Conflicting Rights

December 8, 2009

Following years of conflicting lower court rulings, the U.S. Supreme Court on Monday agreed to decide one of the most contested legal questions in higher education today: whether public colleges can enforce anti-bias rules when religious student organizations seek recognition or funding.

Both sides in the case before the court argue that they are defending students from discrimination. “Often university officials don’t like the religious groups and we see [colleges' anti-bias rules] as one more mechanism for keeping religious groups off campus,” said Kim Colby, a lawyer for the Christian Legal Society, which wants the right to organize chapters at public law schools even if those law schools ban discrimination based on sexual orientation. The society excludes gay people — and others who do not share its faith.

The Hastings College of Law of the University of California, like many public colleges and universities, has a policy barring discrimination based on sexual orientation as a requirement for student organizations seeking recognition and funding — and denied recognition to the society as a result. Ethan Schulman, a lawyer for Hastings, frames the case this way. “There’s no question of the importance of the issue of whether public colleges have a constitutional obligation to subsidize discriminatory groups on campus,” he said.

The question of whether and when the Supreme Court might decide the issue has been the subject of much speculation. The court tends to take courses when there are splits among appeals courts, and that is the case on this issue.

The U.S. Court of Appeals for the Ninth Circuit has backed Hastings and other public schools and colleges that have defended the enforcement of their anti-bias rules. But the U.S. Court of Appeals for the Seventh Circuit backed the Christian Legal Society in a similar dispute at the Southern Illinois University law school. The Illinois ruling stressed the First Amendment rights of the Christian students to free association; the ruling on Hastings was only a few sentences long, but referenced another case that said that as long as anti-bias rules were devised and applied equally, they could be applied to the religious organizations at public institutions.

Despite the split between the appeals courts, some legal experts thought that it could be years before the Supreme Court took up the case. That’s because the Supreme Court in June passed up a chance to review the case that was the basis of the Ninth Circuit’s ruling in Hastings. The Supreme Court doesn’t have to say why it rejects some cases or takes others, but in recent weeks, the exceptionally long time that the justices were taking to indicate their decision on whether to hear the Hastings appeal encouraged some of those wanting the Supreme Court to take the case.

The uncertainty has left some colleges changing their policies to avoid lawsuits, while others have stood their ground. While the Hastings and Southern Illinois cases have been based on law school student groups, other suits have been started by Christian fraternities. And while the legal issue before the Supreme Court relates to public colleges and universities, the ethical issues involved have been turning up at private institutions as well, with an intense debate taking place at Cornell University over the last year.

The Legal Issues

The center of the debate before the Supreme Court is the question of whether the Christian groups are suffering religious discrimination (as they say) or whether they are seeking special treatment (as Hastings says).

The Christian Legal Society argues that its First Amendment rights to religious freedom and free association can’t coexist with requirements that they view as violating their basic beliefs. Colby, the lawyer for the society, said that the group expects its members to “conduct themselves in a manner that is Biblically correct” and that it is “common sense” that a religious group should be able to determine its own standards.

While critics of the society have noted that its members could still congregate on campuses without student funds or official recognition, Colby said that “it does matter whether you are recognized or not” and that the Supreme Court has backed that right. She noted a 1972 decision, Healy v. James, on the right of public college students to organize a chapter of Students for a Democratic Society (against the wishes of university administrators) as evidence that the Supreme Court sees official recognition as a significant right.

Christian students “want to be treated just like other groups,” she said, and that means forming groups of like-minded students. “That’s why universities set up these programs in the first place. They are a way of helping students organize around viewpoints, a diversity of viewpoints.” (Details of the argument can be found in the society’s brief asking the Supreme Court to take the case.)

The Hastings argument, however, is that the Christian Legal Society is trying not to be treated like other student groups.

“The Supreme Court has been sympathetic to the idea that religious groups should have equal access, that they should be treated in the same manner as other groups,” Schulman said. “What’s different here is that the Christian Legal Society is seeking special rights for religious groups. It is asking the court to say that religious groups should be exempted from generally applicable non-discriminatory policies and that would be a very dangerous and troubling precedent.” Schulman noted that no one has presented any evidence that the Christian Legal Society had to face additional rules or different rules than those imposed on other student groups because of its religious status.

Further, he questioned the idea that letting in a gay student or a non-believing student would destroy the integrity of the society. He said that the case followed a period in which the Hastings branch of the society didn’t seek to kick out those who didn’t share the group’s beliefs and that it had an openly gay member, and non-Christian members, without any impact on the group’s views. Schulman contrasted that experience — in which students are welcome in all recognized groups — with the “official imprimatur of discrimination” that he said the society is seeking to impose. (Details of the Hastings argument can be found in its brief asking the Supreme Court to let the lower court’s decision stand.)

Middle Ground?

