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Dear Atheists and Vegetarians of Penn State – Erie: Oops.

Posted on May 26th, 2010 Religious Liberty,Uncategorized | No Comments »

     Several months ago I was reviewing a policy at Penn State-Erie when I stumbled upon the “Safe Zone” at Penn State-Behrend (the Erie campus). I finally got around to blogging about the school’s decision to extend its “Safe Zone” coverage to atheist and vegetarian students – something I had never seen before. I observed that this left meat eating Christians in a dwindling class of students in the “Danger Zone” that is apparently the remainder of the Penn State-Behrend campus.

     Surprisingly, someone at Penn State – Behrend evidently read my blog and the school quickly altered its “Safe Zone – Behrend” to remove atheists and vegetarians.  (You can also view the same website here, with a delicious treat added).  This means that these woebegone classes have now been cast back to the lions (seriously, that’s their mascot) of Penn State – Behrend alongside the Christian, Muslim, Jewish, agnostic (who evidently were not convinced enough of the non-existence of God for the “Safe Zone”), omnivorous, and other students who must fend for themselves in the wilds of Erie, PA. Google cache still has the former “Safe Zone” website with your inclusion if you would like to relive those happier and more secure days.

     I do not know if Penn State – Behrend will be immediately revoking your “Safe Zone” cards or if there is some transitional grace period to allow you to reacquaint yourself with life in the “Danger Zone.”  But it was never my intention to see this fate befall you. The purpose of my blog post was to simply note the silliness of the whole “Safe Zone” idea and to demonstrate how it reveals the pervasiveness of the leftist mindset on university campuses that anyone perceived as non-conservative is a potential victim in need of protection from the school – even when the facts don’t support the narrative.  In fact, studies have shown that atheists are generally viewed positively by faculty and evangelical Christians are the only group that is viewed negatively by a majority of faculty.  The counterfactual leftism in Behrend’s treatment of vegetarians and atheists was truly E(e)rie. (I’ll be here all week).

 So as you re-enter the “Danger Zone,” it is incumbent upon me to offer you my well-wishes and a promise on behalf of Christians and meat eaters everywhere. This is particularly aimed at the vegetarian students but applies with equal force to the atheists as well. We promise not to eat you.

     It occurs to me that perhaps the confusion behind the inclusion of vegetarians in the Safe Zone in the first place was a misunderstanding about the eating habits of omnivores. In the remainder of the animal kingdom, it is true that vegetarian species might reasonably fear that they could be eaten by carnivores or omnivores. Perhaps a zoology professor at Penn State – Behrend, well aware of this and too focused on his work, was behind the inclusion of vegetarians in the safe zone out of an abundance of caution. But human beings – even those who eat meat on occasion – have traditionally abstained from eating grain fed vegetarian humans. I fully endorse this continued abstinence from cannibalism and trust that my fellow meat eating friends at Penn State – Behrend will as well.

As to the atheists, you can rest in the confidence that surveys actually show that most faculty members think warmly of you (unlike evangelicals) so you can probably still find refuge in any professor’s office.  But more importantly, God knows we Christians don’t want to see you harmed. Undoubtedly, you will think our Christian beliefs to be silly superstition. But the upside for you is that those “superstitions” check our sin natures and should hopefully give you some degree of confidence that we will not be plotting your destruction even if our reasons for restraint are unavailing to you. And since Penn State Behrend previously noted the difficulty of identifying atheists as a reason for including you in the Safe Zone, your anonymity might serve you well now.  (Though that Darwin fish eating the Christian fish on the back of your car isn’t doing you any favors).   

      Again, my apologies that my simple blog post has caused this upheaval in your lives. I will try to be more careful in the future.


Casey Mattox


Senior Counsel - Life

Student Activity Fees: Allocating Fees Based on Clear Standards

Posted on May 25th, 2010 Freedom of Speech | 3 Comments »

Today’s post will provide principles that student fee allocation committees can rely upon when distributing fees and insight for student groups to determine if their rights are being violated (and they just don’t know it).  As a recap, in my previous student fee post I wrote:  “the committee [that allocates student fees to student groups] . . . must use objective, specific criteria when deciding how much each student group should receive.”

