and compliance with specific ABA accreditation standards. Other concerns and complaints
should be raised initially with the relevant faculty advisor, instructor, or administrator and
pursued through the procedures set forth in the universitys and law schools official Policies &
Procedures.
1. The law school is accredited by the American Bar Association. The ABA Standards for
the Approval of Law Schools can be accessed on the American Bar Associations
webpage, located at this link:
http://www.americanbar.org/groups/legal_education/resources/standards.html.
The Council of the Section of Legal Education and Admission to the Bar of the ABA may be
contacted at 321 N. Clark Street, 21st Floor, Chicago, IL 60654; Phone: 312.988.6738;
Fax: 312.988.5681; legaled@americanbar.org.
2. Any student who alleges a problem that directly implicates the law schools program of
legal education and compliance with the ABAs Accreditation Standards should file a
written complaint with the Associate Dean for Research and Academic Affairs. The
written complaint must a) identify the problem in sufficient detail to permit the Associate
Dean for Research and Academic Affairs to investigate the matter, including the specific
Accreditation Standard(s) at issue, and b) provide the students name, home and email
addresses, and phone number.
3. Within thirty days after the Associate Dean for Research and Academic Affairs receives a
written complaint, he or she shall respond to the students complaint in writing and, if
applicable, advise the student of any action the law school is taking to address the matter
or any further investigation into the matter.
4. Within ten days of being advised of any action the law school is taking to address the
matter, the student may appeal that decision to the Dean of the law school. The decision
of the Dean shall be final.
Law School Policies and Procedures, I.R.
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Mr. Quackenbushs Supporting Documentation

Selections from Application (applied as a Roman Catholic with no Honor Code violations)
Acceptance Letter (accepted as a Roman Catholic)
61
62
Email Confirming Commitment to Attend (confirmed attendance as a Roman Catholic)
(continued on next page)
63
64
Withdrawal Letter (pressured to withdraw after BYU Law categorized him as former LDS)
65
Mr. Penfolds Supporting Documentation

Honor Code Office dismissal letter
Notably, there is no path for Mr. Penfold to regain his good standing documented in the
letter, except to obtain his LDS bishops clearance. Per the ecclesiastical endorsement
instructions, Bishop Warner should not clear Mr. Penfold because Mr. Penfold disaffiliated.
Additionally, the Honor Code states that former Mormons are ineligible for the mandatory
ecclesiastical endorsement: thus, there is no way for Mr. Penfold to gain readmission.
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67
Notice to Vacate
Signed Statement
Signature via Adobe Document Cloud eSign services; Curtis can be reached at
cvpenfold@gmail.com.
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Ms. McCartys Signed Statement
Signature via Adobe Document Cloud eSign services; Ms. McCarty can be reached at
trollin2@byulaw.net.
LDS Churchs Opposition to Supreme Courts Definition of Marriage

The LDS Church opposes the position of the Supreme Court of the United States. The
official publication, The Divine Institution of Marriage, describes this opposition to same-sex
marriage109:
One purpose of this document is to reaffirm the Churchs declaration that
marriage is the lawful union of a man and a woman.
Another purpose is to reaffirm that the Church has a single, undeviating
standard of sexual morality: intimate relations are acceptable to God only
between a husband and a wife who are united in the bonds of matrimony.
A third purpose is to set forth the Church's reasons for defending marriage
between a man and a woman as an issue of moral imperative. The Church's
opposition to same-sex marriage derives from its doctrine and teachings, as
well as from its concern about consequences of same-sex marriage on
religious freedom, society, families, and children.
This opposition is reflected in the LDS practice of excommunicating members who marry a
same-sex partner. Handbook 1: Bishops and Stake Presidents, 6.7.2, classifies homosexual
relations as a serious transgression for which formal church discipline may be necessary. In
6.10.6, it further states that those who engage in homosexual relations are subject to stern
Church discipline. LDS bishops and stake presidents accordingly discipline members who
marry a same-sex partner; for example, I supported just such a couple in Wyoming who married
legally in Connecticut and were consequently summoned to an excommunication hearing.
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In response to the Obergefell110 decision, the LDS Church reaffirmed its definition of the
law of chastity111, which is applicable to all members of the university community112, rather
than just the LDS members of that community:
Changes in the civil law do not, indeed cannot, change the moral law that
God has established. God expects us to uphold and keep His commandments
regardless of divergent opinions or trends in society. His law of chastity is
clear: sexual relations are proper only between a man and a woman who are
legally and lawfully wedded as husband and wife. We invite all to review and
understand the doctrine contained in The Family: A Proclamation to the
World.
In its Same-Gender Marriages section, Handbook 1: Stake Presidents and Bishops113
further clarifies:
Sexual relations are proper only between a man and a woman who are legally and
lawfully wedded as husband and wife. Any other sexual relations, including those
between persons of the same gender, are sinful and undermine the divinely created
institution of the family. The Church accordingly affirms defining marriage as the legal
and lawful union between a man and a woman.
Disaffiliation Policy Not Protected by First Amendment

