Recently, Robert O’Neil commented in the Chronicle of Higher Education about the growing conflict between university anti-discrimination policies and the First Amendment rights of campus student groups to select their members according to the groups’ core religious beliefs. To his credit, Mr. O’Neil clearly grasps the critical importance of this issue. His commentary provides a detailed, thoughtful discussion of the current state of the matter in the federal court system and his call for clarification from the Supreme Court is well-taken.

Unfortunately though, Mr. O’Neil’s commentary concludes by providing a “how to” guide showing universities how they can apply their anti-discrimination laws to exclude religious groups from campus without violating the Constitution. While his suggestions that such policies be “clear” and administered “evenhanded[ly]” are not inherently problematic, his other proposals smack of a disdain for religious organizations that would not be tolerated if applied to other student organizations.

For example, Mr. O’Neil suggests that universities sanction student groups for the act of “refusing to sign . . . a nondiscrimination policy” rather than the “stated views of the organization” because conduct is less protected than speech. Under this formulation, student groups could hold to any religious beliefs they wanted . . . .as long as they signed away their right to act on those beliefs in the future. This proposal would render the students’ beliefs meaningless.

Similarly, Mr. O’Neil proposes that public universities utilize “creative thinking” by requiring religious groups to “acknowledge” the nondiscrimination policy, but only sanctioning them if and when an aggrieved student files a charge of discrimination. Again, such an arrangement provides no protection for the student groups whatsoever.

These and other of Mr. O’Neil’s proposals offer little in the way of real compromise. His implicit premise is clear: Universities and student organizations can get along if the student groups will forfeit any religious beliefs that do not comport with the university’s concept of “tolerance.” And by offering all the ways universities can implement their policies just shy of violating the constitution, Mr. O’Neil betrays an implicit—and sadly prevalent—bias against religious student organizations. Indeed, would Mr. O’Neil also advise universities how close they can come to the line of sexual harassment, racial discrimination, or sexual orientation discrimination? I think the answer is obvious.

As the Supreme Court has repeatedly held, public universities—like all government entities—need to give private organizations a wide berth for the exercise of First Amendment freedoms, rather than looking for ways to encroach as far as the Constitution will technically permit. Hopefully, university administrators will take this principle to heart, rather than skate on the constitutional thin ice provided by Mr. O’Neil. But the Supreme Court now has the chance to reaffirm this principle definitively as today it agreed to review the Ninth Circuit’s decision against the Christian Legal Society. May the First Amendment win.

The Supreme Court will decide whether the Constitution allows a public university to use a “non-discrimination” rule to punish a religious student group that draws its leaders and voting members from among those who share its religious commitments.  The Court announced today that it will review a lower court decision in Christian Legal Society v. Martinez, a case involving the University of California’s Hastings College of the Law.

Christian Legal Society (CLS) is an association of Christian lawyers, law students, judges, and law professors.  The foundation of CLS is faith in Jesus Christ.  Like many religious organizations, it adopted a statement of faith setting forth its basic religious beliefs.  In addition, CLS has expressed its adherence to the traditional Christian view of human sexuality, i.e., that sexual intimacy should occur only within the bond of a marriage between one man and one woman.

Hastings encourages the formation of student groups by offering them numerous benefits, including access to meeting space, communications mechanisms, and funding.  A group of CLS law student members at Hastings formed a CLS chapter and sought recognition from law school officials.  CLS indicated that all are welcome to attend CLS meetings but that the chapter’s leaders – as well as those who select them – must be CLS members.  One must sign the statement of faith to be a CLS member.

Hastings concluded that CLS’s religious standards for leadership and voting membership constitute “discrimination” on the basis of religion and “sexual orientation.” In response, CLS pointed out that its leadership and membership policies are not “discrimination,” which is properly defined as the invidious reliance upon irrelevant personal characteristics.  CLS also argued that its sexual morality standards do not constitute “sexual orientation,” given their emphasis on conduct rather than “orientation” and given that all extramarital sexual conduct is considered sinful, whether same-sex or opposite-sex.

Hastings rejected these arguments, and CLS asked the federal courts to vindicate its constitutional rights.  Both the federal district court in San Francisco and the U.S. Court of Appeals for the Ninth Circuit sided with Hastings.  And now the Supreme Court will consider the case.