Student fee allocation committees need objective, specific criteria to guide their decisions so that they cannot hide viewpoint discrimination behind a veil of vagueness.  After the Supreme Court’s decision in Southworth, the case returned to the court of appeals on the question of whether the criteria and funding methods of the University of Wisconsin violated viewpoint neutrality by granting the student government unbridled discretion.  The United States Court of Appeals for the Seventh Circuit found that the university’s funding policy appeared facially viewpoint neutral at that time because the university promulgated an express policy prohibiting viewpoint discrimination, sanctioned officials for violating that policy, used specific criteria to allocate funding to student organizations, and imposed procedural requirements for funding hearings and appeals.  These procedures, in theory, should minimize viewpoint discrimination and ensure equal access.  But the court warned that many of the procedures could give rise to constitutional claims by student groups denied funds.

Without specific, objective criteria for allocating fees, fee allocation committees have unbridled discretion and can hide their viewpoint discriminatory motives.  In Amidon v. Student Association of the State University of New York at Albany, the United States Court of Appeals for the Second Circuit described the danger of unbridled discretion this way:  “it allows officials to suppress viewpoints in surreptitious ways that are difficult to detect.”  In that case, the State University of New York at Albany provided a list of nonexclusive criteria that the student government used in determining whether to use a referendum to allocate funding.  The court found these criteria constitutionally deficient for two reasons.  First, the list of criteria was nonexclusive, which enabled the student government to “camouflage its discriminatory use of the referenda through post-hoc reliance on unspecified criteria.”  Second, two of the criteria (concerning whether the “organization can demonstrate that it will expend funds for the enrichment of campus life,” and whether the “organization can provide services that complement the educational mission” of the university) were too “vague and pliable to effectively provide the constitutional protection of viewpoint neutrality.”  When the government is charged with making decisions whether to grant or deny a permit for free speech activity, it must be guided by “adequate standards to guide the official’s decisions.”

Not just any criteria will suffice.  The funding criteria should not be vague or unclear.  They should be specific and objective, leaving little room for subjective interpretation of a student group’s activities or reasons for requesting funding.  The criteria also cannot be based on how long the group has existed on campus nor how much funding the group received in prior years, because these things relate to the popularity of the group and lead to viewpoint discrimination.  Criteria can examine how many people will attend the event for the purpose of determining how much pizza to fund, but they cannot veer into the popularity of the group (something I will discuss more in my next post).

How does your university fare?  Let us know.  We’re here to ensure that your university does not violate the Constitution when allocating student fees.  Please leave a comment below to share your thoughts or follow us on Facebook to join the conversation.

Next post:  When the democratic process violates the First Amendment.


ADF Senior Legal Counsel - University Project

At the end, turn Left: 2010 Commencement Speakers Overwhelmingly Liberal

Posted on May 25th, 2010 Uncategorized | 5 Comments »

The Young America’s Foundation has published an interesting study on the 2010 commencement speakers at the top 100 universities in America, according to the report issued by U.S. News and World Report.   Not surprisingly, the list of speakers shows a lopsided bias favoring liberal speakers.  Our work at the Center for Academic Freedom demonstrates that the prevailing liberal-secularist orthodoxy at American universities has sought to promote its ideals and silence voices who think differently.  Their choice of commencement speakers reinforces their ideas.  Here are a few highlights from the YAF report:

- Going down the list of speakers at the top 100 universities, you have to get to #64, Texas A & M for the first identifiable conservative speaker, General David Petraeus, who commanded U.S. forces in Iraq.  The only other conservative speakers I could identify who spoke at the top 100 universities was Curt Schilling (former major league pitcher and Republican activist) at #70 Worchester Polytechnic Institute, and Governor Robert McDonnell of Virginia, who spoke at #75 Virginia Tech.  There may have been a few other conservatives that I did not catch, but there weren’t many.  That’s three clearly identifiable conservatives out of 100 commencement speakers.

- In stark contrast, the number of identifiable liberals and leftists jumps off the page.  Those speakers include  former President Bill Clinton (#3 Yale), NYC Mayor Michael Bloomberg (#14 Johns Hopkins University), feminist leader Eleanor Smeal (Rutgers #55), actor Alex Baldwin (#32 New York University), California Governor Arnold Schwartzenegger (#17 Emory), Victoria Kennedy, widow of Sen. Ted Kennedy (#55 University of Maryland), liberal author John Grisham (#29 University of North Carolina-Chapel Hill) and others.