BYU Laws strongest constitutional claim to defend its policy of burdening individual
liberties by dismissing, terminating, and evicting those who leave the LDS Church is to claim
church autonomy. Church autonomy cannot, however, overcome individual liberty when (1) it
deprives individuals of things of value, (2) its victims did not voluntarily affiliate with the
church, or (3) the church autonomy is not threated by a state actor. All three are the case here.
Depriving individuals of things of value
Douglas Laycock wrote114:
The great protection for the losers of internal church disputes is structural: religion is
a wholly voluntary and radically pluralistic activity in this country. What made the
Catholic Church a threat to individual liberty in the Middle Ages was its monopoly of
religious authority and its power to invoke secular authority. The Religion Clauses
forever ended that threat in this country. Because the state has no power to punish heresy,
the Church has no power over the life, liberty, or property of its dissidents.
The remarkable religious pluralism fostered by the Religion Clauses sharply limits
even the incidental consequences of church discipline. There are hundreds of other
churches and thousands of other employers. A church has no monopoly over any thing of
value except those internal things the state cannot coerce, such as the sacraments and the
churchs imprimatur. The value of these things is religious; the state cannot award them
because its attempt to do so desanctifies them.
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This reasoning does not apply when a student at BYU Law is dismissed for changing her
religion, because BYU Law is not a church: it is, instead, an accredited law school. BYU Law
also has a monopoly over a thing of critical value to these students: their interest in uninterrupted
study. Progress toward a secular graduate degree at an accredited institution is a thing of value
substantial economic value, given its primacy to a successful career in the law. Consider the
comparable experience of Muriel115:
I chose to attend graduate school at BYU because I was excited about its rigorous
academics, awesome student opportunities, and beautiful campus. [It was] the spring
when my crisis of faith occurred. In the fall, I tried to continue on with my studies at
BYU, but I could not in good conscience pretend to profess belief in something I no
longer believed in. If I could have been able to freely leave the LDS Church and pay nonLDS tuition, I would have been able to continue. However, since I knew this was against
BYU policy, I ended up voluntarily leaving with only a year left of my Masters. This was
a hard decision for me it set me back several years financially and career wise.
Students that disaffiliate suffer the same fate, except that their exodus is imposed rather than
voluntary. Crucially, Masters theses and doctoral dissertations do not transfer; students in these
programs have to completely start over. Students deep into other graduate programs are
particularly vulnerable: transferring credits depends largely on the policy of the receiving
institution. While a joint JD/MPA student in my final year, I called several programs to identify
how many of the 40 MPA credits I had earned thus far would be accepted. The best I could find
was an institution that accepted six credits.
BYU Law students are similarly disadvantaged: many law schools require transfer students
to complete two years of study at the law school transferred to, or impose a cap on accepted
transfer credits (if they accept transfer students at all). An LDS 3L at BYU Law who loses faith
in Mormonism must then choose between feigning faithfulness on the one hand, and completing
an additional two years of law school with a delay in graduation of between two and three years
(depending on when during the 3L year she changes religion, and how accommodating the
receiving the law school is). Hard-won positions in Moot Court, Law Review, etc. would also be
forfeited, in addition to all the other personal, social, academic, and financial impacts caused by
transferring to another law school.
Also, students who seek to transfer or pursue additional degrees encounter obstacles because
they were dismissed for violating the honor code. FreeBYU is aware of a case where an
applicant was disqualified from a Ph.D. program because the program required disclosure of any
academic probation or honor code violations at previous institutions. The report noted that the
student had violated the BYU Honor Code, without reporting the detail that the Honor Code
violation was disaffiliation from the LDS Church.
These are exactly the kinds of monopolies on things of value that limit church autonomy.
BYU Law has power over students progress toward an accredited law degree: progress that is
either non-transferable, or costly-to-transfer (as measured by the forfeited credits, time, financial,
and other costs required in order to transfer). Students in these situations are at the mercy of the
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transfer policies of receiving institutions. Given the power it holds over the things of value of
these students, BYU Law is not privileged to assert its church autonomy to the detriment of the
constitutionally protected individual liberty of disaffiliates.
Voluntary affiliation
BYU Law is similarly unqualified to assert church autonomy to the detriment of individual
liberty because the individuals it harms through applying the Honor Code did not voluntarily
affiliate with the LDS Church. Again from Laycock116:
Whatever power a church has over its dissidents comes from their voluntary
affiliation with the church. If they want the things that only the church can grant, the
church has power over them to that extent
The voluntary nature of religious activity has always played a prominent role in
church autonomy cases. The Supreme Court has consistently said that individuals who
voluntarily affiliate themselves with a church do so on the churchs own terms: all who
join a church do so with implied consent to its government, to which they are bound
to submit. As long as membership is voluntary, church members need no protection
from their church. They have no constitutional right to demand that the church treat them
fairly. Rather, the Constitution protects both the church and individual believers from
government interference.
As noted above, the Honor Codes disaffiliation policy burdens only LDS students: there is
no prohibition against a non-LDS students conversion to another faith, or no faith. LDS law
students, however, are locked in due to a decision that, by and large, they made when eight years
old (most LDS applicants were raised in the LDS Church, and in keeping with LDS practice
became members at age eight by being baptized). BYU purports to hold these members to the
promises and commitments they made while in second grade117:
BYU spokeswoman Carri Jenkins acknowledged that Mormons who change faiths are
treated differently than those who enter as non-LDS. Nonmembers have not made
promises and commitments that a member of the church has, Jenkins says. A former
Mormon who decides to leave the church, distances themselves from those promises and
commitments. The result is that they are not eligible to attend BYU.
The practice of baptizing young children derives from LDS scripture, which identifies age
eight as the age of accountability118:
And their children shall be baptized for the remission of their sins when eight years old,
and receive the laying on of the hands (D&C 68:27).
It is inconsistent with Supreme Court precedent, however, to construe an act by such a
young child as constituting consent or voluntary affiliation. Again from Laycock119:
Voluntary affiliation with the group is the premise on which group autonomy depends. If
a church member is held in his church involuntarily, he retains all his civil rights
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The voluntariness principle is also relevant to cases involving young children. The
Courts tolerance of restrictions on free exercise to protect small children may in part
reflect doubts about the validity of their consent.
Many law students began their affiliation when they joined BYU as teenagers, by applying
and accepting admission offers while still attending high school. This casts doubt on the
voluntariness of their affiliation. Even if that affiliation is voluntary, however, it is necessary but
not sufficient to be burdened by the disaffiliation policy. Because the membership of these LDS
baptized children was not voluntary, and because BYU Laws disaffiliation policy explicitly
relies upon that act of affiliation, the Constitution protects their individual liberty, including the
freedom to convert without being trammeled by BYU Laws imposition of dismissal,
termination, and eviction.
The ABA is not a state actor
Claims of church autonomy are limited to defending against state action. BYU Law cannot
assert church autonomy as a defense against ABA accreditation standards, however: it is free to
operate its law school without ABA accreditation. Under the reasoning of NCAA v. Tarkanian,
488 U.S. 179 (1988), the ABA is simply not a state actor120.
Selected accounts evidencing the BYU environment relative to religious and

