FIRE announces its Speech Code of the Month for May 2012: Framingham State University. This public university has a student policy on “Freedom of Expression” which provides that
Recognized student clubs or organizations desiring to sponsor a religious display must consider the following: such displays may not promote or hinder one religion over another, must be secular in purpose, and may not intertwine University affairs with religious promotion.
This policy confuses the university’s institutional obligation not to promote religion with the expressive rights of individual students and student groups, in a way that completely ignores binding Supreme Court precedent and unconstitutionally limits religious liberty on campus.
The Establishment Clause of the First Amendment forbids governmental entities (including state universities) from making any “law respecting an establishment of religion.” In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court set forth a three-part test—now commonly referred to as the “Lemon test”—for determining if a law or regulation violates the Establishment Clause:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’
Lemon, 403 U.S. at 612-13.
As you can see, Framingham State’s “Freedom of Expression” policy closely tracks the Lemon test. In applying this test to the activities of religious student groups rather than the university itself, however, the university has fundamentally misunderstood the law in a way that seriously violates students’ expressive rights, apparently using the Establishment Clause as an excuse to curtail students’ well-settled free speech rights.
It is true that the Establishment Clause prohibits a public university from intentionally favoring one creed over another. But with regard to registered student organizations, even those that receive student activity fees, the university’s regulations must be viewpoint neutral, even as between secular and religious speech. Student organizations are not simply the alter ego of the university or the government. So just as the College Republicans may sponsor a display promoting conservative beliefs over liberal ones, the university’s Christian student groups must be permitted to sponsor a display promoting Christianity over, say, atheism. This was the core of the Supreme Court’s holding in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), where the Court held that the University of Virginia violated the free speech guarantees of the First Amendment when it denied student fee funding to a Christian student newspaper because the paper promoted religious beliefs. In that case, the University of Virginia claimed its actions were required by the Establishment Clause, but the Supreme Court held that the university’s actions constituted impermissible viewpoint-based discrimination in violation of the Free Speech Clause.
The Supreme Court also held that the actions of the University of Virginia were in fact not required by the Establishment Clause, since the expression of student groups is distinct from the expression of the university itself. The purpose of a student fee system, the Court held, is to “open a forum for speech and to support various student enterprises,” and thus treating all groups equally (such as, in this case, by allowing all student groups to sponsor displays espousing their respective viewpoints) is “neutral towards religion.”
While Framingham State’s policy may be based in an honest misunderstanding of the law, its effect is an egregious violation of the First Amendment free speech rights of religious student organizations. For this reason, it is our May 2012 Speech Code of the Month.
If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in free speech, consider joining FIRE’s Campus Freedom Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month Widget to your blog or website and help shed some much-needed sunlight on these repressive policies.