Vanderbilt’s crack-down on religious groups has captured headlines and ignited controversy on campus.  Chancellor Zeppos’ recent “message” on “nondiscrimination” announced a town hall to explain everything.  At this meeting, the dean of the divinity school served as a religious stage prop while Provost Richard McCarty and General Counsel David G. Williams filled three hours with double-talk.

Both the complete footage and the highlights above expose Vanderbilt’s policy change for what it is:  a purge cloaked in a nondiscrimination guise that targets religious students who make the mistake of taking their faith and freedoms seriously.  And it is lead by people who do not understand the role of religion in students’ lives, who have little regard for basic freedoms, and who refuse to put their policy in writing.

For example, a student eloquently explained that just as it is impossible for religious students to separate their faith from the rest of life, so religious groups necessarily make faith-based decisions.  Provost McCarty replied, “Everyone isn’t as fortunate as you are to be firm in their faith.”  So what?  When students want to become stronger, whom do they seek?  People who are firm in their faith?  Or groups engaged in false advertising (e.g., Jewish groups run by Hindus, Mormon groups run by Baptists)?  Vanderbilt mandates the latter.  But this is not surprising, seeing how the Provost emphatically declared that his faith does not and should not affect his decisions at all.  That is, of course, his privilege.  It would be nice if he would allow others to choose differently.

Nor did the administrators fare any better at Freedom 101.  Mr. Williams announced that if a group does not accept everyone, it discriminates.  Actually, this is called freedom of association, which—as the Supreme Court has repeatedly declared—includes the freedom not to associate.  But then again, Mr. Williams has a strange view of this freedom, one that tells groups:  “Either you let everyone in, or you won’t exist.”  This may be many things, but free association it is not.

So what exactly is Vanderbilt’s new policy?  Well, no one knows—not even the administrators.  Mr. McCarty announced an “all-comers” policy.  But fraternities and sororities exclude people for all sorts of reasons, including sex.  Mr. Williams waffled on whether they would be exempted, but not on how this policy would apply to religious groups:  “What we’re against is you basically saying, ‘The only people who can run for leadership—or the only people who we will establish as leaders—have to share that belief.’”  Despite the overall fog of Vanderbilt’s “fire, ready, aim” approach to creating policy, one thing is clear:  religious groups will not enjoy the freedom of religious association.

This shifting double-standard irritated students, who repeatedly asked for a written policy.  But this was too much to ask of Provost McCarty, who explained that “it is virtually impossible to put down in a single document all of the permutation that we have talked about tonight in one tightly written policy.”  Somehow, the thousands of universities that dot the American landscape from sea to shining sea have all managed to create such a written policy.  For that matter, the countless elementary, middle, and high schools have too.  But it is too daunting a task for Vanderbilt.  In fairness, though, it is difficult to concoct a policy that protects favored groups (like the Greek system), targets Christians, and also appears even-handed.

However, to the Provost, all of this is much ado about nothing.  After all, as he announced to the students:  “You’re saying to me, ‘I’m making you do something that you don’t want to do.’  And I am telling that’s not what I am asking you to do.”  Really?  Then why change the policy?  Such obfuscation cannot conceal the reality.  Vanderbilt demands that Christian groups consider Jewish leaders, that Jewish groups consider Hindu leaders, etc. (thus exposing them to discrimination complaints if such students get voted down).  Students rightfully object to this violation of religious freedom.  And the University says, “Do it anyway, or go away.”

Regardless, the Provost assured students that he saw no danger that a group would be “subverted by a couple of dedicated individuals that want to somehow divert the group from its original intent.”  Mr. Provost, meet Christian Legal Society.  It exists, among other things, to hold Bible studies.  But when it said that it expected its leaders to lead these studies, “a group of dedicated individuals”—all on Vanderbilt’s payroll—“diverted the group from its original intent” by denying CLS the recognition it needs to meet freely on campus.

Fortunately, Provost McCarty accentuated his absurdity with his solution for students serious about their beliefs and their freedoms:  “We’re asking you—oh, my gosh—to take a leap of faith for one year and give it a try.”  Christians, of all people, exercise faith, but it is in the Rock of Ages, not in an administrator who articulates such a vacillating, incoherent, and dangerously unwritten policy.

He also offered some advice to students who simply want to maintain the integrity of their group and its teachings:  “You will benefit greatly from being maybe a little bit more open on this issue.”  Here is a better idea for Vanderbilt:  “You will benefit greatly from being maybe a little bit more open to religious freedom.  It has grown in these parts since the Pilgrims.  Just try it.”

