Years ago, Abigail Thernstrom described universities as “islands of repression in a sea of freedom.”  More recently, several columnists have highlighted how the effort to indoctrinate students pervades virtually every aspect of campus life.

Last month, George Will’s Washington Post column outlined how campus speech codes actually train students to support censorship.  In so doing, universities stifle the robust debate and exchange of ideas they claim to support.  And because these speech codes affect every aspect of student life—from the classroom to the dorm room—they are a particularly pernicious method for suppressing unpopular ideas.

Just today, Thomas Sowell’s column, The Role of ‘Educators,’ highlights how this indoctrination occurs in the classroom.  After all, far too many professors see them­selves as “agent[s] of change” who are “strategically placed, with an opportunity to condition students to want a different kind of society.”  Of course, some openly ad­mit this.  For example, Richard Rorty—a long-time philosophy professor—explained that he “like most Americans who teach humanities or social science in colleges and universities . . . try to arrange things so that students who enter as bigoted, homo­phobic religious fundamentalists will leave college with views more like our own.”  He even warned parents that he and his colleagues “are going to go right on trying to discredit you in the eyes of your children, trying to strip your fundamentalist re­ligious community of dignity, trying to make your views seem silly rather than dis­cussable.”  As Sowell notes, having discarded the job of teaching people how to think, these professors seek to undermine the values that made America great.

Last week, Jeremy Tedesco’s column at Townhall.com trumpeted Julea Ward’s victory against indoctrination efforts cloaked as practicum assignments.  After she took an unpopular stand for years, the U.S. Court of Appeals for the Sixth Circuit affirmed her conviction that she should not be forced to endorse behavior she considered immoral by ruling that public universities “cannot compel students to alter or violate their beliefs . . . as the price for obtaining a degree.”  This is a tremendous victory for religious freedom, one that will benefit students far beyond just Eastern Michigan University.

Last month, Mike Adams critiqued the Supreme Court’s unfortunate ruling in Christian Legal Society v. Martinez, which extends indoctrination efforts into the extracurricular arena.  In Cleaning Up After Ruth Bader Ginsburg, Mike highlights some of the flaws of the decision, but he also describes how his university has stretched Martinez to violate the freedoms of religious and political student groups.  In A Queer Need for Rejection, he explains how Martinez exposes some student groups—such as a Christian group that expects its leaders to live by Biblical principles—to harassment and the constant threat of discrimination charges.

Of course, if you have experienced any of these avenues of indoctrination, please contact us.  Your rights may well have been violated, and you may be in a position to secure not only your own freedoms but—like Julea Ward—those of countless others as well. 

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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Badger Catholic v. Walsh, et al. (University of Wisconsin):

Part of the ongoing battle against the University of Wisconsin for its discriminatory student fee program, Badger Catholic presents a challenge to the denial of student fee funding to a Catholic student group because its activities may involve student-led prayer, worship or proselytizing in violation of Rosenberger’s requirement of viewpoint neutrality.  In September, the Seventh Circuit handed down its opinion, reaffirming that the Establishment Clause does not require such discrimination against religious student speech.  The court ruled that the University must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus.

Badger Catholic was a huge win, but the battle isn’t over yet.  Attorneys for the University of Wisconsin filed a petition for writ of certiorari to the United States Supreme Court in November. 

Sheldon v. Dhillon (San Jose-Evergreen Community College District):

 June Sheldon was an adjunct professor at San Jose City College. While teaching her class on human heredity, a student asked whether homosexuality was genetic or environmentally influenced.  Ms. Sheldon responded that the issue was complex and referred the student to materials mentioned in the textbook, but one student was offended by her response and complained anonymously.  The college district responded by firing Ms. Sheldon.  At the end of 2009, the United States District Court for the Northern District of California refused to dismiss Ms. Sheldon’s First Amendment claims, holding that an instructor’s speech in the classroom is protected by the First Amendment, and in June 2010, a settlement was finalized with the District.  As a result of the settlement, the District agreed to fully expunge any allegations of wrongdoing from Ms. Sheldon’s employment record and pay her $100,000 in damages.  The Sheldon case represents a huge victory for faculty free speech, and its precedent can be used in the future to help protect professors’ rights.