academic freedom
These six accounts illustrate the Honor Code process used by both BYU Law, and its parent
school, BYU. As documented above, Standard 201(d) requires that The policies of a university
that are applicable to a law school shall be consistent with the Standards.
This is a small sampling of hundreds of submissions; more are available upon request.
Name: John Barlow
Email Address: zppyjohn@yahoo.com
City, State: Orem, Utah
Do you believe that BYU gives full academic freedom to its students and faculty?
No. Freedom of research, belief, and attitude is limited to only those things that will still
allow you to remain a member of the LDS Church. Even scientific topics like evolution, plate
tectonics, and genetics are kind of a gray area. If a student/faculty member, distances themselves
enough from the church in their academic studies or personal life to fail to qualify for a temple
recommend or join another church they will be expelled, evicted, and in many ways
ruined.
Do you have a personal experience or story concerning academic freedom at BYU?
Yes, after many years of being a member of the church, I became somewhat disillusioned
and had been participating with the local Catholic congregation. I wished to be baptized, but
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even before this was completed, my LDS bishop was informed, my ecclesiastical endorsement
was revoked and I was not able to register for the next semester, obtain a transcript, or remain in
my apartment.
Do you have a personal experience where you felt that you couldnt speak honestly at
BYU about your opinions, scholarship, or academic experience?
It is a weird balancing act. I had several life-sciences classes as a pre-med student, where
genetics, evolution, and human-racial differences were pretty standard with the rest of the
Western world. However, there were several occasions when I was censured publicly by two
religion professors and my LDS bishop for discussing those scientific topics because they
conflicted with official church doctrine. It was difficult to figure out who you could talk to about
normal scientific topics and who you couldnt.
Do you have any other thoughts regarding the accreditation of BYU or your
experiences regarding BYU and its Honor Code?
Unfortunately, because there is an encouraged practice of tattling on your room-mates
(included in several public student addresses available on YouTube) it was almost impossible to
feel safe in my private life.
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Name: Dr. Lynn K. Wilder

