MAY 9, 2005

EDUCATION
Campus religious groups seek waivers from anti-discrimination policies

A conflict on college campuses across the country pits student religious groups against school anti-discrimination policies. The groups want waivers from the policies so they can reject members or leaders who don't subscribe to their beliefs, particularly on homosexuality. Student groups, often with help from conservative legal organizations, are filing lawsuits, seeking exemptions from the policies. Many colleges have settled, but several appear headed to court.

The groups, usually Christian organizations, must follow anti-discrimination rules to earn campus recognition, meeting space and funds from student activity fees. Yet some maintain that they must discriminate because of scriptural injunctions against, for example, homosexual conduct. At stake, say supporters of these groups, are freedom of religion and the right to free association.

Waiver opponents - including gay rights organizations and many campus administrators - say that what is at stake is civil rights for all. The right of access to all campus facilities by minorities, those with handicaps, lesbians and gays began with the civil rights movement in the 1960s.

One expert estimates that at least 50 such conflicts have arisen since 2000 across the country, from community colleges to elite universities, at private institutions and public, and that there is an increase in new cases.

Why it Matters
This issue involves cherished American rights, those of religious liberty (in the First Amendment) and equal protection under the law (14th Amendment). Also, the conflict illustrates a movement away from liberal, secular values on campuses in the 1970s through the '90s, and the strength and new assertiveness of conservative Christian organizations. Opponents of waivers charge that there is a larger agenda at play and that behind these challenges is an anti-gay movement to dismantle anti-discrimination laws and policies.

Questions for reporters
Some Christian students complain of a hostile atmosphere toward religion on campus. Ask religious students if they experience anti-religious bias.

Do religious student leaders at campuses in your coverage area believe that placing restrictions on gays' and lesbians' behavior is important in selecting members? Do they find campus anti-discrimination policies an obstacle to their religious practice? Lawyers for the religious clubs counter critics by asking whether gay, lesbian and transgender student groups would feel justified in excluding vehemently homophobic students.

Most campus religious groups have a history of abiding with anti-discrimination policies. Why, then, do some chafe under them, and why now? For example, at Gonzaga University, a Jesuit university in Spokane, Wash., an undergraduate right-to-life organization accepts the university's anti-discrimination policies. But a branch of the Christian Legal Society at Gonzaga Law School is at loggerheads with the administration over the right to choose members and leaders based on religious beliefs and sexual values and practice. Likewise, the law school's Pro-Life Law Caucus was denied university recognition because its constitution was deemed discriminatory.

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Background

Title IX of the 1972 Education Amendments to the Civil Rights Act requires campuses receiving federal funds to have anti-discrimination policies.

For decades, many campus student religious groups signed anti-discrimination policies but quietly continued to discriminate in what one legal expert calls a "gentleman's agreement." He likened it to sororities and fraternities choosing members based on gender, despite campus rules prohibiting discrimination by gender. What has changed recently is that some students are filing complaints, and campus authorities and religious legal groups are pushing the issue. Pressure has, in many cases, won waivers for student groups. But four schools - the University of North Carolina at Chapel Hill, Hastings College of Law (part of the University of California system), Southern Illinois University's School of Law and Arizona State University, Tempe - are taking cases to court.

Typical of the controversial passages in student groups' constitutions is this one, by the ReJOYce in Jesus Campus Fellowship at the Milwaukee School of Engineering: "A voting member of this organization shall not commit those acts which are expressly forbidden in Scripture, including idolatry, premarital or extramarital sex, homosexual behavior, drunkenness, coveting, theft, profanity, occult practices and dishonesty." The ReJOYce constitution cites as authority: Exodus 20:1-17; Leviticus 18:22; Deuteronomy 18:10-11; Romans 1:18-32; 1 Corinthians 5:9-13 and 6:18-19; and Ephesians 5:1-12. Read a letter by lawyers for the Foundation for Individual Rights in Education to the president of the Milwaukee School of Engineering, outlining ReJOYce's legal position.

Often, the student groups require chastity for all single members, without distinguishing between gay and straight members. But critics say that is still discriminatory, since gays and lesbians can't marry people of their own gender and so could never escape the requirement for abstinence.

No federal anti-discrimination law exists. Some states have anti-discrimination statutes. Most colleges and universities have anti-discrimination policies.

University recognition has its privileges, which is why the student Christian groups say they are pressing the point. Typical benefits involve funding from student fees. Here is a list of benefits for recognized campus clubs at Arizona State University: inclusion in university promotional materials, some free photocopying and posters, rental of sound systems and other equipment, an email account, lockers, mailbox and storage, eligibility for funding through students' associations, use of campus buildings for meetings and events, server space for a web site.