Professor Kenneth Howell (University of Illinois):

Dr. Kenneth Howell, a well-respected and well-liked professor at the University of Illinois, was fired in July after teaching the Roman Catholic Church’s position on homosexual behavior in a class called Introduction to Catholicism, after a student (who was not even enrolled in the class!) complained.  But after a few letters from ADF, and facing a groundswell of support by students and media scrutiny, the University reinstated Dr. Howell.  Moreover, a few months later, a faculty committee issued a report on the situation and agreed that Dr. Howell was entitled to due process, that professors of religious studies may have a perspective in teaching their courses, just like any other professor, and that students don’t have a right to not to be offended.  While the Howell situation did not involve a court ruling, the University’s corrective actions should serve as an example to other universities in the future when they are given the opportunity to protect the free speech rights of faculty members.  The Howell situation should also serve as an encouragement to students to stand up for what’s right—the students who started the grassroots effort to get Dr. Howell reinstated played an integral role in this victory.

Indiana University of Pennsylvania

Despite the Third Circuit’s 2008 ruling in DeJohn v. Temple University, many public universities under that Court’s jurisdiction continued to retain unconstitutional speech policies which allowed a student to be punished for saying something that simply offended another student.  In an effort to bring these policies into compliance with DeJohn, ADF allied attorneys sent letters to several universities, notifying them that their policies ran afoul of the Constitution and offering assistance in changing those policies.  As a result of a letter sent by ADF allied attorneys Leonard Brown and Randall Wenger, IUP agreed to change their unconstitutional speech code.   Hopefully more universities follow their lead in 2011 and voluntarily give up their unconstitutional policies.

Despite these victories, 2010 also presented some challenges:

In CLS v. Martinez, the Supreme Court ruled that University of California Hastings College of Law could have an all-comers policy without violating the First Amendment, even though, as the justices rightly pointed out, it made little sense.  (Extensive analysis of the Court’s decision can be found here, here, here, and here, for a start.)  Importantly, however, the Court remanded the case to the district court to determine whether there was discriminatory enforcement of the policy—in other words, whether CLS was targeted for unequal treatment under the policy.  Given the evidence in the record regarding the other student groups that required their members and leaders to hold views in common with the purpose of the group, we are hopeful that CLS will get justice in the end.  And because the ruling was quite narrow (virtually no other schools have an all-comers policy, probably because they are silly and stifle the marketplace of ideas), it had a lesser impact on free speech and associational rights than anticipated.  In the words of Michael McConnell, we have lived to fight another day. 

In Lopez v. Candaele (Los Angeles Community College District) and Rock For Life v. Hrabowski (University of Maryland, Baltimore County), the Ninth and Fourth Circuits, respectively, went the opposite way of the Third and Sixth Circuits in holding that students lack standing to facially challenge policies that restrict their speech.   OSU Students Alliance v. Ray (Oregon State University) is currently awaiting an oral argument date at the Ninth Circuit after a district court judge dismissed the students’ complaint.  While these rulings were certainly disappointing, ADF was able to obtain positive policy changes in all three of these cases.  Adams, Ward and Keeton are also at the appellate level following disappointing district court rulings.  All of these cases are still ongoing, and will be ones to watch for developments in 2011. 

Finally, the Supreme Court heard Arizona Christian School Tuition Organization v. Winn, a case that has implications for associational rights in the educational context.  The opinion in this case is expected in Spring 2011, probably late March or April. 

Given what’s at stake, 2011 promises to be an incredibly crucial year for student and faculty free speech in the courts.

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.

June 28, 2010.

