Religious freedom vs. civil rights

January 27, 2005

1 p.m., U.S. Eastern time

The Topic

At dozens of colleges the filing — or the mere threat — of a lawsuit has persuaded officials to exempt Christian student groups from campus nondiscrimination rules. But observers say a judicial showdown may finally be coming.

Lawsuits pending against four public institutions claim that their nondiscrimination policies violate the First Amendment rights of Christian student groups. The four are: Arizona State University at Tempe, Pennsylvania State University at University Park, the University of California’s Hastings College of Law, and the University of North Carolina at Chapel Hill. Unlike other institutions, which gave in and exempted religious student groups from nondiscrimination rules, most of the four institutions say they will fight the challenges.

That means that federal courts may finally rule on the dispute. And if they are split in their decisions, the Supreme Court could take up the issue.

Observers say the controversy presents a thorny problem because it pits two constitutionally protected rights against one another: freedom of religion, guaranteed by the First Amendment, and equal protection under the law, as established by the 14th Amendment. The American Civil Liberties Union has not taken a position on the cases. The group’s Ohio chapter is set to discuss the issue shortly. It must decide whether it wants to get involved in a dispute at Ohio State University and, if so, on which side.

Should student groups be required to respect campus nondiscrimination rules? Conservative Christian groups say they should be allowed to restrict membership to heterosexual students who share their faith. But others say that if groups discriminate, they should not receive funds and other support from their colleges. Which should take precedence — religious freedom or protection from discrimination? Is there any way to reconcile the two concepts? How will the courts rule in these difficult cases?

The Guest

David A. French is president of the Foundation for Individual Rights in Education, a Philadelphia-based watchdog group for free speech on college campuses. Mr. French, a lawyer, taught for two years at Cornell University’s Law School. He and FIRE have provided legal advice to Christian student groups at several dozen institutions.

A transcript of the chat follows.

Burton Bollag (Moderator):
    Hello, I am The Chronicle’s religion reporter, Burton Bollag, and I’ll be moderating today’s online discussion. Let’s begin.

David French:
    I would like to thank the Chronicle for hosting this Colloquy. The issues we will discuss today involve not so much a clash of constitutional doctrines as a clash between constitutional doctrine and an ideology of nondiscrimination that says that certain kinds of “exclusion” should never be permitted. Given the momentum that this ideology has in higher education, I like to characterize the problem as: “the irresistable ideological force (nondiscrimination) meets the immovable constitutional object (the First Amendment).”

Question from :
    Would these groups operate according to the standards set by Christian groups? If no, then they should not be allowed. If yes, then there is no question. Let us promote what is good for the survival of mankind. Religious freedom is the heart and soul of the American way of life. Christians have founded and sustained America,let us not stop them from keep moving their country in the right direction.

David French:
    Sadly, many colleges and universities have little or no regard for religious freedom. The standard campus orthodoxy often dictates that conservative religious individuals, groups, and institutions are backward and bigoted. If a school official disagrees with the Christian (or Muslim or Jewish or Hindu) message, that school official is free to use the “bully pulpit” of their position to decry perceived “intolerance,” but they may not use the power of the state to actually stifle religious expression or to exclude religious groups from campus.

Question from James, liberal arts college:
    Should a black organization in a college be forced to accept a sheet-wearing member of Tri Kapppa? Should a Jewish organization on campus be forced to accept an ardent Nazi? Should a Druid club be forced to accept Christians or Jews? Come on, folks.

David French:
    James, your analogies go to the heart of the issue. It is critical for expressive organizations to maintain control over the integrity of their message. This is a matter of basic common sense. It is also important to note that your analogies deal with BELIEF, not STATUS. In other words, there is nothing about being white that prevents someone from sharing a common cause with the NAACP, but — by definition — a white supremacist would be at odds with the NAACP’s mission and purpose. I know of no college that would require a campus chapter of the NAACP to welcome skinheads with open arms.

Question from Lynn Johnson, University of Utah:
    Can a strained interpretation of the 14th amendment trump the clear meaning of the 1st? Is my freedom of religion abrogated when the government forces me to denounce my beliefs or enjoins whom I associate with?

David French:
    The so-called “conflict” between the First and Fourteenth Amendments puzzles me. The Fourteenth Amendment requires the GOVERNMENT to provide citizens with equal protection; it does not mandate that PRIVATE ORGANIZATIONS treat all their members equally. The equal protection provisions of the Fourteenth Amendment have no bearing on the composition of my church congregation or the membership of my political party. I have found that universities raise the Fourteenth Amendment defense typically for two reasons: (1) to confuse the public into thinking that these amendments actually conflict, thereby providing a degree of public relations “covering” for an unconstitutional act; (2) they somehow believe that the act of “recognizing” a student organization makes it — in essence — a part of the university instead of a private entity. There is another factor as well: genuine good faith ignorance. University lawyers have a lot on their plate, and they can hardly be expected to be experts in every relevant area of constitutional, statutory, regulatory and common law. They’re helping manage endowments, manage human resources, manage liability risks, maintain regulatory compliance, etc. It’s just too much for any one person to know.