Much is at stake.  CLS itself has numerous chapters at law schools across the country.  Many of them have fought successfully for their religious freedom, often through litigation.  Many other campus religious groups draw their leaders from among those who share their religious commitments.  If the Court rules against CLS, public universities could force student groups to accept as leaders and voting members individuals who oppose the groups’ beliefs.

More broadly, the freedom of all religious groups – not just campus organizations – to associate around shared religious commitment is under attack.  For example, the ACLU and its allies are working to exclude faith-based social service providers from federally funded programs on the ground that they “discriminate” on the basis of religion and “sexual orientation.”

It is no secret that theologically conservative Christianity is not particularly popular with the elites who control much of America’s higher educational system.  The traditional view of human sexuality is seen as a particularly galling departure from the prevailing campus orthodoxy.  University administrators, moreover, seem to have a lot a trouble complying with the First Amendment.  Let us pray that the Supreme Court will vindicate the foundational principles underlying our first freedom.

Who’s talking about this case?
The Volokh Conspiracy
NRO:Phi Beta Cons
The Chronicle of Higher Education
The Fire

As I was perusing through the Oct. 19 issue of The Daily Iowan, I was intrigued by a half-page advertisement from the Alliance Defense Fund that read “College Students Deserve An Education Not Indoctrination.” Thinking this was a very true statement and a great point, I then looked under the caption to see the following statement: “Christian students at our public universities are being denied their right to openly express what they believe.”

Gioielli continues:

Fair enough, right?  Well, stand by for the conclusion – his message to Christians and the call-to-arms for his “tolerant” compatriots:

At Inside Higher Ed, Kevin Reilly outlines his prescription for curing popular frustration with higher education, one that ignores the systemic illness while suggesting no real changes.  His strategy—dubbed the “Four Pillars of Promise”—calls for “better preparation, more graduates, more research, and better dissemination and commercialization.”  So in his mind, the public is frustrated simply because it wants more of what it has been receiving.  This “more of  the same” approach brings to mind Albert Einstein’s definition of insanity:  “doing the same thing over and over again and expecting different results.”

More importantly, Dr. Reilly overlooks the far more fundamental, far more obvious ills of modern academia:  as the wholly-owned subsidiary of the radical left, it blends intellectual repression with moral hedonism.  Whether it is imposing speech codes, kicking religious groups off campus, or adopting ideological litmus tests for certain programs, universities send a clear message to students:  “You can engage in any form of perversion you want as long as you think the way we tell you.” 

As President of the University of Wisconsin System, Dr. Reilly should be especially familiar with these problems.  As its institutions have been sued at least six times, the University of Wisconsin System embodies many of them and is well on its way to winning the ADF Center for Academic Freedom’s “Most Frequent Defendant” award:

• In 2000, UW-Madison lost the landmark Southworth case where the Supreme Court declared that universities can only charge student activity fees if they allocate those funds in a viewpoint neutral way.
• In 2005, UW-Eau Claire prohibited RAs from holding Bible studies in their dorm rooms, only to back down in the face of litigation.
• In 2006, UW-Superior kicked InterVarsity, a Christian ministry, off campus because it wanted to have Christian leaders.  Weeks later, UW-Madison did the same thing to the Roman Catholic Foundation because it allegedly only let Catholics become members and leaders.  Two lawsuits later, both groups returned to campus.
• Despite Southworth, UW-Madison continues to give funds to groups it favors (e.g., Sex Out Loud, Wisconsin Public Interest Research Group) and to deny funds to groups it disfavors (e.g., Roman Catholic Foundation, Conservatives for a Constructive Tomorrow (CFACT)).  Because it refused to comply with the clear requirements of the First Amendment, it became the target of two still-ongoing lawsuits, one from Roman Catholic Foundation in 2007 and another from CFACT in 2009.

Sadly, Dr. Reilly’s four pillars of insanity fail to address the real sources of frustration toward higher education:  an ivory tower mentality that derides and undermines values that most Americans cherish, silences any dissenting perspectives, engages in indoctrination rather than education, and openly disregards the elementary requirements of the Constitution.