Email Address: metotgma@gmail.com
City, State: Fort Myers, FL
The final section of the Honor Code that kicks students and professors out if they leave the
Mormon Church appears to violate the policy as stated.
A member of the LDS Church for 30 years, I was tenured faculty at BYU in the McKay
School of Education from 1999-2007. When I professed Biblical Christianity toward the end of
my time at BYU, a friend reached out to ask a member of the 12 apostles of the LDS Church if I
could stay at BYU. He said no, even if she is tenured. I found another job but lost salary, tenure,
and began again at a state university in another state. Id be honored to talk with the accrediting
body if necessary.
Do you have a personal experience or story where you felt that you couldnt speak
honestly at BYU about your opinions, scholarship, or academic experience?
I was paralyzed with fear to have any LDS friends or BYU colleagues find out I was seeking
my way out of the LDS Church. I would have lost my temple recommend and then my job.
Honestly, I did know this when I was hired.
We were placed on probation once in the McKay School of Education, maybe 2002 or 2003,
for not attending to matters of diversity. I would encourage the accrediting agency to pay close
attention to the commitment or lack thereof of diversity. When I taught diversity at BYU, I was
asked not to use the term social justice.
Name: Isaac Trumbo
Email Address: itbcn8.gmail.com
City, State: Barcelona
No. I was a student at BYU and had an excellent GPA. In my last semester I left the
Mormon faith as well as came out as a gay man. At that time, with a couple of required classes
left, they proceeded to excommunicate me and I had to drop out. This is something that MUST
change.
Yes, as I stated I was a student and robbed from my degree because of religion and sexual
orientation.
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I did not break the Honor Code, just came out as gay. This was enough for them to accuse
me of breaking the code.
Name: Bryce Johnson
Email Address: brycepj@gmail.com
City, State: Charlottesville, VA
Absolutely not.
1) Students organizations which discuss or publish views divergent from those of Church
leaders are intimidated, constrained, or shut down. (I know by personal experience)
2) Its well-known that faculty consensus can be overridden at any time by word from the
leadership. This occurred recently when the religious studies department was asked for its
opinion about restructuring the religious studies curriculum that must be completed by all
students. Faculty voted nearly unanimously against it, but the Board of Trustees moved ahead
with it anyway. I had a close friend whose father was a well-known tenured professor in the
social sciences. He often complained that BYU was the only university in the world where the
faculty can be overridden so quickly and quietly as they can be at BYU.
3) Because church membership is tied to school standing, students must be careful about
what they say, particularly if they no longer believe the Churchs teachings. This was true for me
during my final year at BYU, when I lost my faith.
I was Editor in Chief (as well as other positions) of the BYU Political Review. We sought to
promote open dialogue about important political issues on campus. We had a publication that we
distributed on-campus and a website.
Generic stories: I cant tell you how many times we were told by advisors that wed have to
remove an article from our upcoming issue because it would raise the hackles of church leaders
or The Administration. These were articles dealing with gender, race, homosexuality, religion,
marriage, and other issues church leaders have spoken out against. We had no trouble publishing
articles that sided with church teachings on these issues only articles that disagreed.
I was close friends with the people who started the BYU Student Review: BYUs first
independent student newspaper. The fact that a newspaper had to go off-campus and sell
advertisements to support themselves to write a lot of pretty tame articles for students once a
month? Come on.
Finally, I remember one day when I mentioned to our advisor that our website was starting
to get a lot of traffic. He didnt say anything then, but within a day, I was sitting in a meeting
with the Political Science department chair debating whether or not we should be allowed to
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have a website, and if we did, Why did we have to have a comments enabled? And Could we
delete comments or articles at a moments notice?. It was clear that these well-meaning
professors did not want to stick their necks out for us. They could get themselves into trouble if
we wrote something that seemed out of line.
Name: B.C.
Email Address: *removed*
City, State: Provo
An emphatic no. The university has a large body of unwritten positions that are not allowed
to be expressed by students or faculty publicly. It claims you can believe whatever you want, so
long as most views are kept private. It is not just a culture. It is institutionalized as policy and
executed by its employees.
I was required to take Book of Mormon classes, as all students who enter the university as
members of the LDS faith are. I had a professor whose only assignments were to submit written
testimonies of the Book of Mormon as we were reading it. While I often disagreed with the
statements the professor made throughout the semester, the worst part was knowing that my
grade depended on me writing papers professing beliefs I did not have. I did not have the ability
do this always and still live with myself. I did not turn in many of my assignments. On paper I
should have failed the class. However, the professor believed I was a devout member; he told me
so. Therefore he gave me a B. At least in this class, work was not valued. Only specific beliefs.
I feel the pressure to keep all of my views to myself all of the time. I know people who
havent and have been punished. There is no one story. I fear daily that my opinions will be