Question from John K. Wilson, Illinois State University:
    I think this is not a 1st Amendment vs. 14th Amendment issue, but a 1st Amendment vs. 1st Amendment one. Students at a public university have a 1st Amendment right to participate in a registered student organization, regardless of their religion. Rulings such as the Boy Scout case deal with private organizations, not one sponsored by a government entity. It seems odd that FIRE, given its acronym, is favoring a group’s right to exclude over an individual’s right to participate, particularly when the organization in question is getting the student’s funding.

David French:
    Mr. Wilson, you misunderstand the status of “registered” student organizations. A registered student organization is no more a public entity than a church is, or a political party, or an insurance agency, or FIRE itself. Each of these entities is “registered” to do business in a certain state, but the registration process does not make us public. FIRE is not “state-sponsored” because we are a Massachusetts corporation registered to do business in Pennsylvania. In fact, at almost every university, the registration guidelines make it clear that registered student organizations are NOT agents of the university and their actions cannot be imputed to the university itself.

Regarding student fee funding, the Supreme Court has made it abundantly clear that student fee funds are not “government” funds. The only way mandatory student funds can be constitutional is if they are dispensed on a viewpoint neutral basis. The imposition of nondiscrimination regulations in this manner is not viewpoint neutral.

Question from Larry J. Ringgenberg, Ph.D. UW-La Crosse:
    So if public funds should not be used to sponsor discrimination, if no financial support is provided to the group is the discrimination legal?

David French:
    I’m not sure that I understand your question. Public funds are used to sponsor discrimination all the time. For example, the military discriminates on the basis of disability when selecting soldiers, sailors, airmen and marines. Public universities discriminate on the basis of numerous factors when engaging in selective admissions practices . . . including discrimination on the basis of race when following certain kinds of affirmative action or diversity regimes.

Thus, there is no constitutional impediment to the use of public funds for “discrimination” as broadly defined. There are some limited impediments to the use of public funds to “sponsor” certain kinds of discrimination in certain kinds of circumstances. There are broader statutory limits of the use of funds by entities that “discriminate,” but, again, the statutory prohibitions on discrimination are very specific.

It is simply meaningless spin when students, faculty and administrators say, “I don’t want to fund discrimination.” In fact, they do fund discrimination, and they do so happily in many instances. What they are really saying is, “I don’t want to fund THIS KIND of discrimination.”

If an African-American organization was tossed off campus for excluding a white supremacist who sought to change the message of the group from inclusion and racial equality to exclusion and racial supremacy, many of the same people who decry “discrimination” by Christians would lead the candlelight vigils to protest the right of the African-American group to “discriminate” to maintain the integrity of its message. The reality is that the objection is often not to “discrimination” but to the underlying world view of the Christian or Muslim or Jewish organization.

Question from JDM, small liberal arts college:
    Federal law has a long history of exempting religiously controlled institutions from discrimination on the basis of religion (e.g., Title VII and Title IX), why should not student religious organizations within institutions be entitled to similar exemptions?

David French:
    Federal law has a history of granting these exemptions in part because — if the exemptions are not granted — the law may very well be unconstitutional. In other words, the exemptions are a matter not just of legislative choice but of constitutional necessity. FIRE believes that this constitutional necessity will soon become painfully clear to public universities that insist on excluding religious groups on the grounds that such groups engage in “religious discrimination.”

Question from Lara Schwartz, Human Rights Campaign:
    Why does there need to be a choice between religious freedom and protection from discrimination? The campus groups are not being denied religious freedom when they are asked to accept LGBT students as a condition of receiving funds. First of all, the presence of GLBT students in a university club does not deny the Christian students the right to practice their religion freely. Second, the students do not have to accept university funds. The real question is, if students are free to decide that a non-discrimination policy cannot apply to them, why wouldn’t they be able to choose other university rules to violate?

David French:
    Before I get to the heart of your question, there is one factual matter that must be cleared up. Student groups at most major universities cannot exist at all unless they agree to abide by all university regulations — including expansive nondiscrimination rules. Thus, there is typically no lower level of regulation for groups who want facilities access but not student fee funding. (Several Christian groups have proposed arrangements like that and have been rebuffed). The funding issue is often simply irrelevant to the larger question of the group’s ability to exist at all.