- Speakers from the media were uniformly liberal.  None of the top 100 universities invited a media personality such as the well-credentialed and very successful radio host Laura Ingraham (she graduated from Darmouth and University of Virginia Law School and clerked for Clarence Thomas at the Supreme Court).  Instead, graduates heard speeches by CNN’s Christiane Amanpour (#1 Harvard Class Day speaker), CBS’ Katie Couric ( #41 Case Western Reserve ),  CNN’s Anderson Cooper (#50 Tulane), CBS’ Bob Schieffer (#23 Georgetown School of Continuing Studies) NBC’s Brian Williams (#20 Notre Dame) and PBS’ Charlie Rose (#91 North Carolina State University).  One media speaker I would have wanted to hear was the Food Channel’s Alton Brown (#60 University of Georgia).

- Obama Administration officials spoke at 10 commencements in 2010 alone, while Bush Administration officials spoke on 14 times at commencements during the entire eight years of President Bush’s tenure in office.  The officials included President Obama (#27 University of Michigan), Attorney General Eric Holder (#56 Boston University) and Sec. of Homeland Security Janet Napolitano (#83 American University).  First Lady Michelle Obama spoke at #53 George Washington University.

- Retired Supreme Court justice David Souter spoke at Harvard’s commencement, which may be explained by the fact that he is a Harvard graduate.  However, Justices Scalia, Thomas and Alito did not speak at any graduation ceremonies this year.

It would have been more encouraging if the survey of the top 100 universities showed a wider range of intellectual diversity, and not such a lopsided tilt towards liberalism.  But the prevailing orthodoxy at universities is leftist and secularist, and, the commencement speakers show that.  As one ancient thinker once observed, “out of the abundance of the heart, the mouth speaks.”

Please leave a comment below to share your thoughts or follow us on Facebook to join the conversation.


ADF Senior Vice President; Senior Counsel - University Project

Supreme Court grants review in major school choice case from Arizona

Posted on May 24th, 2010 Uncategorized | 3 Comments »

    The Supreme Court today granted review in a case the Alliance Defense Fund has been litigating on whether Arizona’s school tuition tax credit program violates the Establishment Clause.  Actually, the Supreme Court consolidated two cases, Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn.   You can find the court documents for the appeal here

            Under the Arizona plan, state taxpayers can get a $500 individual tax credit ($1000 for a married couple) when they donate money to any one of a myriad of private tuition organizations that donate scholarship money to at least two private K-12 schools.   The ACLU objects because most of the donations go to religious private schools, and claims that the program violates the Establishment Clause.

      The Supreme Court has upheld similar school choice plans against Establishment Clause challenges.  For example, the Supreme Court upheld Minnesota’s tax deduction plan for public school expenses in Mueller v. Allen, and upheld Cleveland’s school voucher system in Zelman v.  Simmons-HarrisBoth of those cases and others stated that if  government money goes to the religious school because of the voluntary choice of the parents without any governmental coercion, the program does not violate the Establishment Clause. 

      ADF is representing one of the private tuition organizations in the first case the Supreme Court granted review.  ADF is claiming that the taxpayers the ACLU brought to court lack standing to pursue the case because they have suffered no harm from the program - no tax money goes to religious schools under this program.  This is a tax credit to the taxpayer, not a government grant of funds to a religious school.  ADF is arguing that it is too speculative to argue, as the ACLU does, that public schools would get more money if this tax credit system were struck down.  ADF will also be arguing, along with the State of Arizona in the second case, that the program is constitutional under the Establishment Clause.

       I lived in Arizona for 5 1/2 years before our recent move back to the D.C. area.  From my experience, Arizona has set up one of the most impressive school choice systems in the nation.   The Arizona school choice system has many more aspects than just the private school tuition tax credits, enhancing the ability of parents to tailor-make the education each of their children receives.  For example, students can attend any public school in the state.  Charter schools abound, with many of them emphasizing special subjects, such as arts or science or basic education.  Home schooling with its intensive focus on individual students flourishes due to minimal state regulation.  Home school students can send their children to public schools for extracurricular classes (e.g., band, sports teams, etc.).  On top of that, Arizona taxpayers can donate to these charitable groups that then award tuition scholarships to students in private schools. 

   It is interesting how this tax credit program has changed parents’ thinking and behavior in terms of their childrens’ education.  When living there, I saw that when parents in Arizona examined the numerous educational options, they became more active in directing their childrens’ education.  Rather than passively putting their children on orange buses for the public schools at age 5, the Arizona system causes parents to get more involved in their childrens’ lives.  Arizona’s important experiment in school choice is an example for the whole nation, and should not be shot down by some fanatical Scrooges with their obsessive pursuit to impose their narrow and extreme views of the Establishment Clause on everyone else.

