Yesterday marked the 30th anniversary of the U.S. Supreme Court’s landmark decision in Widmar v. Vincent.  Perhaps you’ve never heard of this case, or perhaps you don’t really care.  But you should.  For Widmar is the cornerstone of modern religious liberty jurisprudence.

In the 1970s a small, but thriving group of Christian students from various denominational backgrounds met regularly on the campus of the University of Missouri at Kansas City.  They called their group, Cornerstone.  The students met in the University’s student center and other facilities to pray, sing hymns, read scripture, share personal testimonies, and discuss the Bible.

But in 1977, the University decided that Cornerstone could no longer meet in its facilities.  The University said that it had a regulation that prohibited the use of its buildings or grounds for religious worship or religious teaching.  I suspect that universities across the country had been doing this sort of thing for years.  There was, and still is, a mistaken understanding of the First Amendment as it applies to student speech on campus, particularly the application of the Establishment Clause, and university administrators, whether in good faith or not, regularly oust Christian student groups for fear of violating it.  But rather than capitulate and move their meetings off campus, the students in Cornerstone drew a line in the sand and said, “No more.”  We owe them a debt of gratitude.

Eleven students filed a lawsuit against the University, alleging that its policy of excluding religious worship and teaching from University buildings violated the First Amendment.  I can imagine they asked their lawyers many of the same questions ADF clients ask me:  Will this have an effect on my degree?  Will the university punish me for suing it?  What will I tell my friends?  These are valid questions, but it seems they already answered the most important question, “why should I do this?”  The eleven students must have known that the ability of their group to survive and share God’s Word depended on it reaching students on campus.  And the only way to reach students on campus was to be on campus.

The students road to justice, however, was not paved smoothly.  The federal trial court ruled against them and held that the Establishment Clause of the First Amendment not only justified, but required the University’s exclusionary policy.  Our nation’s misapprehension of the Establishment Clause runs deep.

A federal court of appeals reversed that ruling and held that the University’s policy of banning worship was a content-based regulation of speech for which there was no compelling justification.  It also ruled that the Establishment Clause does not bar religious speakers from accessing a publicly open facility on equal terms with all other speakers.

The University, not satisfied with this result, asked the Supreme Court to take the case.  And against all the odds, it did.  The case was argued the day before my second birthday in October 1981, and the Court handed down its decision two months and two days later, December 8, 1981, the day after the fortieth anniversary of Pearl Harbor.

In Widmar, the Court held that the University’s policy of excluding religious worship and religious teaching from generally open university facilities discriminated against speech based on its religious content.  In other words, if the University opened its facilities for basically any type of speech, it could not exclude religious speakers.   The Court also held that the government does not violate the Establishment Clause by opening its facilities neutrally to private expression.

When the decision came down, Linda Greenhouse wrote in the New York Times that the “decision is significant . . . in that it provides what may be the Court’s clearest explanation so far of how religious observance fits within the free speech guarantees of the First Amendment.”  Religion, it seemed at the time, would not be relegated to second-class status.

Widmar paved the way for many of the Court’s subsequent religious speech cases involving access to public school facilities, student activity fee funding, and church use of public facilities.  It even set the legal table for Congress to later enact the Equal Access Act, which protects the ability of religious student clubs to meet on public school property.  If you were ever in a Christian club at your public school or college or if you have ever attended a church or Bible study that met in a school or public facility, you have Widmar to thank.

Despite Widmar‘s remarkable impact on religious liberty, some have forgotten it.  Just this week, we told you about the disappointing result in Bronx Household of Faith v. The Board of Education of the City of New York.  The Bronx case, like Widmar, involved a group of Christians who sought to use publicly available school facilities for their Sunday morning gatherings, but who were prohibited from doing so because the city banned worship in its facilities.  For a decade the church litigated whether the city’s policy violated the First Amendment, and in June, the federal court of appeals ruled that the city’s policy was constitutional.  The result:  an estimated 60 churches will be evicted in February because of this ruling.  Yes, that’s right, in direct conflict with the Supreme Court’s decision in Widmar, a subordinate federal court excluded Christians from publicly available facilities because of the way in which they communicate their speech – worship.  It seems some people want to forget Widmar, or at least relegate it to a dusty storage room shelf.

But some have not forgotten.  Yesterday, on Widmar‘s 30th anniversary, many people gathered on the steps of City Hall in New York, including city council members, congregants, and pastors of churches that will be evicted in February.  They rallied to repeal the city’s discriminatory policy and to keep churches meeting in city boroughs that desperately need them.

So why shouldn’t you forget Widmar?  Professor Michael Stokes Paulsen says it best:

Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject . . . .

