BGP recently blasted Penn State for arguing in its legal brief that its antidiscrimination policy was merely an "aspirational sentiment." Some Penn State students are similarly upset. "They are calling [the nondiscrimination policy] a mere provisional policy that employees can chose whether or not to adhere [to]," Allies President Ed Rowe said yesterday.

I think these criticisms might be missing some of the nuance regarding the various procedures and remedies that might be available. So let's unpack it and consider the layers of possible protection (or lack thereof).

(1) The antidiscrimination policy is merely aspirational. Someone who violates it will not face any punishment.

(2) The policy is an internal school policy. Violations will be punished according to the school's own system of administrative procedures and remedies.

(3) The policy, in at least some circumstances, becomes part of a binding legal contract between students and Penn State. A violation of the policy is therefore also a breach of contract under state contract law.

(4) The policy and the resulting contract create a liberty or property interest possessed by students. A violation of the policy might therefore also constitute a due process violation under federal constitutional law.

Harris's complaint takes the legal position that both (3) and (4) are true.

The relationship between these tiers can be legally tricky. What's important to note, though, is that the "aspirational sentiment" language is only in Portland's brief. Penn State argues that (4) is not true, and it also seems to argue briefly (and weakly) that (3) might not be true.

At bottom, however, Penn State never denies (2). Penn State might ultimately argue that the antidiscimination policy can't be enforced in court, but that is entirely different from arguing that it won't be enforced at all. Nothing in Penn State's argument suggests that employees can violate the policy at will.

You can read Penn State's brief here, and Portland's here (both PDF files).