discovered by those I do not trust.
Yes. Last summer I shared my positions on feminism, race relations, gender equality, and
LBGT activism with a small number of friends and acquaintances. I was reported to the BYU
Honor Code for disrespect of the university. The Honor Code office itself asked for a list of
beliefs that I held concerning the historicity and accuracy of the truth claims of the LDS Church.
I was told a list of beliefs that if I had and shared with anyone would create problems for my
continued enrollment in the university. I was essentially warned in advance that my honest
answer would lead to either expulsion or, most likely, probation which strips me of my
scholarship in the grad program I enrolled in. I gave them the official story that they wanted to
hear. I felt required to forfeit my personal academic integrity in exchange for my degree. I would
gladly see BYU lose their accreditation even though I am currently enrolled in the university. I
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came to BYU because I was promised a top notch education that wasnt too costly. I deeply
regret coming here. I had to explore ideas by myself in private and have lived in fear of my
university due to the conclusions I have come to.
Name: Anonymous
BYUs religious eligibility policies demonstrably violate the Accreditation code, as well as
its own standards of religious freedoms. This should be closely examined by the review board.
While members of any other faith can change their faith declaration, renew their ecclesiastical
endorsement, and remain in academic good standing, LDS students cannot.
Effectively, the current endorsement rules for LDS students:
1. Prevent LDS students from changing their faith declaration, but allow members of any
other faith to change their faith declaration
2. Require that as part of their endorsement interview, LDS students openly disclose any
faith crisis to their endorsing LDS bishop
3. Prevent LDS bishops from endorsing inactive LDS members, while allowing leaders of
other faiths to determine the parameters of their endorsements
4. Require expulsion of inactive LDS members
This double standard violates the precepts of acceptance and religious tolerance that BYU
declares in its own mission statement. It discriminates against students who have paid tuition and
are academically in good standing. It also further distresses students who are already
experiencing a faith and identity crisis by threatening the success of their education, and thereby
any family support that attends their education.
Do you have a personal experience or story concerning academic freedom at BYU? If
so, please elaborate here.
I am a female former student who left BYU as a junior due to a faith transition in 2005. I am
no longer a practicing LDS member, but my records remain in the Church. I harbor no ill will
toward BYU or church members and enjoyed my time at BYU. I have no problem abiding by the
Honor Code.
I am restrained by economics and time from transferring to another school. I have only 20
credits remaining at BYU, but some of my major credit is double-counted due to international
study. I have also completed most of BYUs extensive religion requirements. This graduation
path exists only with BYU and would be prohibitively longer and more expensive at another
school.
I am in good academic standing (3.8 GPA) and am perfectly willing to pay nonmember
tuition. According to my transcript, I can finish my degree off campus, via Independent Study.
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But because of the endorsement requirements unique to LDS students, this is not possible
for me: graduation and all university credit requires an LDS bishops endorsement, because I
was admitted as a 17-year-old LDS student in 2001.
If it were possible for me to declare another faith, I would reapply tomorrow.
Do you believe that there is another reason why BYU should not be granted continuing
accreditation?
BYU is a wonderful academic institution that should be held accountable for its
discriminatory administration of religious eligibility standards.
The impact of its discriminatory policies is small in numbers, but huge in effect on students
lives. It also broadcasts BYU as an insular, backward institution that oppresses and disallows
true intellectual freedom and personal progression of its LDS students.
This conflict of institutional integrity should be aggressively examined by the accreditation
review board.
I cant graduate or even take Independent Study courses with BYU because I have been
honest about my beliefs.
I have approached four LDS bishops over ten years requesting that they work with me in
renewing my endorsement so that I can finish my BA off campus via Independent Study. I have
offered to attend Church, hold a calling, or participate in any study program they require while I
am a student.
All four bishops have expressed support for my efforts, but are restricted by BYUs
endorsement rules to only endorse active LDS members. I constantly consider approaching
another bishop and lying about my intentions, because: Effectively, my education is being held
hostage to unfair endorsement rules that affect only LDS students.
https://home.byu.edu/webapp/endorsements/, downloaded 9 August 2015. See also, BYU Laws Policies and
Procedures, July 2015,
http://www.google.com/url?q=http%3A%2F%2Fwww.law2.byu.edu%2Fsite%2Ffiles%2Fsecured%2Findex.php%3
Fid%3DPolicies_and_Procedures_2015.07.21.pdf&sa=D&sntz=1&usg=AFQjCNGWjs3PVIrOkxjxhO3kyQpzs4DC
1Q, downloaded 9 August 2015, pages 4, 5, and 8.
2
http://registrar.byu.edu/catalog/2014-2015ucat/GeneralInfo/HonorCode.php, retrieved 12 August 2015
3
https://home.byu.edu/webapp/endorsements/, downloaded 9 August 2015
4
Id.
5
http://www.law2.byu.edu/site/admissions/apply, retrieved 15 August 2015.
6
Acceptance Criteria, http://www.law2.byu.edu/site/admissions/acceptance-criteria, retrieved 9 August 2015
7
8
Id.
9
https://www.scribd.com/doc/33747211/Ecclesiastical-Endorsement-Form, retrieved 15 August 2015
79
10

