Virginia Passes Law Protecting Religious Pluralism on Campus

By on March 27, 2013

As announced in today’s press release, there’s good news from the Commonwealth of Virginia, where Governor Bob McDonnell has signed a new law that champions the American tradition of pluralism by safeguarding the freedom of association of Virginia’s public college and university students.

The new law states:

§ 23-9.2:12. Student organizations; rights and recognition.

To the extent allowed by state and federal law:

1. A religious or political student organization may determine that ordering the organization’s internal affairs, selecting the organization’s leaders and members, defining the organization’s doctrines, and resolving the organization’s disputes are in furtherance of the organization’s religious or political mission and that only persons committed to that mission should conduct such activities; and

2. No public institution of higher education that has granted recognition of and access to any student organization or group shall discriminate against any such student organization or group that exercises its rights pursuant to subdivision 1.

After Ohio (OH Rev Code § 3345.023), Virginia has become the second state that we are aware of to pass such a law since the Supreme Court of the United States’ disappointing ruling in Christian Legal Society v. Martinez (2010). In that case, the Court held that public universities do not violate the First Amendment by adopting “all-comers” policies that require their student organizations to admit any student as a voting member or officer, regardless of whether that student openly disagrees with, or is even hostile to, the group’s fundamental beliefs.

Under these misguided all-comers policies, student groups cannot require that their members or leaders hold certain beliefs, even if those beliefs form the core of the group’s mission. These policies lead to the absurd results of requiring, for example, Jewish student groups to allow Christian, Muslim, and atheist students to serve as group leaders, or requiring that Republican students be allowed to run for leadership positions with the College Democrats. Indeed, Vanderbilt University, which adopted an all-comers policy (with exceptions for fraternities and sororities), has even interpreted its policy to prevent groups from requiring leaders to lead prayers, worship, or Bible studies.

Worse still, all-comers policies make it possible for a larger student group to effectively take over a smaller or minority student group from within by joining that group and voting to change or even to dissolve it. As one Vanderbilt student aptly put it, “enforcing an all-comers policy attempts to create diversity within groups at the expense of diversity among groups.”

By prohibiting public colleges and universities in Virginia from instituting all-comers policies, the new legislation ensures that Virginia’s public college students maintain the right to associate freely on the basis of shared belief and to voice the message of their choice. We appreciate the efforts of Governor Bob McDonnell and primary legislative sponsors Senator Mark Obenshain and Delegate C. Todd Gilbert, as well as the many Virginia legislators who voted for this measure, and we thank them for passing this important legislation.

Cases: Nationwide: “All-comers” Policies Jeopardize Free Association