HISTORY
The first notable clash between a student club and campus anti-discrimination policies was apparently in 2000 at Tufts University in Medford, Mass. A student had been a member of the Tufts Christian Fellowship for three years, having struggled to decide whether she was gay. She decided that she was a lesbian, and wanted to become part of senior leadership. The group rejected her bid, partly because of her sexual orientation and partly because she hadn't participated in enough activities, says Bruce Reitman, Tufts dean of students. The woman complained under the school's anti-discrimination policy. The fellowship was ejected from campus by a student panel. But, then the panel, at the urging of a faculty committee, instead put the fellowship on a year's probation, requiring it to rewrite its leadership requirements. The woman withdrew her complaint. Read statements from the campus group and from the university published at Beliefnet.com. Read a May 12, 2000, Chronicle of Higher Education article describing the issues.

CURRENT CAMPUS CONFLICTS
Although dozens of such conflicts have arisen on campuses across the country, they have been settled quietly until recently. Now, several schools have pushed the issue toward court. These recent cases include:
• Arizona State University, Tempe. The Christian Legal Society's chapter is suing the school after requesting and being denied an exemption from campus nondiscrimination policies. Read the complaint, filed Nov. 15, 2004. An August hearing is anticipated.
• Pennsylvania State University, University Park. In an interim mediated settlement reached March 30, 2005, in the case of DiscipleMakers Inc. v. Graham B. Spanier, et al, the university will allow DiscipleMakers to stay on campus until the end of the year. The group would not comply with Penn State's nondiscrimination policy required for university recognition. The club's constitution requires leaders to follow conservative Christian guidelines, including a prohibition on gay sex.
• University of California, Hastings College of Law. Evangelical students filed suit in U.S. District Court in San Francisco over the law school's refusal to recognize a Christian Legal Society chapter. The chapter requires members to sign a statement of faith that effectively bars anyone who engages in gay sex or believes that it isn't sinful. Read an Oct. 23, 2004, article in the San Francisco Chronicle.
• University of North Carolina at Chapel Hill. A small Christian fraternity, Alpha Iota Omega, was stripped of recognition in fall 2003 when the group declined to add a nondiscrimination clause to its constitution. AIO says the clause would forbid it from considering religion in choosing members. In the first court ruling in such a case, a federal judge on March 2, 2005, issued an injunction against the university. Read a March 4, 2005, News & Observer story. Read the injunction at the site of the Foundation for Individual Rights in Education, which is helping the fraternity. Read a Feb. 24, 2005, story from the university paper The Daily Tar Heel.
• Southern Illinois University School of Law. The Christian Legal Society filed suit last month in U.S. District Court in Illinois after university officials revoked the chapter's registered status. A student had filed a complaint claiming that CLS chapter membership and leadership policies violated university nondiscrimination policy. The lawsuit contends the university violated the chapter's First Amendment rights of expressive association, free speech and free exercise of religion. Read an April 8, 2005, article about the case at The Annenberg Center's web site.

RELEVANT LEGAL PRECEDENTS
Attorneys on both sides cite four Supreme Court decisions as relevant:
• Widmar v. Vincent. Read the case at Findlaw. On Dec. 8, 1981, the court ruled 8-1 that the University of Missouri at Kansas City could not refuse recognition to a Christian student group because of its religious orientation. Those beliefs, the court ruled, are protected free speech. The argument that the constitutional separation of church and state prevented public institutions from recognizing or supporting religious student groups was dissolved by the rulings in Widmar and in Rosenberger v. Rector & Visitors of the University of Virginia.
• Rosenberger v. Rector & Visitors of the University of Virginia. Read the case at Findlaw. In 1995, the high court ruled 5-4 that the school couldn't deny student-fee funds to a Christian newspaper because of its religious content.
• Boy Scouts of America et al v. Dale. Read the First Amendment Center's links to the case. In 2000, the court ruled 5-4 that a private organization may limit its leadership to those whose beliefs are consistent with the organization's values and mission.
• Roberts v. United States Jaycees. See a 1984 Michigan Law Review article, posted by University of Missouri law professor Douglas Linder. The Roberts decision upheld a Minnesota court's ruling requiring the service organization to admit women and addressed issues defining the right of association. This case tested membership organizations' right of association.

ARTICLES AND INTERNET RESOURCES
• Read a backgrounder on constitutionally protected free association at the First Amendment Center's web site.
• Read a Jan. 25, 2005, Christian Science Monitor article, "Campus Christians: Not always at ease."
• Read "Jesus in the Classroom," a March 21, 2005, New Yorker article posted at the knowledgeplex.org web site. The article provides a thorough background of the legal history of religion issues in schools.
• Read about the related issue of free speech and political correctness on campuses in an article by State University of New York at Albany President Kermit L. Hall, at the First Amendment Center's site. Contact Hall at 518-437-4900, khall@uamail.albany.edu.
• Read the transcript of a colloquy on the campus controversy, called "Religious Freedom vs. Civil Rights," conducted Jan. 27, 2005, by Chronicle of Higher Education writer Burton Bollag with David French, director of the Foundation for Individual Rights in Education. Read Bollag's Jan. 28, 2005, article, "Choosing Their Flock," on the Chronicle web site. Contact Bollag at burton.bollag@chronicle.com.
• See the Alliance Defense Fund's guidance on campus rights conflicts.
• Read "Campus group sues UT on regulation against bias," published March 29, 2005, in the Toledo Blade.
• Read a March 15, 2004, AgapePress article on the American Family Association site describing events at Gonzaga University Law School in which the Christian Legal Society was denied campus recognition. The student bar association found discriminatory the society's requirement that its leaders be Christians. In 2003, the law school declined to recognize the Christian Pro-Life Law Caucus because it wanted to restrict its membership to Christians.