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

So lest we lose the precious freedoms we have, don’t forget Widmar.  “Tell your children about it in the years to come, and let your children tell their children. Pass the story down from generation to generation.”  (Joel 1:3)

Here at the ADF Center for Academic Freedom, we fight a lot of battles to preserve religious liberty at our nation’s public universities.  More often than not, the universities are doing something unconstitutional.  And more often than not, oddly, many students on campus are okay with that.  But, remarkably, when a university does something perfectly legal – for once – students and alumni are up in arms.

The New York Times reports that some students and alumni of the University of Connecticut are upset over the athletic director’s recently commissioned tradition of asking fans to say the Pledge of Allegiance before football and basketball games.  (The horror!)  I nearly laughed when I read the article, but it seems that the brouhaha is gaining traction, with proponents and opponents becoming more vocal.  Two different polls were conducted.  One concluded that fans like the new tradition by a margin of 2 to 1.  But another fan poll indicates just the opposite.

What are the objections of those opposed to this new practice?  The Times reports the following:

Those opposed said they objected to a public university urging people to say “under God” or felt it was gratuitous to ask people to pledge fealty to the United States at a sporting event. Some expressed concern that UConn athletes who are not American citizens could be put in an awkward position.

Unbelievable.  No one is being compelled to say anything.  It’s an option.  A choice.  Like choosing whether to have the $8 hot dog, the $6 nachos, or just wait and eat at home (which may be the best option given the heartburn associated with the first two).  UConn may encourage people to say the pledge, and it runs afoul of nothing in the First Amendment for the university to do so.  Two federal courts of appeals, the First and the Ninth, have ruled as much.  UConn says that purpose of reciting the Pledge is to get ”people focused on the fact that freedom is valued by us and by people in other countries fighting for theirs.”

The State may acknowledge not only our national allegiance to one another, but also our national recognition of being “under God.”  After all, we are “endowed by [our] Creator” with certain “unalienable rights.”  A simple stroll around the National Mall demonstrates that government routinely acknowledges God’s role in our nation, both yesterday and today.  Furthermore, foreign student athletes are demonstrably not in an “awkward position.”  Two of the foreign student-athletes interview by the Times indicated “they were comfortable standing on the court as their teammates recited the oath.”

So bravo, UConn!  Thank you for honoring our country and those who serve to protect it.  With so much that divides our country, we need a unifying thread, and recitation of the Pledge is a great way to start.

ADF has just completed its appeal to the U.S. Supreme Court in a case involving the prolife student club, Rock for Life, at the University of Maryland, Baltimore County.  The case demonstrates the problems with campus “speech codes.”  Many universities have these vaguely worded policies that prohibit students from engaging in things like ”incivility”  or “disrespect” or “intolerance.”  Frequently, these speech codes allow the listeners, and not the intent of the speaker, to determine whether the speaker has violated the speech code.  So, such statements as “abortion is wrong, ” or “marriage is a man and a woman,” or “Jesus Christ is Lord,” can violate a campus speech code if the listeners feel harassed, threatened, offended, or disrespected by those words, no matter what the speaker intended with his words.

At UMBC near Baltimore, the prolife students in Rock for Life experienced the harsh application of “speech codes.”  Rock for Life received permission to display graphic photos of aborted children in an area of campus well traveled by students.  They figured it would trigger debate about abortion among the students if they saw actual aborted babies.   At the last minute before Rock for Life was going to begin its display, university police and university officials moved the prolife display to a deserted area of campus infrequently visited by students – when watching the security video of this area, you would expect to see the occasional tumbleweed blowing through this vacant expanse of campus.

How did the university justify its abrupt order to move the display?  Four overlapping policies regulating student speech.  Several of these speech codes prohibited “emotional harassment.”  And a university official – its attorney – said that he feared students might feel “emotionally harassed” by the display.  Later, he explained that he wanted to protect the students’ “emotional well-being” and prevent them from becoming “emotionally distraught.”  Hence, UMBC moved the display at the last minute.

In court, ADF challenged this ideological exile of prolife speech, as well as the broadly written “speech codes” invoked to justify their actions.  Several federal appeals courts have struck down such vague policies as violating the First Amendment because they give unbridled discretion to government officials to silence unpopular viewpoints and allow them to hide their true reasons for doing so under the vague language of the speech code.  The Rock for Life case has become mired down in some technical issues on whether the prolife students have standing to challenge all of the policies.  We hope the U.S. Supreme Court will grant review and rule that the legal challenge to the speech code can go forward.

