By Harry Painter at The John William Pope Center
Should public universities be allowed to derecognize a Christian student group because it requires members to be Christian? Astoundingly, the courts say yes. Ever since the 2010 Supreme Court decision in Christian Legal Society v. Martinez, the courts have allowed universities this power.
And the California State University (CSU) system recently did just that—itrevoked official recognition from the InterVarsity Christian Fellowship.
Fortunately, some states are fighting back against the post-Martinezunfriendliness toward Christian groups.
In Martinez, a Christian group challenged the “anti-bias” policy of the University of California’s Hastings College of Law, which required Christian groups to accept non-Christians in the name of anti-discrimination. While government-funded universities are not required to adopt “anti-bias” or “all comers” policies, the Supreme Court’s 5-4 decision in Martinez, written by Justice Ruth Bader Ginsburg, found them to be perfectly acceptable.
If a university adopts an “all comers” policy, student groups must accept any student who wants to join, even if the student is not committed—and may be even strongly opposed—to the group’s mission. Universities can impose “all comers” policies not only on the membership of student groups, but also on their leadership. Theoretically at least, this makes it possible for a majority of Christians to take over the atheist club, and vice-versa.
The conservative justices in Martinez, led by Justice Samuel Alito, dissented on the grounds that the ruling was hostile to the freedom to oppose “prevailing standards of political correctness” on campus.
While Martinez concerned California’s other public university system, the CSU system is now displaying the power green-lighted by the Ginsburg-led decision. The system, the nation’s largest with about 447,000 students across 23 campuses, is denying official recognition to a group because it does not consent to the system’s “all comers” policy.
The InterVarsity Christian Fellowship—a national group created in 1941 that has 700 chapters—accepts all students. However, it requires members running for leadership roles to “affirm core Christian beliefs,” according to Greg Jao, the group’s national field director and campus access coordinator.
CSU chancellor Timothy P. White gave the group a yearlong exemption from the “all comers” policy, but he did not renew it earlier this month, in essence ending the group’s official recognition if it doesn’t follow the policy.
Groups that lose such recognition lose access to pricey campus space, the privilege of donning the school’s name, and access to valuable recruiting opportunities. Organizations can also be restricted to campus free-speech zones—which are notoriously remote from centers of activity and confined to small spaces—when they lose recognition. They also would lose access to student fees, although religious groups rarely get such funding, according to Michael Uhlenkamp, the public affairs director at the CSU system.
Harvey A. Silverglate, the co-founder and chairman of the Foundation for Individual Rights in Education (FIRE), penned a recent Wall Street Journal op-ed in which he pointed out that the Martinez case overturned the “long resolved” right of students to freely organize and “enjoy equal access” to public colleges’ facilities.
When people are allowed to freely associate with each other, logically, some of them will dissociate from each other. The First Amendment-protected right of individuals to assemble and interact with other individuals would seem to necessitate an equal right not to assemble nor interact with other individuals.Therefore, the “all comers” policies, designed to make sure that everyone can associate, clashes with the traditional First Amendment freedoms of religion, speech, and assembly.
Since the Martinez decision, a few states—Ohio, Idaho, Virginia, and most recently North Carolina—have passed laws to restore the right of a religious student group to choose its own leaders. North Carolina’s new law, signed by Governor Pat McCrory in June, stemmed from several incidents. In the fall of 2011, a Christian a cappella group at UNC-Chapel Hill kicked out a student because his views on homosexuality conflicted with the group’s mission. After FIRE reminded UNC that its stated policy allowed for this, the university backed off.
UNC-Chapel Hill also had its own run-in with InterVarsity in 2002 for the same reason that CSU is now clamping down on the group. That was before the Martinez decision, however, and UNC did not have the benefit of legal precedent to derecognize the club.
The North Carolina law, sponsored by Republicans Dan Soucek in the Senate and Bert Jones in the House of Representatives, prevents UNC and other state-funded colleges and universities from denying recognition to religious or political student organizations if they require leaders to conform to their mission.
All the new state laws could do even more, however. They only restore the right of a group to pick itsleaders, not its members. Perhaps political compromise made that necessary, or perhaps the new laws are based not on personal freedom but on Christianity’s influence over legislators.
The laws specifically mention only religious and political groups (in Ohio’s case, only religious). For example, Rep. Jones, one of the North Carolina bill’s sponsors, framed the argument in favor of his bill as a culture war. “Our society is engaged in an ongoing cultural battle,” he said. “There is a war on God.”
But religious groups aren’t the only groups whose rights should be protected. Other clubs that are non-political and non-religious are still vulnerable to “all comers” policies.
For example, the Gay-Straight Alliance is non-political, but might have good reason for not wanting an evangelical to lead a chapter. Similarly, a club promoting veganism might have good reason not to allow an unabashed carnivore as its president. Perhaps the Japanese anime club has good reason not to want a president who strongly favors the style and history of American animation.
In his op-ed arguing that forced nondiscrimination conflicts with First Amendment freedoms, Harvey Silverglate writes that “Only when the First Amendment is applied equally to everyone can it fulfill its crucial role.”
While the new laws protect freedom of association and speech—and counter the federal overstep of Martinez—they do not apply equally. They could go further to protect everyone’s freedom of association—covering all groups and not just the leaders of groups, but their members.