A colleague yesterday passed around an editorial from The Alligator, an independent student newspaper at the University of Florida (UF). The article referenced the recent controversy surrounding the university’s refusal to recognize the Upsilon chapter of Beta Upsilon Chi (BYX), a Christian men’s fraternity dedicated to "establish[ing] brotherhood and unity among college men based on the common bond of Jesus Christ."
For those not familiar with the case, the Alliance Defense Fund (ADF) and the Christian Legal Society (CLS) filed a lawsuit last July against the University of Florida Board of Trustees and senior administrators, claiming that the BYX fraternity was being unfairly denied official recognition because of the group’s beliefs. When Ryan Peterman, the chapter’s Vice President, met with the school’s Director of Student Involvement in May of 2007, he was told that his group would not be recognized, but could continue to exist as an "off-campus student group" apart from any official recognition. Such a status would leave the group without the right to host meetings or events on campus or even widely advertise their rush program. As the ADF and CLS wrote in their complaint, "BYX is caught in a conundrum. UF refuses to recognize BYX as a Registered Student Organization because the group discriminates on the basis of sex. UF cannot recognize BYX as a Social Fraternity because BYX is unable to affiliate with the IFC due to the group’s religious criteria for members." In other words, the Upsilon chapter was effectively in limbo; they could not exist without the legal relief they were seeking.
The most recent news is that the U.S. Court of Appeals for the Eleventh Circuit has granted a temporary injunction against UF forcing it to allow BYX to advertise and recruit new members on campus during the fall.
What struck me most about The Alligator‘s editorial was the writers’ complete misunderstanding of the fundamental principles of freedom of association and the free exercise of religion. When describing the lawsuit, the editorial states, "You read that right. An organization that unabashedly discriminates against non-Christians and women sued UF for religious and gender discrimination. How’s that for irony?"
I guess I missed the irony. The student members of the Upsilon chapter were rightly confused as to why they were not being granted recognition as a student organization. Both reasons they were given—that they discriminated on the basis of sex and on the basis of religion—rang hollow for them, for there are a number of men’s-only and women’s-only fraternities and sororities on campus and a number of officially recognized faith-based student groups. In fact, in the lawsuit, it was revealed that UF has previously recognized a Christian social fraternity (Kappa Upsilon Chi) and sorority (Sigma Phi Lambda), both of which remain active on the UF campus. Their complaint sounds reasonable to me.
How about an op-ed which purports to defend tolerance and pluralism while actively bashing the right of a student group to exist because its opinions are deemed unpopular? That’s what I call ironic. True tolerance in an open and democratic society is allowing all views into the marketplace of ideas, even those one might view as "backward-thinking." Otherwise, "tolerance" is hollow.
Even more disconcerting is that the editorial is riddled with inconsistencies and contradictions. Only one paragraph after stating that "college is a place for the no-holds-barred, free exchange of ideas," the editorial states that granting recognition to BYX would be "akin to opening a Pandora’s Box of bigotry and exclusion." Similarly, one cannot "respect BYX’s First Amendment right to free assembly and free exercise of religion" and state that "their presence on campus is part of that panoply of pluralism that makes UF such an exciting and intellectually stimulating place" while simultaneously advocating that "overtly Christian organizations should not be receiving public funds." It’s more than a little duplicitous to state that BYX’s existence adds to the value of the campus debate while advocating for the courts to rule against the fraternity, thereby effectively barring them from campus.
The controlling constitutional principle in this situation is viewpoint neutrality. This concept means that the government cannot use its power to advance one person’s opinion over another’s in matters of belief including religion and politics. Applied to the university context by the Supreme Court in Rosenberger v. Rector of the University of Virginia (1995) and Board of Regents of the University of Wisconsin System v. Southworth (2000) the Court ruled that universities could solicit mandatory student fees but that their distribution had to be conducted in a viewpoint neutral fashion. Refusing funding to a Christian group because of the group’s religious viewpoint would be a violation of the principle of viewpoint neutrality.
Sadly, this is not the first time that the University of Florida had to be reminded about the protections afforded to citizens by the Constitution. Regular Torch readers will remember FIRE’s case at UF last winter when several student groups joined to show the movie Obsession: Radical Islam’s War Against the West. To advertise the event, students posted fliers around campus which read: "RADICAL ISLAM WANTS YOU DEAD." In response, Vice President for Student Affairs Patricia Telles-Irvin e-mailed all students at UF stating that "the groups that posted [the posters] owe the campus, and particularly campus members of the Islamic faith, an apology and a clarification." After FIRE contacted Ms. Telles-Irvin, she responded by reaffirming the university’s commitment to free speech both in a letter to FIRE and in an all-campus email to the student body.
Elsewhere in the state, Sam reported on a case at Florida State University (FSU) earlier this spring which was in some ways similar to the case currently before the University of Florida. The FSU case involved two Christian groups, the Christian Legal Society (CLS) and Every Nation Campus Ministry (ENCM), whose funding was frozen by the student government because the groups did not extend their anti-discrimination policies to homosexuals. Sam wrote that "the First Amendment right to free association protects an organization’s right to exclude those who disagree with the purpose and mission of the organization." FIRE advised one of the student groups and was pleased that the FSU student government finally reversed its decision.
The Eleventh Circuit’s temporary injunction is a good sign for anyone who cares about the freedom of association and equal protection under the law. Hopefully the court will rule in favor of affirming the Bill of Rights and will grant relief to the student plaintiffs.