But the speech codes at many universities threaten student speech, especially the speech of students advocating unpopular views – nowadays, that frequently means students advocating for life, marriage, or the Christian Gospel.  Speech codes also can “chill” student speech by pressuring them to self-censor their views so that they won’t get in trouble.  Policies that “chill” the free exchange of ideas on campus are also unconstitutional.  If you are experiencing any such problems, please contact us at the Alliance Defense Fund.  A university campus should truly be a free marketplace of ideas.

______________________
Join the conversation Facebook.com/SpeakUpU
Sound off below – Leave a comment!

What would American college universities be like without a First Amendment to protect disfavored (i.e. Christian, pro-life) speech?  If Carleton University in Ottawa prevails in its legal argument before a Queen’s Justice in Ottawa today, Canadian students may soon find themselves a case study in a university education where there is not even a pretense of a marketplace of ideas. 

Earlier this year, 2010 Pro-life activist of the year Ruth Lobo and a fellow pro-life student sued Carleton University officials after they were arrested (click for video) for holding a peaceful Genocide Awareness Project event on their campus.  Carleton University is by any objective measure the equivalent of a “public” university in the United States.  Yet, Carleton argues in Court pleadings (paragraph 14) that the school is not subject to the Canadian Charter of Rights and Freedoms’ protection of freedom of expression because it is not a “government” entity that must honor these student rights.  Under Carleton’s reading of the Charter, the protections for freedoms of expression, association, etc. are inapplicable to universities and students have no constitutional protection for their expression on campus at Carleton and other similarly “public” universities.  Today in Ottawa, ADF Allied Attorney Albertos Polizogopoulos will defend against Carleton’s motion to dismiss the case.  Prayers are solicited.  A decision will likely come in several weeks. 

While the complaint also raises several other ways in which Carleton’s actions violated the students’ rights, if accepted, Carleton’s assertion that it is unconstrained by any constitutional protections for its students’ expression makes this a critical case to watch.  Not only will the case determine the free speech rights of millions of Canadian students, but if Canada abandons altogether the notion of free speech on its university campuses, such a precedent might also be used to diminish First Amendment protections on U.S. campuses. 

With the rise in appeals to international law in interpreting the U.S. Constitution, it is worth remembering that one of the grievances listed by Thomas Jefferson in the Declaration of Independence was that King George had “abolish[ed] the free system of English laws in a neighboring province [Canada] … so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies.”   Unfortunately, some in the U.S. would have the motive to take advantage of bad decision by Canadian courts. 

Certain groups find the First Amendment a pesky obstacle to creation of a more “progressive” university and society and seek to effectively repeal its protections for dissenting voices on campus.  If Carleton prevails in claiming that students lack any constitutional speech protections, we can expect not only dire consequences for Canadian students but also efforts to import that decision into U.S. courts.

Join the conversation: Facebook.com/SpeakUpU

As USA Today reports, “civility” policies and programs are cropping up at universities across the nation.  Some seem to be bound up with efforts to purge “bullying” from campus (my colleague David Cortman tackles that subject here), other efforts seem to have more affinity with the egg-shell student and the quest to eliminate “offensive” (read, Christian or pro-life) speech from campus.  However, you slice it, the civility police are back. 

On campuses nationwide, civility has become the mantra. The University of Nevada-Las Vegas in January signed off on a Statement of Civility that embraces “the articulation of unpopular and unsettling ideas” and “promotes the rights, safety, dignity, and value of every individual.” At Rutgers, plans for a two-year initiative called Project Civility were already in the works when Clementi jumped to his death from the George Washington Bridge. George Mason University last fall launched an elective called Professionalism and Civility.

While I don’t mind more good manners (I took a great ettique course in college on how to properly butter bread), it’s not the place of government-run universities to impose civility requirements, because they often get out of hand.  As USA Today notes:

Colleges must walk a fine line. A federal court in 2007 ruled that California State University could not impose a requirement that students “be civil to one another” because the term is too vague.

That’s exactly right.  A group of College Republicans held a free speech event at SFSU and suffered through a seven month investigation because onestudent found the event “uncivil.”  (Full disclosure: I was the CR’s lawyer.) 

Despite rulings like this, the civility/anti-bullying/anti-offensive advocates are so persistent that even Congress is considering new anti-harassment legislation that would strip students of their basic First Amendment freedoms on campus.  I would like to think that we, as a society, are better than that and can simply confront incivility with more, civil speech.  As the court in the College Republicans’ case wrote: 

It is important to emphasize here that it is controversial expression that it is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions [like the sanctity of life] that are in the greatest peril-and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression-and repression is an agent democracy’s death.

I commend this thinking to university “civility” committees.