Yesterday I had the privilege of speaking at Columbia Law School in New York City regarding Christian Legal Society v. Martinez, the case in which the U.S. Supreme Court held that Hastings College of the Law did not violate the First Amendment by refusing to recognize its CLS law student chapter because the chapter draws its leaders and voting members from among those who share its religious commitments.  Many thanks to the Federalist Society for sponsoring the discussion.

In the “observations” portion of my presentation, I first noted that the decision’s impact on schools with “traditional” non-discrimination policies (i.e., not the unusual “all comers” policy that the Supreme Court addressed) is not entirely clear.  When the Court first accepted the case for review, many expected it to move towards resolution of the broader conflict between religious associational freedom and government rules banning discrimination on the basis of religion and “sexual orientation.”  Given that the Court majority chose to address only the “all comers” policy, it did not fulfill that expectation.

I next observed that public universities have not in great numbers adopted “all comers” policies like the one Hastings said it had.  I don’t know exactly why this is so, but a number of potential reasons come to mind.  First, schools may recognize the absurdity and the virtual impossibility of consistently enforcing an all comers policy.  Second, other schools may not possess the same intense desire to de-recognize a Christian student group that Hastings manifested from the beginning of the controversy onward.  Third, it may be a matter of simple inertia.  Of course, other universities may eventually consider adopting all comers policies.  If you become aware of any such efforts, please let us know!

The question and answer period and my one-on-one discussions with students afterwards had a common theme:  why couldn’t CLS just promise to comply with the all comers policy?  The premise behind this question is that there isn’t a real threat that numerous people rejecting CLS’s religious commitments will seek leadership positions.  There are two basic responses to this.

First, the primary concern is not so much that militant atheists and unrepentant practitioners of extramarital sexual behavior will “storm the gates” and take over, but that CLS, like so many other Christian organizations throughout the centuries, will slowly drift away from orthodoxy.  A written statement of faith, written conduct standards, and a requirement that leaders and voting members declare their agreement with those statements are among the most important ways of protecting against theological drift.

The second rationale is less “utilitarian” and more principle-centered.  CLS (and many Christian organizations) quite literally define themselves through their statements of faith.  Creeds and confessions are intentional acts of self-definition. And creeds and confessions, although admittedly capable of error, are drawn from authoritative Scripture.  In that sense, they are not a matter of unfettered choice.  So when a CLS chapter says “this is our statement of faith” and a public university says, “no, you may not define yourself that way,” it’s a big deal.  CLS cannot depart from its statement of faith without committing what amounts to intellectual and theological treason.  When a public university makes such a demand upon a CLS chapter, its only legitimate options (assuming efforts at negotiation are unsuccessful) are (a) relinquishing recognition; or (b) litigation.

Once again, many thanks to the Federalist Society for sponsoring the event and to the Columbia University Fed Soc leaders for their hospitality.

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Sam Ericsson passed away last Friday after an 11-year battle with cancer.  Sam had served as Director of Christian Legal Society‘s Center for Law & Religious Freedom from 1980 to 1985 and as CLS’s Executive Director from 1985 to 1991 before founding Advocates International, a global network of attorneys dedicated to religious liberty and the rule of law.

Kim Colby, Senior Counsel at the CLS Center, wrote as follows:

Sam wholeheartedly loved the Lord and life.  He was a mentor and friend to many, but particularly to lawyers.  As a Bible teacher, he brought to life Psalm 37, the Good Samaritan parable, Nehemiah, and so many other scriptures.  Constantly, he challenged us with their practical application to everyday life. 

 But Sam never lived an everyday life.  With a huge smile, he would beam, “How can anyone not be an optimist after the Resurrection?”  A passionate and enthusiastic man, he strove to do good for his Neighbor, whether that was the person next door or a stranger in a distant land.  

Fortunately for CLS, religious liberty was one of Sam’s primary passions.  He was the engine behind the passage of the federal Equal Access Act in 1984.  As a result, millions of public schoolchildren have had the opportunity to hear the Gospel in Bible studies after school.  Countless people around the world enjoy greater religious liberty thanks to Sam’s efforts.  After the fall of communism in Eastern Europe and Russia, Sam helped attorneys in numerous countries write constitutional protection for religious liberty into their new constitutions. 

Sam constantly preached thankfulness, taking seriously the injunction to give thanks to God in all things.  When we suffered a setback on a case or legislation, Sam would insist that we give thanks and even celebrate with an impromptu party, trusting in God’s perfect will for an eventual positive outcome. 