• David French at Phi Beta Cons: CLS v. Martinez: My First Quick Take.
• David French at Academic Freedom File: Martinez Ruling: Ninth Circuit Affirmed, but with Remand.
• David French at Academic Freedom File: CLS v. Martinez: Roger Pilon Gets It Right.
• David French at Academic Freedom File: CLS v. Martinez: Further Thoughts.
• David French at Minding the Campus: CLS v. Martinez: A Curious and Mistaken Decision.
• Timothy Dalrymple interviewing David French at Patheos: “You Cannot be an Equal Participant in the Marketplace of Ideas.”
• Citizen Link: Supreme Court Decision on Religious Freedom “Narrow and Troubling.”
• Roger Pilon at Cato@Liberty: Undermining Freedom of Association.
• FIRE: In “CLS v. Martinez” Ruling, Sharply Divided Supreme Court Undermines Freedom of Association on Campus.
• Richard Epstein at Forbes Magazine: So Much for Religious Liberty.
• Bob Unruh at World Net Daily: Alito: Supremes Endorse “Viewpoint Discrimination.”
• Michelle A. Vu at The Christian Post: Supreme Court: Christian Group Can’t Bar Gays, Get School Funding.
• Mark Walsh at Education Week: Group Barring Gays Can Be Denied Recognition, High Court Says.
• Peter Schmidt at Chronicle of Higher Education: Supreme Court’s Ruling on Law School’s Anti-Bias Policy May Have Limited Impact.
• William Creely at The Torch: First Reactions to “CLS v. Martinez.”
• Erica Goldberg at The Torch: Kennedy’s Concurrence in “Martinez” Highlights Court’s Misguided View on Role of Student Organizations.
• Adelle M. Banks at Beliefnet News: Supreme Court Rules against Christian Legal Group.
• Chuck Donovan at The Foundry: Martinez Ruling a “Serious Setback for Freedom of Expression.”
• Roger Marus at Associated Baptist Press: Justices Say Christian Club Not Exempt from Non-Discrimination Policy.
• Angela Lu at World Magazine: Court Rules Against CLS.

June 29, 2010.

• David French at Townhall: Overstepping Their Boundaries: The Supreme Court Decides What’s Best for Christians.
• Hadley Arkes at First Things: Vast Dangers—Confirmed.
• Adam Goldstein at Huffington Post: Supreme Court’s CLS Decision Sucker-Punches First Amendment.
• Bill Bumpas & Jody Brown at One News Now: Christian Legal Society: It’s Not Over Yet.
• Scott Jaschik at Inside Higher Ed: New Venue for Anti-Bias Debate.
• Ted Olsen & Trevor Persaud at Christianity Today: Christian Legal Society Loses in Supreme Court Case.
• Howard Friedman at Religion Clause: Advocacy Groups React to CLS v. Martinez.
• Kathleen Gilbert at Life Site News: Some Conservatives Slam, Others Downplay SCOTUS Ruling against Christian Groups.
• Charisma News Online: Prayer Leader: Supreme Court Decision May Signal Onset of Church Persecution.
• Tom Strode at Baptist Press: Court Ruling Threatens Christian College Groups.
• Kris Alingod at All Headline News: Supreme Court Sides with School Against Religious Exclusion.
• California Catholic Daily: “Serious Setback for Freedom of Expression.”

June 30, 2010.

• David French at Human Events: Supreme Court Deals Blow to Liberty.
• Jordan Lorence at Washington Examiner: The CLS Case and the Mirage of “All Comers” Policy.
• Greg Baylor on Fox News: The CLS Ruling.
• Bob Ellis at Dakota Voice: Supreme Court Affirms Viewpoint Discrimination.
• The Observatorium: Homogenization.
• Staff at The Underground: Supreme Court Supports Hastings College of Law’s Student Groups Policy.
• Peter Schmidt at Chronicle of Higher Education: Ruling Is Unlikely to End Litigation over Policies on Student Groups.
• Azhar Majeed at The Torch: Dispute Over Scope of Hastings Policy Underscores Narrowness of “Martinez” Decision.
• Megan Grizzle at The Torch: In “Martinez,” Justice Ginsburg Disregards Serious Threat of Hostile Takeovers.

July 1, 2010.

• Casey Mattox on CBN News Video: CLS v. Martinez.
• Cal Thomas at Townhall: The Courts, the Clubs, and Discrimination.
• Mike S. Adams at Townhall: An Immodest Proposal.
• Erica Goldberg at The Torch: The “Subsidy” Is Not the Issue: The Incorrect Framing of “CLS v. Martinez.”
• Peter Bonilla at The Torch: SPLC’s Frank LoMonte Asks: How Might “CLS v. Martinez” Affect Student Press?
• John Leo at Minding the Campus: Long Before Hastings There Was Tufts.
• K.C. Johnson at Minding the Campus: What Now after CLS?

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