Chart created by FreeBYU
12
See appendix for full documentation and Curtiss signed statement of the facts.
13
Handbook 1: Stake Presidents and Bishops, Church Discipline and Name Removal > Removing Names
from Church Membership Records, 6.14, pg. 71 (2010).
14
Both were true for me while attending BYU Law
15
Biographical Changes for Students at BYU, BYU Registrars Office. (n.d.). Retrieved Aug 9, 2015, from
https://registrar.byu.edu/registrar/records/biochanges.php
16
Handbook 1: Stake Presidents and Bishops, 6.7.3, Church Discipline and Name Removal > Determining
Whether a Disciplinary Council is Necessary > When a Disciplinary Council is Mandatory > Apostasy
17
http://www.byu.edu/hr/?q=directory/ecclesiastical-clearance-office
18
http://www.deseretnews.com/article/281778/STUDENTS-WHO-RENOUNCE-LDS-CHURCHMEMBERSHIP-NOT-ALLOWED-TO-STAY-AT--Y.html?pg=all, retrieved 9 Aug 2015
11
19
Callister, L. (1993, March 23). STUDENTS WHO RENOUNCE LDS CHURCH MEMBERSHIP NOT ALLOWED TO
STAY AT Y. Deseret News.
20
Callister, L. (1993, March 23). STUDENTS WHO RENOUNCE LDS CHURCH MEMBERSHIP NOT ALLOWED TO
STAY AT Y. Deseret News.
21
The term Mormon is often used to denote a member of the LDS Church
22
Stack, P. (2014, November 20). GROUP SEEKS CHANGE SO EX-MORMONS CAN STAY AT BYU. Salt Lake
Tribune.
23
See Section of Individual Rights and Responsibilities: Religious Freedom, Committee on Religious
Freedom http://apps.americanbar.org/dch/committee.cfm?com=IR504500, retrieved 9 August 2015
24
25
See Appendix for supporting documentation, including selections from Mr. Quackenbushs law school
application, his acceptance letter from BYU Law, an email from BYU Dean Hernandez confirming his commitment
to attend, and a withdrawal letter from Dean Hernandez, verifying the content of the phone call.
26
See Appendix, Mr. Quackenbushs Supporting Documentation
27
Christian Legal Society v. Martinez, 561 U.S. 661 (2010)
28
http://www.law2.byu.edu/site/admissions/non-discrimination-policy, retrieved 12 September 2015
29
See Appendix, LDS Churchs Opposition to Supreme Courts Definition of Marriage.
30
Neither LDS policy nor the Honor Code has changed (as of 6 September 2015) in wake of the Obergefell
decision
31
Book 1, from Determining Whether a Disciplinary Council is Necessary (6.7.2), 2010
32
Id., 6.7.2
33
Id., 6.12.10
34
Id., 16.3.3
35
Book 1, from Issuing Recommends in Special Circumstances (16.7.4), 2010. Exact text is: Members who
have undergone an elective transsexual operation may not receive the priesthood.
36
E.g., Erik Kulick reported being assaulted by LDS leadership for cross-dressing at Mormon worship
services. https://www.youtube.com/watch?v=oe0Bc0Y_OJM. See also Cross-dressing and the LDS Church,
https://www.sunstonemagazine.com/wp-content/uploads/sbi/articles/153-44-47.pdf
37
2014-2015 Greenbook, chapter 13, AMERICAN BAR ASSOCIATION
POLICY ON LEGISLATIVE AND NATIONAL ISSUES.
38
https://registrar.byu.edu/catalog/2013-2014ucat/AdminFaculty/Administration.php
39
Over 400 for most of the last ten years; see http://yfacts.byu.edu/Article?id=97
40
http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2013_2014_ch_1_13_webversion_
greenbook_updated_after_2014_midyear.authcheckdam.pdf, retrieved September 27, 2015
41
https://www.hg.org/law-schools-utah.asp
42
http://www.reviewjournal.com/news/mormon-population-60-percent-utah-4-5-percent-nevada
43
According to BYU administration officials, LDS students comprise 98.7 percent of students, while Non-LDS
students comprise 1.3 percent with more than 25 faiths. (http://home.byu.edu/home/;
http://yfacts.byu.edu/Article?id=97)
44
2014-2015 Greenbook, chapter 13, AMERICAN BAR ASSOCIATION
POLICY ON LEGISLATIVE AND NATIONAL ISSUES.
80
45
http://www.law2.byu.edu/site/admissions/tuition-financial-aid
See Appendix, BYU Honor Code law school application version Google search
47
BYU refers to the 2,367-word version as the BYU Honor Code. For an example, see Appendix,
Endorsement form links to full BYU Honor Code, for an excerpt from endorse.byu.edu, whose BYU Honor
Code link directs to the 2,367-word version
48
49
See Student Commitment and Confidential Report, 2015 BYU Law School Application
50
See appendix, Law school application: religious affiliation questions
51
Given the timing of the Obergefell decision, the fundamental right argument applies only to part of the 20142015 year. Since there has been no change to LDS or BYU policy, the same restriction likely adheres to 2016
applicants, as well as the 2015-2016 academic year.
52
See Obergefell v. Hodges, 576 U.S. ___ (2015)
53
http://chadhardy.com/byu/hardy_byu_complaint_final_m.pdf
54
See steps two and three when applying through the Student Ecclesiastical Endorsement site.
55
Handbook 1: Stake Presidents and Bishops, page vi.
56
Handbook 1: Stake Presidents and Bishops, Announcement of the Decision, 6.10.9 (2010).
57
Handbook 1: Stake Presidents and Bishops, Church Discipline and Name Removal, 6.7.2 (2010).
58
See appendix: Disaffiliation Policy Not Protected by First Amendment
59
BYU Honor Code: If an endorsement is withdrawn, no confessional information is exchanged When
considering the petition, the Dean of Students will focus not on the merits of the ecclesiastical leader's decision to
withdraw the endorsement, but instead on whether the student has demonstrated sufficiently compelling grounds to
warrant an exception to the university's ecclesiastical endorsement requirement.
46
60
Undergraduate Catalog, Brigham Young University. Retrieved August 15, 2015, from
http://registrar.byu.edu/catalog/2014-2015ucat/GeneralInfo/HonorCode.php
61
http://www.freebyu.org/230-comments-sent-to-byus-accreditor-illustrating-constraints-on-academicfreedom/, retrieved 15 August 2015. See also freebyu.org/profiles and the selected profiles in the BYU Law
Complaint appendix
62
Consider this excerpt from a graduate applicants account: I earned my M.S. degree from BYU. When I
applied for entry into a PhD program, my local ecclesiastical authority specifically denied me an endorsement on the
grounds that I was unworthy. His justification was simply because I openly expressed my disbelief in the faith
claims of the LDS Church.
63
BYU students are obligated to report Honor Code violations. BYU housing contracts specify the obligation
to notify the landlord in writing about any needed repairs or violations of the Honor Code or Residential Living
Standards involving other students or residents. See http://och.byu.edu/PDF/2015-2016StudentLandlordRentalAgreement.pdf
64
The Honor Code states: Violations of these standards may be reported to the Honor Code Office, 4440
WSC, (801) 422-2847, or the Off-Campus Housing Office, (801) 422-1513. Students often report alleged
violations to bishops instead or in addition, if the accuser is in the same ward as the accused.
65
http://www.deseretnews.com/article/695250131/Thomas-S-Monson-named-as-new-LDS-Churchpresident.html?pg=all, retrieved September 27, 2015.
66
http://www.sltrib.com/ci_10797630, retrieved September 27, 2015. See additional examples at
mormonsformarriage.com.
67
See freebyu.org/profiles and the selected profiles in the BYU Law Complaint appendix
68
Handbook 1, Counseling > General Guidelines, 7.2.1 (2010).
69
http://www.aaup.org/report/regional-accreditation-standards-concerning-academic-freedom-and-facultyrole-governance, retrieved September 26, 2015
70
Ecclesiastical endorsement form
71
Honor Code Investigation and Administrative Review Process https://policy.byu.edu/view/index.php?p=171
72
Ive changed Scotts name since he is still at risk regarding the posting of his degree. I can connect you to
him privately if needed to confirm the facts.
73
https://registrar.byu.edu/catalog/2014-2015ucat/GeneralInfo/HonorCode.php, retrieved 3 October 2015
74
See appendix for Ms. McCartys Signed Statement
75
Names changed
76
http://www.freebyu.org/undisclosed-honor-code-rules-concealed-in-secret-binder-are-applied-against-byustudent/
81
77
https://policy.byu.edu/view/index.php?p=171, retrieved 16 August 2015