   The briefing will unfold over the next few months, with oral arguments in the case probably during the first two weeks of November.  This is going to be an important case, and one where the Supreme Court should reinforce its prior precedents supporting school choice.


ADF Senior Vice President; Senior Counsel - University Project

Some Schools Are NOT Waiting on CLS v Martinez

Academia waits on the Supreme Court to decide CLS v Martinez, with many universities perhaps hoping that the Court will authorize a new means of excluding religious student groups from their campus.  As I’ve noted in a previous post, universities have a long history of wanting to eliminate religious student organizations and many can be expected to take any new opportunity the Supreme Court gives them. But it is worth noting that there are also a number of schools for which CLS v Martinez should change nothing.

Over on the CLS website, a post notes the long history of Universities discriminating against CLS and other religious student organizations by seeking to use nondiscrimination rules to exclude them. The litigation in CLS v. Walker, for example, terminated with a settlement agreement whereby Southern Illinois University agreed to exempt religious organizations from its religion nondiscrimination requirement and agreed that CLS’s nonmarital sexual conduct policies are not “sexual orientation” discrimination. Ohio State University, Arizona State University, Boise State University, the University of Minnesota, Penn State, Rutgers, Washburn University School of Law, and many other universities have similarly entered into binding settlement agreements that would prevent them from applying nondiscrimination rules to prohibit religious student groups from limiting leadership and voting membership to persons who share their religious beliefs. Having contracted to protect these rights, these universities would remain bound by those contracts no matter the outcome of CLS v Martinez.

Additionally, the University of Florida amended its policies to exempt religious groups after oral argument in the Eleventh Circuit in BYX v. Machen. They have subsequently and repeatedly argued to the Court that they will not go back to their former discriminatory policy – an argument the Court accepted as true in dismissing the case as moot. In light of this, one must assume that UF would not again change their policy even if the Supreme Court issued a decision in favor of UC Hastings. The University of Iowa’s General Counsel has stated that to enforce a religion nondiscrimination rule to derecognize CLS would not only violate its First Amendment rights, but also CLS’s rights under the University’s own Human Rights Policy. And the University of Idaho’s SBA Judiciary has determined that CLS’s faith requirements for voting membership and officer positions does not constitute “discrimination” at all within the meaning of the school’s policies. In each of these cases, a victory for Hastings should not authorize the universities to reverse course and discriminate against religious student groups.

Finally, there are a myriad of universities across the country that have more quietly informed religious student groups over the years that they will not apply their nondiscrimination rules to deny recognition to religious student groups. The American Association of University Professors has after all, since 1967, recommended exempting religious organizations’ faith requirements from religion nondiscrimination rules [Student Affairs 1(e)] and many universities have followed AAUP’s advice.

If Hastings’ claims were true we should expect that each of these universities must suffer from a lack of intellectual diversity. Clearly, they must struggle to enforce their nondiscrimination rules to prohibit truly invidious discrimination since they make exceptions for faith requirements for religious groups. They must be inundated with calls from confused members of the community who believe that student groups speak for (and hence “discriminate” for) the universities themselves. Undoubtedly, each of these schools must have encountered KKK and other racist student groups seeking to piggyback on their exemptions for religious groups.

Of course, there is exactly no evidence of any of this at any of these universities. Their recognition of CLS and other religious student organizations – even while permitting these organizations to limit officers and voting members to those who share CLS’s religious views has apparently not harmed these universities’ educational missions in any way. Not one of these universities provided evidence in any amicus brief that their inability to enforce their nondiscrimination rules to deny recognition to religious student groups had harmed the schools in any way. Their silence speaks volumes about the reality of Hastings’ arguments.

The point here is that despite the rhetoric of Hastings and its ideological allies, CLS is not seeking to exercise any new and untested right.  As the experience of the dozens of major universities and law schools across the country that have already made the decision to respect associational freedom attests, Hastings and other universities simply have no legitimate basis for preventing religious student groups from associating around shared beliefs. Given the Supreme Court’s previous decisions protecting First Amendment rights on campus, I look forward to a decisive victory in CLS v Martinez. But even if the Supreme Court somehow sided with Hastings, students at these universities would remain protected in the exercise of their fundamental right of association.


Senior Counsel - Life

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