Campus groups are being denied religious freedom if they are being asked to accept students that disagree with their mission or message as a precondition for recognition (which is just another word for “existence.”) Freedom of association is an inherent part of the religious liberty guaranteed by the First Amendment . . . without freedom of association, you are by definition deprived of a critical aspect of your religious liberty (and free speech rights).

A concrete example illustrates the importance of the “right to exclude.” If several fundamentalist students sought to join a chapter of the HRC and then used that membership to either (1) report HRC internal strategy and deliberations back to political opponents to grant them an edge in public debate; or (2) use the strength of numbers to elevate to leadership people who believed homosexual sexual activity was an “abomination,” you would see quite clearly and painfully how important it is to be able to dictate the membership of expressive organizations.

Finally, if a rule is unconstitutional, it is not disrespecting campus policies to challenge that rule. If there was a rule in a particularly conservative public school that restricted the HRC’s ability to, say, advocate for gay marriage, you would rightfully be outraged if I accused you of “picking and choosing” regulations. I have never encountered a religious student organization — Christian, Muslim or Jewish — that had a problem complying with constitutionally appropriate regulations.

Burton Bollag (Moderator):
    We’re just past the halfway mark in our discussion. Keep those questions coming!

Question from Larry J. Ringgenberg, Ph.D. UW-La Crosse:
    Another constitutional right, freedom of the press, can also be in conflict with the equal protection regulations of the 14th amendment when a satirical publication writes about specific groups of students. What do you say to these groups that want the publication stopped and their organization status on campus taken away?

David French:
    The freedom of the press does not conflict with the Fourteenth Amendment. If a private publication prints an allegation that offends specific groups of students, those student rights to equal protection or due process are not being threatened. The government has not harmed them (and remember, the Fourteenth Amendment protects a person from government action, not private action). At FIRE, we have seen several examples of publications “offending” students so much that the publication is threatened with punishment or expulsion. My message to those offended students is simple: If you think the publication’s message is offensive, refute it in a publication of your own — or in one of the other publications on campus. The cure for bad speech is more speech — not censorship.

Overall, students, faculty, and administrators are far too easy to offend and far too eager to believe that someone must be punished if they are offended. It takes a bit of courage to participate in the marketplace of ideas. Students need fewer paternalistic protection and stronger backbones.

Question from Emma, public two year college:
    Then why stop there? Should that Nazi student be allowed to enroll in Judaic Studies courses? Should white students be allowed to enroll in Black Studies courses? How do you see that as being different?

David French:
    Of course both kinds of students should be allowed to enroll in the courses. But we’re not talking today about class enrollment, which presents issues (at public universities) as to whether a government entity can exclude students on the basis of viewpoint or race. We’re talking about the ability of purely private organizations to dicate their own membership and message.

Question from Burton Bollag:
    David, aren’t you confusing the issues of STATUS and BELIEF? While it may be justified for a religious group to restrict membership to students who share their belief, is it right for them to discriminate on the basis of sexual orientation — i.e. a person’s status? Sexual orientation is not an opinion, it is indeed a status. Christian groups typically are ready to accept only gays who denounce their own nature. If the issue were one of no-sex-before-marriage, than surely many gay students could accept that, as do many straight students. But let’s be clear about the reasons for barring gays.

David French:
    A good question, Burton. I have never encountered a Christian or Muslim group (and those are the two groups that FIRE has most often worked with) that has ever said that a person’s sexual orientation by itself is reason enough to exclude them from membership and/or leadership. The question is one of religious belief — and conduct in conformance with that belief. For example, at Tufts University, the Tufts Christian Fellowship allowed a woman with a lesbian sexual orientation to lead a women’s bible study… so long as she subscribed to the group’s beliefs regarding scriptural authority and sexual behavior. When her beliefs changed, she was not permitted to lead. Her orientation remained the same throughout. Her beliefs were the only variable.

Many people may read the above statement and be aghast that certain theological traditions ask gays not to engage in same-sex sexual contact, but no one requires any gay individual to attend such a church or belong to such a group. Why is it not enough to be able to form a competing group and to protest and denounce the Christian group? Why is it not enough to work to persuade the Christian group to change its stance (as has happened with the Episcopal Church and the United Churches of Christ, for example)? Why must administrators go one step further and say that your viewpoint must be EXCLUDED from campus? It is that lest step that is problematic… and unconstitutional.

Question from Dave, small private college:
    Do you imagine that FIRE may one day be in the position of defending the right of a group to be funded that you would rather not be funded? Extremist (fill in your least favorite belief here).