http://www.aaup.org/our-programs/academic-freedom/censure-list
79
Specific policies embodied in the Honor Code include (1) the Academic Honesty Policy,
80
http://www.law2.byu.edu/site/current-students/advisement, retrieved 16 August 2015
81
http://www.law2.byu.edu/site/policies-and-procedures/
82
http://www.law2.byu.edu/site/aba/academic
83
84
85
www.law2.byu.edu/site/search
86
According to BYU administration officials, LDS students comprise 98.7 percent of students, while Non-LDS
students comprise 1.3 percent with more than 25 faiths. (http://home.byu.edu/home/;
http://yfacts.byu.edu/Article?id=97) No demographic statistics are publicly reported by BYU Law administration
officials (http://www.law2.byu.edu/site/home), though it is my perception that the vast majority of the BYU Law
community is LDS.
87
BYU Academic Freedom Policy. (1993, April 1). Retrieved August 16, 2015, from
https://policy.byu.edu/view/index.php?p=9
88
See Selected Stories in the Appendix, and freebyu.org/profiles, for examples of the harm and disruption
experienced by dismissed students of the BYU Honor CodesCodes burdens on religious freedom.
89
http://www.byu.edu/hr/?q=directory/ecclesiastical-clearance-office
90
LDS Temple Recommend Questions see e.g. http://www.lds-mormon.com/veilworker/recommend.shtml
91
See Appendix, LDS Churchs Opposition to Supreme Courts Definition of Marriage.
92
BYU Law Prospective Student Brochure: Law in the Light. Brigham Young University. Retrieved May 28,
2015, from http://www.law2.byu.edu/page/banner/prospective/law_in_light_book.pdf
93
BYU Law Prospective Student Acceptance Criteria. Brigham Young University. Retrieved May 28, 2015,
from http://www.law2.byu.edu/site/admissions/acceptance-criteria
94
http://www.law2.byu.edu/site/admissions/non-discrimination-policy
95
https://kutv.com/news/local/byu-fundamentally-violates-religious-liberty-professor-says-after-cancellingspeech-10-06-2015
96
http://religiondispatches.org/why-i-boycotted-a-conference-at-brigham-young-university/
97
https://www.insidehighered.com/quicktakes/2015/10/07/scholar-boycotts-conference-brigham-young-u
98
https://kutv.com/news/local/byu-fundamentally-violates-religious-liberty-professor-says-after-cancellingspeech-10-06-2015
99
FreeBYU has documented numerous instances of students who lost their endorsements because they shared
their sincere loss of faith in Mormonism with their bishop, who subsequently withdrew or refused to renew those
students endorsements. See freebyu.org/profiles for examples; I can provide a document containing over 200
related accounts upon request.
100
Shapolia v. Los Alamos Natl Laboratory, 992 F.2d 1033, 1038 (10th Cir.1993) is a case from the
comparable area of religious discrimination law. The plaintiff brought a Title VII action for discrimination based on
religion, contending his termination by supervisors who were LDS resulted from their discrimination against
plaintiff, who was not LDS. Characterizing this case the court noted: This case more closely approximates those
straightforward disparate treatment cases in which the plaintiff claims that she was terminated because of her sex or
race. The court also noted, Title VII has been interpreted to protect against requirements of religious conformity
and as such protects those who refuse to hold, as well as those who hold, specific religious beliefs. (emphasis
added)
Similarly, the U.S. District Court for Arkansas Western District found religion-based discrimination where
Defendants discriminated against Plaintiff for failing to abide by Defendants religious beliefs and principles.
(Backus v. Mena Newspapers, Inc., 224 F. Supp. 2d 1228 (2002)).
101
LDS Temple Recommend Questions see e.g. http://www.lds-mormon.com/veilworker/recommend.shtml
102
Handbook 1: Stake Presidents and Bishops, 6.7.3, Church Discipline and Name Removal > Determining
Whether a Disciplinary Council is Necessary > When a Disciplinary Council is Mandatory > Apostasy (2010).
103
Same-Sex Marriage and Religious Liberty: Emerging Conflicts
104
http://www.heraldextra.com/news/local/education/college/byu/byu-doesn-t-anticipate-changes-from-samesex-marriage-ruling/article_238e3c42-2e7a-56a5-9259-6b3b4a8898b6.html
105
Handbook 1: Stake Presidents and Bishops, 3.3.4
78
82
106
Rule 42, ABA Standards and Rules of Procedure for Approval of Law Schools 2014-2015
In a Question and Answer session about protesting at BYU on April 27, 2007, former BYU President Cecil
Samuelson explained to students that the President of the Church of Jesus Christ of Latter-day Saints is also the
Chairman of the BYU Board of Trustees. Samuelson stated that It is a violation of the Honor Code to be critical of
the First Presidency. This address can be found at https://www.youtube.com/watch?v=OLSyC2jvzw&feature=youtu.be&t=6m29s.
108
Name changed to prevent retaliation
109
The Divine Institution of Marriage, Mormon Newsroom, http://www.mormonnewsroom.org/article/thedivine-institution-of-marriage, retrieved 15 August 2015
110
See Obergefell v. Hodges, 576 U.S. ___ (2015)
111
http://www.mormonnewsroom.org/article/top-church-leaders-counsel-members-after-supreme-court-samesex-marriage-decision, retrieved 15 August 2015
112
113
Handbook 1: Stake Presidents and Bishops, Church Policies, 17.3.10 (2010).
114
Religious Liberty, Volume Two: The Free Exercise Clause, pg. 459.
115
Freebyu.org/muriel
116
107
117
Stack, P. (2014, November 20). GROUP SEEKS CHANGE SO EX-MORMONS CAN STAY AT BYU. Salt Lake
Tribune.
118
https://www.lds.org/general-conference/1994/04/the-special-status-of-children?lang=eng
120
See Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Douglas Laycock, Anthony
R. Picarello Jr, page 23. See also Lawline v. American Bar Association, 956 F.2d 1378 (1992).
119
83

