Working at FIRE, it can be all too easy to become somewhat inured to the seemingly endless barrage of constitutional violations taking place every day on our nation’s campuses. The sheer volume of worthy complaints and egregious unconstitutional abuses sometimes leaves us with the mistaken impression that we’ve seen it all.
Then along comes a case like the one that current Director of the Alliance Defense Fund’s Center for Academic Freedom and former FIRE President David French publicized on Phi Beta Cons on Friday. Wow.
Last Friday, the Alliance Defense Fund (ADF) and the National Litigation Foundation (NLF) teamed up to file suit against Savannah State University (SSU), alleging that the school violated the First Amendment rights of members of a Christian student group. Unfortunately, this may sound pretty standard for regular Torch readers so far—after all, in the past few months, we’ve seen Christian groups unjustly hassled at Brown and Pace. But this case is different—and worse.
According to the facts alleged in the complaint, SSU officials formally expelled from campus Commissioned II Love, a Christian student group, complaining that the group engaged in “harassment” and “hazing.” The school claimed the students’ public expressions of faith constituted “harassment”—even though the conduct in question would have had to have been a serious, unwelcome pattern of behavior to meet the legal definition of harassment, as spelled out by the Department of Education’s Office for Civil Rights in a 2003 statement. Specifically, to legally be considered “harassment,” the students’ conduct must be “sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program.” It is difficult to imagine that members of Commissioned II Love engaged in such aggressive and persistent religious proselytizing so as to meet this exacting standard.
But SSU doesn’t use this legally required standard, anyways. Like many universities, SSU enforces a speech code that prohibits speech protected under the First Amendment in the name of preventing “harassment.” Specifically, SSU’s code states that “[s]tudents are subject to disciplinary action for harassing, threatening, . . . intimidating, coercing, or using physical force in a manner which causes another person of the University community . . . to be reasonably apprehensive or which endangers the health or safety of oneself or another person.” This is a clear violation of the First Amendment rights enjoyed by members of Commissioned II Love, as well as all other students at Savannah State University. Bringing the group up on charges of violating a regulation that itself violates the First Amendment renders the charges invalid.
As if that wasn’t enough, SSU also claimed that Commissioned II Love members were guilty of “hazing” because group leaders washed the feet of new members in an introductory worship service. The ritual foot-washing, an ancient Christian custom said in the Bible to have been practiced by Jesus and his disciples, is a common activity among some contemporary Christian groups, but SSU claimed that it constituted hazing because it was “an activity which endangers or is likely to endanger the physical health of a student, regardless of the student’s willingness to participate in such activity.” The obvious absurdity of claiming that foot-washing is “likely” to endanger club members’ health seems clearly to indicate a tacit institutional hostility towards the presence of Christian groups on SSU’s campus. Surely other student groups have engaged in activities equally or more likely to “endanger the physical health” of members as a foot-wash—say, for example, traveling somewhere by bus, or simply crossing a busy street.
NLF attorney Joseph Martins got it precisely right when he noted that SSU “is essentially saying that Christian groups are okay unless they actually practice Christianity.” As FIRE has repeatedly stated, public universities cannot legally punish student religious groups for practicing their faith. FIRE knew that our country’s undergraduates were regrettably ignorant of the basic guarantees of religious liberty under the Constitution, but we (perhaps foolishly) expected more from campus administrators, whose job it is to both know and protect the legal rights of students at their university.
FIRE will continue to monitor the progress of this remarkable case.