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IN SUPPORT OF WAIVERS
• The Foundation for Individual Rights in Education is a nonprofit educational foundation whose mission is to defend individual rights "at America's increasingly repressive and partisan colleges and universities." FIRE attorneys often help student groups rewrite their constitutions to make them legally defensible and represent student groups in court. Download FIRE's guides to campus rights. David French, president, estimates that at least 50 such cases have arisen on campuses nationally since 2000. Contact him at 215-717-3473, david.french@thefire.org.
• The Arizona-based Alliance Defense Fund has represented student groups at several schools, including the University of Minnesota, the University of Oklahoma, the University of Texas, the University of Wisconsin and Penn State University. The alliance, founded in 1993, is working to identify schools with anti-discrimination policies and to mount legal challenges to them. It also works vigorously to fight same-sex marriage. Contact the lead counsel for each case through national media relations director Greg Scott, 800-835-5233 ext. 411, gscott@telladf.org.
• The Christian Legal Society is the organization most involved with the campus challenges. It works to promote justice, religious liberty and biblical conflict resolution, and some chapters furnish legal services to the poor. Members sign a statement of faith, agreeing to what the group calls a biblical standard of moral conduct, including proscribing adultery and homosexual conduct. Greg Baylor, director of the CLS Center for Law and Religious Freedom in Annandale, Va., says that the CLS bans gay sex, not gays themselves. Contact Baylor at 703-642-1070 ext. 3502, gbaylor@clsnet.org, or Steve Aden, chief litigation counsel for the center, 703-642-1070 ext. 3504, saden@clsnet.org.
• Professor Douglas Kmiec holds the endowed chair in constitutional law at Pepperdine Law School and writes a syndicated column for Catholic News Service. He co-authored three books on the Constitution. It is unconstitutional for state entities to impose religious nondiscrimination policies, in Kmiec's view, as they single out religious viewpoint for disfavor or target religious practice to discriminate against believers without a compelling reason for doing so. Ask Kmiec to discuss what he considers to be constitutionally valid alternatives for meeting the goal of nondiscrimination. Contact Douglas.Kmiec@pepperdine.edu.

AGAINST WAIVERS (OR SKEPTICAL OF THEM)
• San Francisco attorney Ethan P. Schulman is litigating the Hastings case for UCSF. Contact 415-399-3003 or 415-434-1600, eschulman@howardrice.com. Professor Vikram Amar at Hastings is a consultant for the college in the case. He is a constitutional law scholar and frequent legal commentator. Contact 415-565-4663, amarv@uchastings.edu.
• Winnifred Fallers Sullivan is an attorney and a senior lecturer in anthropology and sociology of religion at the University of Chicago Divinity School. She is interested in the legal regulation of religion in modern pluralistic societies. She wrote The Impossibility of Religious Freedom (Princeton University Press, forthcoming June 2005). Ask her to discuss the history of religious groups that are pressing for rights of "religion" over secularity, a movement she dates to the 1988 case Employment Division v. Smith. Contact 773-702-8217, wsulliva@uchicago.edu.
• Lara Schwartz is senior counsel for the Human Rights Campaign, the country's largest gay and lesbian organization. Schwartz says student groups that get institutional recognition should be held to the same standards on sexual orientation as they would be with regard to race or disability. Contact 202-216-1578, Lara.schwartz@hrc.org.
• Robert M. O'Neil is professor of law and director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia Law School. His previous career as a campus administrator included stints as president at the University of Virginia, provost of the University of Cincinnati, vice president of Indiana University and president of the statewide University of Wisconsin system. With background in both the First Amendment and university administration, his is a unique perspective. O'Neil is generally skeptical of waivers but is a proponent of Free Exercise and of state religious freedom laws. Contact 434-924-7540, rmo@virginia.edu.

NEUTRAL
• Sheldon "Shelley" E. Steinbach is vice president and general counsel for the American Council on Education in Washington, D.C. He says campuses must ensure that their nondiscrimination policies are applied fairly and consistently. The conflict between religious rights and individual rights is difficult and not clear-cut, he says. Contact 202-939-9355, sheldon_steinbach@ace.nche.edu.