And he was a man of integrity.  During my last visit with Sam, while praying for healing, he gave God heartfelt thanks for the lessons he was learning from his pain.

Quite simply, Sam lived Micah 6:8, a verse he quoted frequently: “What does the Lord require of you?  To act justly and to love mercy, and to walk humbly with your God.”  Already missing him, we give great thanks to God for his life.  Please keep his wife Bobby, daughter Monica, and sons Ryan and Nick in your prayers. 

Sam was a pioneer in the fight for religious freedom on campus.  Those who enjoy that freedom — or who continue the fight to protect it — are in Sam’s great debt.

Advocates International’s statement is here.  The statement of ADF President Alan Sears is here.

When the U.S. Supreme Court ruled against CLS in Christian Legal Society v. Martinez in June, the case was not over.  The Court sent the case back to the U.S. Court of Appeals for the Ninth Circuit for consideration of CLS’s claim that Hastings’ “all-comers” policy was selectively enforced.

In a motion filed July 30, 2010, CLS urged the Ninth Circuit to address that issue.  On August 9, Hastings and Hastings Outlaw filed their oppositions to CLS’s motion, essentially urging the court to end the case without consideration of the school’s unconstitutionally selective application of its all-comers policy.  Yesterday, August 19, CLS filed its reply.  We now await the Ninth Circuit’s ruling.

Last week, the Supreme Court issued a disturbing opinion that will directly impact students’ constitutional rights on public university campuses throughout the nation.  In CLS v. Martinez, the Court affirmed the facial constitutionality of a University of California-Hastings policy that forces student clubs to allow all Hastings students to become club members and leaders—even students hostile to the clubs’ purpose and core beliefs.  My colleagues have written several posts which provide in-depth analysis of the meaning and likely impact of this case.

In particular, David French aptly explains that the decision is both narrow and troubling.  Narrow, because Hastings’ “all comers” policy is virtually the only one in existence at a public university.  Troubling, because the decision’s sweeping language appears to significantly weaken the freedoms of speech and association.  But the actual impact of the decision still remains to be seen.  One of the primary concerns is that the decision will create a knee-jerk reaction in the courts to uphold standard nondiscrimination policies that were not at issue in Martinez. 

A similar trend began to emerge in the wake of Wallace v. Jaffree, a case where the Supreme Court reviewed an Alabama statute that authorized a daily moment of silence in the public schools.  The facts at issue demonstrated that this was indeed an extreme case.  Both the senate sponsor of the law and the Governor admitted that the statute’s sole purpose was to return prayer to the public schools.  Additionally, certain teachers at the plaintiff’s school had been using the period of silence to lead their classes in group prayers on a daily basis.  And the State of Alabama had previously tried multiple times to inject prayer into its public school system by passing school prayer laws, but each effort was rebuked by a federal court.  The Court explained that these factors showed that Alabama was not neutral towards religion as required by the Constitution, but was instead forcing prayer on its students.  The Court indeed made clear that under other circumstances, the protection of voluntary student prayer during moments of silence was a constitutionally permissible goal:

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every students’ right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.

Despite this clarification, because the case was the only word from the Supreme Court on moments of silence, courts immediately began to strike them down.  The same year Wallace was decided, a federal appellate court struck down a moment of silence law even though it had none of the egregious circumstances present in Wallace.  For twelve years, the legal landscape looked ominous for the moment of silence.  But finally, in 1997, the U.S. Court of Appeals for the Eleventh Circuit upheld Georgia’s moment of silence statute.  And soon after this decision, three other federal courts of appeal upheld similar statutes.

But to this day, Wallace continues to cast a shadow over federal courts and legislative bodies. Indeed, a federal district court in 2009 invalidated Illinois’ moment of silence law based on Wallace.  This decision has been appealed and the ADF Center for Academic Freedom is urging the U.S. Court of Appeals for the Seventh Circuit to reverse.  The court’s decision will go far in determining the breadth of Wallace’s impact.  Notwithstanding, opponents of religious liberty will continue to raise Wallace in court and in legislative bodies to defeat moments of silence wherever they are implemented or even considered.  

We are quite sure that university officials will invoke Martinez for as long as they can in order to push religious student groups to the fringe of the college campus.  But they should be aware, that Martinez is an extremely narrow decision that provides little refuge for the vast majority of nondiscrimination policies at American universities.  The ADF Center for Academic Freedom maintains that such policies, when used to compel belief-based groups to accept non-adherents, are unconstitutional.  We will continue to defend the constitutional rights of student groups burdened by such policies, and will insist that the courts strictly hold Martinez to its narrow terms.