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ABA Accreditation Complaint Against BYU Law

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MEMORANDUM OF COMPLAINT

AGAINST BYU LAW

Deans Certification ....................................................................................................... 56

Background on the BYU Honor Code

A. The BYU Honor Code explicitly precludes admission of applicants and

Figure 1: How BYU Laws current policy works

Students must be in good Honor Code standing to be admitted to, continue

Homosexual behavior is inappropriate and violates the honor code.

Material Omission: Bishops decisions can only be appealed

Constitution. It is administered as though the First Amendment of the United States

B. BYU Law violates ABA Standard 308 by outsourcing decisions on

The lack of published criteria for ecclesiastical endorsements

Suspicion that an LDS student has converted to another faith.

The BYU Honor Code violates due process expectations

Investigations by the American Association of University Professors of the

Dismissing those who disaffiliate from the LDS Church.

C. BYU Law fails to disclose the complete BYU Honor Code,

D. BYU Law violates ABA Standard 405(b) by failing to announce and

E. BYU Law violates ABA Standard 509(a) by providing incomplete,

Discrimination based on expression of religious belief is not limited to students. As detailed

BYU Honor Code

BYU Honor Code (BYU Law application version)

BYU Honor Code law school application version Google search

Ecclesiastical Endorsement Form

Student Commitment Form

Law school application: religious affiliation questions

Complaints Concerning the Program of Legal Education

Mr. Quackenbushs Supporting Documentation

Acceptance Letter (accepted as a Roman Catholic)

Email Confirming Commitment to Attend (confirmed attendance as a Roman Catholic)

(continued on next page)

Mr. Penfolds Supporting Documentation

Ms. McCartys Signed Statement

LDS Churchs Opposition to Supreme Courts Definition of Marriage

Disaffiliation Policy Not Protected by First Amendment

Selected accounts evidencing the BYU environment relative to religious and

Name: Dr. Lynn K. Wilder

http://registrar.byu.edu/catalog/2014-2015ucat/GeneralInfo/HonorCode.php, retrieved 12 August 2015

https://policy.byu.edu/view/index.php?p=171, retrieved 16 August 2015

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