Robert M. O’Neil, a former president of the University of Virginia and the University of Wisconsin System who directs the Thomas Jefferson Center for the Protection of Free Expression, said he was surprised that the Supreme Court took the case, given how recently it had turned back another opportunity to decide the issue.

While not predicting what the justices will decide, he noted that there could be middle ground found if the Supreme Court wants to respect both the “institutional interest in enforcing non-discrimination policy and the religious freedom and free association interests of these organizations.”

One balancing act might involve public institutions keeping their anti-bias rules, but not applying them to the selection of officers of organizations, so that a Christian group could be assured that it would be led by members who share certain beliefs. Another approach — for which O’Neil gave credit to one of his law students — might have public colleges keep their policies and require all student organizations to acknowledge the policies and pledge commitment to them, but the institutions would not take actions against groups without a formal complaint.

The Supreme Court could of course decide to favor one side or another, O’Neil said, but he stressed that it was possible to envision compromise positions.

A challenge for Hastings and its supporters, O’Neil said, may be that there are not federal statutes and there are relatively few state laws barring discrimination based on sexual orientation. This “will make it very important for institutions to articulate clearly a rationale for including sexual orientation among forbidden types of discrimination.”

O’Neil said that academic freedom issues may also be raised. He said that faculty groups may want to weigh in on behalf of the right of public colleges and universities to set their own anti-discrimination policies and to enforce them. The American Association of University Professors has yet to weigh in on the case.

The Foundation for Individual Rights in Education plans to file a brief in the case, backing the Christian Legal Society, on the grounds that free association rights are being endangered by the way Hastings and other public universities have enforced anti-bias rules.

Debate at Cornell

One reality of litigation involving college students is that the students initially involved may be long gone before a case is resolved. The Christian Legal Society first sued Hastings in 2004. But the issues raised continue to turn up — and they also show that the principles raised on both sides aren’t hypothetical (which many people assume to be the case, since it may be hard to imagine why students would seek to join a group that wants to discriminate against them).

Consider the controversy over the last year at Cornell University (which, while it has four units of the State University of New York, is a private university and not covered legally in the same way Hastings is).

Christopher Donohoe had been involved in the Chi Alpha Christian Fellowship from the time he was a freshman, and was elected a vice president during his junior year. When he returned as a senior in the fall of 2008, he told the leaders of the organization that he was coming out as gay — and he lost his post as a result. After a few months, he went public with his story, setting off a series of discussions over whether Chi Alpha should be recognized and receive student funds.

A student government body initially tried to freeze funding for Chi Alpha, but that effort failed when it was pointed out that the organization wasn’t violating any rules governing student organizations. That led to proposals to amend the Campus Code to bar funding for groups that discriminate in ways that Cornell bars generally (including sexual orientation). Proponents of the change were clear that they wanted a tool to prevent funding from going to groups like Chi Alpha.

FIRE weighed in on Chi Alpha’s behalf, writing to David Skorton, Cornell’s president, arguing that the Christian group should not be punished financially for its actions against Donohoe. “An expressive organization, whether it is religious, political, or something else, must be allowed to limit its leadership to people who share the group’s beliefs,” said the FIRE letter. “The College Democrats must not be forced to maintain a leader who no longer is a Democrat or rejects various Democratic political beliefs, a Muslim group must not be forced to maintain a leader who no longer believes in tenets of Islam that the group deems important, and a Christian group must not be forced to maintain a leader who no longer agrees with the specific Christian doctrine of the group.”

Skorton has in fact backed the right of free association, telling student government leaders that if they want to bar student organizations from discrimination, they should add a footnote to the policy stating that it does not limit “free speech, freedom of association and religious freedom.” The student government is now holding off on imposing the proposed rules that could deny funds to Chi Alpha, a move that pleases FIRE and dismays The Cornell Daily Sun, the student newspaper, which in an editorial denounced the shift.

Donohoe, who graduated this year and is now teaching English as a second language in the Bronx through Teach for America, said he believed in free expression for Chi Alpha, but that when a student group strips someone of a position because he is gay, there are multiple issues at stake. “Chi Alpha is entitled to have its religious beliefs and those beliefs should not be censored,” he said. “But when a group takes action against a student on the basis of a protected status, that’s when I think you have crossed the line.”

He added: “I was removed from a position because of my sexual orientation. If this had been any other status, if this had been race, if a black person had been removed for being black, I wouldn’t be having this conversation. Any action taken against a student based on protected status should be wrong…. I understand that this is a very complicated issue because it is so important that the university protect all students, including their freedom of expression. But a student group should not be allowed to take action against someone because of their protected class status. If you are a member of the LGBT community, you are not protected, and that’s really, really sad.”

Schools: University of California Cases: University of California Hastings College of the Law: Denial of Recognition to Christian Law School Group