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Kansas Governor Signs Bill Protecting Students’ Religious Liberty

By March 24, 2016

On Tuesday, Kansas Governor Sam Brownback signed into law a bill that will protect religious student organizations’ ability to limit membership and leadership roles to students who adhere to the central tenets of the organizations’ faith. The bill, SB 175, prevents public institutions of higher education in the state from withholding funding or other benefits to religious student groups that require their leaders or members to adhere to and comply with the organization’s sincerely held beliefs.

The new law states, in pertinent part:

No postsecondary educational institution may take any action or enforce any policy that would deny a religious student association any benefit available to any other student association, or discriminate against a religious student association with respect to such benefit, based on such association’s requirement that the leaders or members of such association:

(a) Adhere to the association’s sincerely held religious beliefs;

(b) comply with the association’s sincerely held religious beliefs;

(c) comply with the association’s sincere religious standards of conduct; or

(d) be committed to furthering the association’s religious missions, as such religious beliefs, observance requirements, standards of conduct or missions are defined by the religious student association, or the religion on which the association is based.

This is an important protection for college students in Kansas. Legislation protecting religious students’ right to form organizations based upon their beliefs has been made necessary by a trend of colleges and universities adopting so-called “all-comers” policies, which condition official recognition by the institution on a student organization’s willingness to allow any student to join and serve as leadership in any group. Formal recognition is important to student organizations because it is usually required in order for a group to be able to reserve campus locations for meetings and events, to be allowed to use university bulletin boards and email listservs, and for eligibility to receive student activity fees.

Proponents of all-comers policies argue that when a student organization prohibits a student from serving as its leader because his or her beliefs or conduct are inconsistent with the organization’s faith and mission, that organization is discriminating against those students. FIRE disagrees. A Jewish congregation isn’t engaging in invidious discrimination against Catholics, Muslims, Buddhists, or atheists when it hires its Rabbi from an applicant pool that includes only people who profess the Jewish faith. Similarly, if a Buddhist student organization is prevented from limiting its leadership to students who ascribe to its principles of nonviolence, can it really claim to still be a Buddhist student group? And this is not merely true for religious groups. The Sierra Club or Greenpeace, for example, should not be forced to accept as leaders people who believe that air pollution is of no real concern, as doing so would inevitably compromise the group’s intended expressive purpose.

Unfortunately, in 2010, the Supreme Court held in Christian Legal Society v. Martinez that all-comers policies are constitutional, although institutions are certainly not required to adopt such provisions. Martinez involved a student group that was denied recognition by the University of California Hastings College of the Law because the group wanted to restrict voting membership and leadership roles to students who committed to act in accordance with the group’s Christian beliefs—including limits on sexual activity. FIRE submitted an amici curiae (“friends of the court”) brief in that case arguing that all-comers policies diminish diversity on campuses by chasing away groups with diverse religious perspectives. That is precisely what happened at Vanderbilt University when it passed what it called (but which was not truly) an “all-comers” policy that drove 13 religious student groups off of its campus. (A true all-comers policy would have no room for single-sex fraternities or sororities, or even honor societies, as such groups are necessarily selective.)

By passing SB 175, Kansas has joined Idaho, North Carolina, Ohio, and Virginia in ensuring that religious students will not be denied this important aspect of freedom of association on campus. Hopefully more states will recognize that instead of forcing belief-based organizations to abandon their commitment to those beliefs in the name of diversity, removing barriers to group creation and promoting a diversity of organizations on campus—all of which are free to promulgate their own beliefs—is far preferable. Such a commitment to pluralism is the best way to guarantee that all perspectives and peoples can find, or create, a welcome home on campus.