The atmosphere in the crowded Vanderbilt University classroom was heated.
Three men in suits sat at the front of the room one Tuesday night in January taking the brunt of student complaints about a nondiscrimination policy for campus clubs. The policy wasn’t new, the men said, but the school wanted to fix some "loopholes" that had been in effect for years that gave students control over who could run their clubs.
The school wanted any student to be able to lead or be a part of any campus club. The problem is, many religious clubs on campus adhere to strict moral codes and their leaders are required to promise to live by the same rules, such as no sex before marriage (and then only between a man and a woman). The idea that they could no longer bar atheists or people with conflicting values from leading their religious clubs appalled most of the students in the room.
One of the men, Vice Chancellor for Academic Affairs Richard McCarty, tried to explain his way of thinking about the policy’s implications:
"I’m Catholic," he said to the crowd. "What if my faith beliefs guided all the decisions I make from day to day?"
An awkward silence followed, then loud applause and shouts of "they should" erupted. McCarty responded by hollering, "No they shouldn’t! No they shouldn’t!" over the din. Dozens of students later walked out in protest.
Since that meeting, more than a dozen on-campus religious groups have refused to change their leadership requirements and are no longer officially recognized by the school. The scandal has prompted the Tennessee state Legislature to threaten to halt millions of dollars of state funding to the private university unless the clubs are reinstated.
Vanderbilt is just one example of a university that is rethinking its nondiscrimination policies following a landmark U.S. Supreme Court decision in 2010 that ruled that a University of California law school was justified in denying a Christian group recognition on campus because of an "all-comers" policy. Since then, a rash of universities have considered or adopted all-comers policies that have threatened the status of religious student organizations, like the InterVarsity Christian Fellowship.
The official status of the national Christian organization for college students has been challenged at 41 campuses since the ruling, according to InterVarsity’s Website. The group was officially derecognized at the University of Buffalo in April.
As more universities consider all-comers policies, First Amendment experts say their fear is that future court cases could arise to push the issue out of a university setting and closer to the public arena. If that happens, they say, then the worst is yet to come.
The all-comers rule
On June 28, 2010, the Christian Legal Society suffered a blow when the Supreme Court ruled in favor of a UC Hasting’s College of Law policy that barred the group from forming on campus. At the time, members of the group and the Alliance Defense Fund, a watchdog for religious liberty that argued on the society’s behalf, were disappointed by the ruling —but they also saw a silver lining.
"Today’s ruling will have limited impact," Kim Colby, senior counsel at the CLS Center for Law and Religious Freedom, said after hearing the court’s decision. "We are not aware of any other public university that has the exact same policy as Hastings."
The group took comfort in the fact that Hastings prevailed through an unusual "all-comers" policy that forbade registered student organizations from limiting their membership and leadership based on beliefs. Under the policy, atheists can run Bible-study classes, Republican students can be officers of the College Democrats and so on. But the 5–4 decision was still frustrating to the group, which argued that the school’s policy took away the society’s right to determine their own leadership.
Justice Samuel Alito agreed with the Christian group and called the ruling "a handy weapon for suppressing the speech of unpopular groups." He worried about the potential long-term impacts of the landmark ruling.
"I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country," Alito said in his written dissent to the decision. "I can only hope that this decision will turn out to be an aberration."
Since the decision, however, Christian clubs have been challenged at other universities — such as Vanderbilt and Buffalo — based on the same rationale. The University of North Carolina toyed with adopting an all-comers policy but decided against the move in May. The University of Florida and Ohio State University include provisions in their policies that carve out exemptions for religious organizations, but some students at Ohio State objected to the exemptions, mounting an unsuccessful challenge to the policy in January 2011. The students’ concerns about religious exemptions are ongoing.
For watchdogs like the Foundation for Individual Rights in Education, the developments in all-comers policies are moving away from the ideals of freedom and plurality that should be encouraged on college campuses, says Robert Shibley, FIRE’s senior vice president.
"To some extent, I think universities have been looking for an excuse to crack down on religious groups and these beliefs that they see as being very exclusive and discriminatory," Shibley said from his office in Pennsylvania. "I think this will result in a more strained interpretation of religious liberty that I think will ultimately be destructive for our country."
Back at the Vanderbilt town hall meeting last January, McCarty pleaded with students to understand the school’s vision.
"We believe in inspired leadership," McCarty said. "And sometimes, you will be surprised by someone who doesn’t quite fit the phenotype … and I want that person to have the chance to earn your vote. We want you to be open to that rare individual. … Give them a chance."
The trouble is, as several students pointed out in the meeting, that some of the religious clubs at Vanderbilt are part of national organizations whose policies are non-negotiable. To be recognized by the national group, the local chapters must adopt the same charters and rules as the national organization, and there are perks that come with being part of a national network.
The Catholic Campus Ministry Association, for example, provides retreats, jobs and networking opportunities for students. InterVarsity has events almost every night for students to participate in, from Bible study to book discussions, community meals and forums to discuss "life’s hardest questions and the relevance of Jesus Christ in the world," according to the group’s site.
The Christian Legal Society provides students pursuing a law degree fellowships and networking opportunities that can be valuable to developing a career path. The group runs a job bank, provides attorney referrals, hosts Bible studies and provides volunteer opportunities at legal aid clinics. But the society asks its members to renounce "unbiblical behaviors," such as sex outside of a heterosexual marriage, in order to qualify their membership.
Subsequently, the group’s recognized status on college campuses with non-discrimination policies, such as at UC Hasting’s College of Law, has sometimes fallen into jeopardy when openly gay individuals are denied membership, and there are perks for being recognized by a university, too.
In many cases, groups must be officially recognized by their universities in order to use the universities’ resources, such as university buildings, recruiting fairs and e-mail lists. Some schools only allow recognized groups to post information on campus kiosks or bulletin boards. Only recognized groups can receive university money for travel or operating expenses.
But because of the benefit groups receive for being recognized by universities, it’s only fair that the groups should also comply with the university’s policies, says Noah Feldman, a professor of constitutional and international law at Harvard Law School.
"Until (the Christian Legal Society Supreme Court case), it was a golden moment for religious organizations on campus," Feldman said from his home in Massachusetts. "They could get all of the support without any of the downside. After (the case), they had to choose. They have to play by the government’s rules."
Attorneys at the Alliance Defense Fund weren’t happy with the Supreme Court’s ruling in the Christian Legal Society case in June 2011, but they are more alarmed with what the case will mean for the future.
Already, the decision has impacted similar cases looking to reconcile religious organizations with non-discrimination policies.
In August, 2011, several Christian student groups applied to receive recognized status at San Diego State University — and they were denied. The groups filed a lawsuit arguing that their First Amendment rights were being compromised in a designated public forum. The district court disagreed. The court of appeals disagreed, as well, and the groups have had a hard time surviving without recognition.
"We are so marginalized on campus in most cases that you might as well not exist," says ADF attorney Jeremy Tedesco, who argued for the case. "That is a significant mar on a group. If you think about how involved government is in so many aspects of our lives you start to see the danger of that line of thought."
Tedesco says he worries the Supreme Court’s decision, and all those that follow after, will open the door for other religious groups outside of the university setting to be excluded from public forums. That is cause for even greater alarm, Tedesco says. And reason enough to fight the little battles of each case in the mean time.
"If your local school has a policy that allows organizations to use their facilities, if they attach a non-discrimination policy to that and say we don’t allow churches that discriminate who their leaders are to use this facility, then all churches are excluded," he says. "That’s a dangerous avenue for us to go down in this country."