David French:
    It is safe to say, given the ideological diversity of our staff, that we defend the right of groups that any number of us dislike (or even despise) to receive student fee funding and recognition virtually every day. Freedom of speech is worth defending for its own sake. There are more than enough people out there willing to defend the free speech (and other constitutional rights) of groups they like. It is much less common to see a group defend freedom not as a means to a particular political end, but as a way of life. At FIRE, we aspire to that level of consistency.

Question from Lara Schwartz, Human Rights Campaign:
    If students do not wish to associate with their lesbian, gay, bisexual or transgender peers, they can simply form a club that does not accept university funds. What is to prevent a student group from deciding that it does not want Jews as members? Or African American students? Surely the university could withold funds from a group that violated its racial or religious non-discrimination policies, even with a purported religious justification. Would you represent a Christian student group that wanted to exclude Jews from its meetings while taking university funds? The question is not whether these students should have religious freedom. It is whether they may be exempt from a reasonable university rule designed to protect the entire community simply because they SAY that their religion requires that they break this rule. The question is whether they have a right to use university funds to violate the university’s non-discrimination policy.

David French:
    Again, the issue is so much more than funding. We are talking about existence. There is typically no such thing as a student group that can exist with a lower level of recognition (including, crucially, facilities access) and no funding.

Also, student fee funding must be dispensed on a viewpoint neutral basis. Period. That is an absolute constitutional requirement. The university cannot privilege or prefer one point of view or ideology when dispensing those funds. This question has been decided for years.

Regarding your various scenarios, you are blurring issues of status and belief. At FIRE, we do not believe that a university would be required to recognize a group that had a “no whites” or “no women” (except in certain, extremely limited circumstances) or “no Jews” (using the term in its racial sense) policy. There is nothing about race or gender, for example, that prohibits participation in the mission or message of an expressive organization. Belief is a different matter. If a Christian organization wanted to exclude people from membership who were not Christian, it would have the right to do so. As would a Muslim group; as would a Jewish group. As would an atheist organization, for that matter. These rights also extend to political and cultural organizations like the HRC. This is absolutely fundamental to the ability to form an expressive organization and advance the group’s expressive purpose.

Question from Kathy, 4 yr university:
    Are your views on LGBT exclusion from religious groups founded on the belief that sexual orientation is a choice? This debate is far from resolution but if sexual orientation was found to be an immutable characteristic such as race, would you still believe groups could discriminate against these individuals? [To refer to your previous example, a student NAACP chapter could not exclude white (immutable) students but could exclude white supremacists (belief/choice)]

David French:
    Our view on this issue has nothing to do with sexual orientation’s classification as a choice or genetic destiny. At FIRE, we assume that sexual orientation is not a choice. The issue is one of belief and behavior in conformance with belief. No one would say that heterosexuals can choose not to be tempted by extramarital sexual activity, but it is fair to say that they have a choice to believe such activity is wrong and a choice to engage in that activity . . . or not. You are free to disagree with such a view and even to find it shocking, disgusting, immoral, pathetic (or some combination thereof). That is not the question. The question is whether the state can exclude from campus those organizations who hold such beliefs.

Question from Rick Haught, University of South Dakota:
    On more than one answer you have characterized student organizations as “purely private.” Will you explain that in the light that these organizations are using the university’s tax exempt status, various financial and physical resources, etc?

David French:
    An organization’s designation as “public” or “private” depends on multiple factors, but even the most cursory review of the relevant case law indicates that use of public facilities does not alter a group’s private status. Nor does the receipt of student fee funds . . . remember, under Supreme Court precedent, student fee funds are not “public funds.” The use of a university’s tax exempt status is an interesting issue, but it does not convert a group to public status any more than the federal government’s decision to grant such status to private groups “federalizes” them. The primary question is one of responsibility and control. Universities do not govern these groups and in fact disclaim any responsibility for their actions in university policies. They are private, and there is no legal precedent to suggest otherwise.

David French:
    I believe we are now out of time. Thank you very much for your questions. It is critically important that we all understand that a truly free community is one that recongizes the independence of expressive organizations and respects their right to advance their own mission and message — even if we disagree with that message. You never know . . . the right you seek to undermine today you may need tomorrow. In any case, FIRE will be there to help. Thank you to the Chronicle for making this discussion possible and extending the “marketplace of ideas” to your own corner of the academic world.

Burton Bollag (Moderator):
    I’m afraid our time is up, but the debate will clearly continue, especially with law suits by Christian campus groups pending against at least four major colleges. Our thanks to our guest, David French, for his thoughtful responses, and to all those who sent in questions.