Sharing your faith at Northwestern University just got a bit harder.  ADF was recently notified that last spring, Northwestern (NU) quietly released a list of “ethical guidelines” for religious student groups on campus.  The document, sent to campus ministry leaders, “articulate[s] the University’s expectations for student religious groups with regard to sharing their faith on campus and participation and leadership in student religious groups.”  As a former campus ministry leader, I wonder what caused NU to shut down religious liberties on campus. 

The guidelines require religious student groups to “maintain integrity in publicity” by clearly stating what group is sponsoring an event on campus.  This is not unusual.  But there may be more to the story. 

When I attended NU 10 years ago, there was a questionable off-campus group that tried to start a “Bible study” in one of the dorms.  However, the group was not interested in the Bible.  Instead, it tried to persuade students to drop out of school and devote themselves to the group.  Perhaps NU’s integrity in publicity rule is a result of that experience.  Yet it seems that NU is concerned about more than just that, as their policy goes far beyond “integrity in publicity.”    

NU also regulates when you can share your faith on campus and to whom you can share it.  Under the guise of “respecting privacy” in the dorms, NU now prohibits students from visiting other students to share their faith unless they’ve been invited to do so or they know that the person is interested in their faith.  Students may not distribute flyers, set up an information table, or even “visit” students who have left their dorm room doors open.  No more door-to-door ministry on campus.  You can’t even slip a flyer for an upcoming event under a student’s door without knowing they’d be interested in it first.  (Which begs the question—how do you know whether someone is interested in learning about your faith if you can’t share it with them to begin with??)

NU also instructs students to foster a climate of respect on campus, but informs students that “religious groups should not employ coercion, manipulation, harassment, or exploitation of any kind.”  Well, how do you define any of that?  NU doesn’t, and I suspect that this prohibition will land unsuspecting groups in hot water for simply sharing their faith on campus.  While NU is a private institution and not bound by the Constitution, as a major research university, it should behave much like it state-funded peers, especially when it promises all the same freedoms:  “the University encourages its students to discuss faith, values, ethics, spirituality, philosophy, and religion, and to share their beliefs with others.”  Here’s a free tip to my alma mater:  vague policies that threaten to punish speech do not encourage free discussion and the sharing of beliefs. 

Finally, NU dictates how religious student groups may select members and leaders.  For one, it requires the groups to be open to participation by any student.  But NU also says that groups may specify requirements for leadership positions and participating in religious rituals.  However, those requirements may not violate NU’s nondiscrimination policy, which prohibits discrimination based on “religion.”  In other words, NU religious groups are apparently not allowed to require that leaders adhere to the group’s moral or religious beliefs.  While NU is a private university, its policy flies in the face of controlling legal precedent that says requiring student groups to abide by a public university’s nondiscrimination policy in this manner violates the group’s First Amendment rights.  Not to mention that it flies in the face of common sense, as we could see Muslims as leaders of Christian groups, Jews as leaders of Muslim groups, and Christians as leaders of Jewish groups.  The result?  Student groups at the University of Wisconsin-Madison (another Big Ten school) are freer to speak and associate than religious student groups at NU.  That’s a shame. 

Messiah College, a Christ-centered educational institution in Pennsylvania, is being pressured to abandon its commitment to biblical sexual ethics.  A group of Messiah alumni created an online petition urging the College to abandon that part of its Community Covenant in which students are urged to avoid “homosexual behavior.”  The petition was created in the wake of an openly homosexual student’s decision to withdraw from the College after allegedly experiencing harassment.

According to news accounts, some of the alumni signing the petition have indicated that they will withhold financial support from the College unless it accedes to their demands.  Messiah College President Kim Phipps issued a statement regarding the situation in which she reaffirms the College’s commitment to biblical sexual ethics.

At the beginning of a new year, there is a valuable opportunity for reflection on the past year and what it means for the future.  While 2010 was certainly not without its major victories for free speech, it also suffered some challenges.    Here’s a quick look back at developments in ADF’s academic freedom cases in 2010 and what they mean for 2011:

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.

Charlotte Allen has posted a thoughtful essay about the aftermath of the Supreme Court’s unfortunate June decision in Christian Legal  Society v. Martinez (“More Wreckage from Ginsburg’s ‘Neutral’ Ruling,” September 7, 2010).  Very much worth a read.

That’s what a North Carolina court seems to be proposing.

Late last month, a state court of appeals held that North Carolina violated the state and federal constitutions by delegating the power to enforce state criminal law to Davidson College because Davidson has a connection to the Presbyterian Church (USA).

The court declared itself compelled by precedent to strike down the arrangement.  But it rather plainly encouraged the state supreme court to revisit controlling precedent and divide religious colleges into two categories — “religiously affiliated” ones (on whom the state could constitutionally confer benefits) and “pervasively sectarian” ones (on whom the state could not).  Davidson presumably would fall into the first category, whereas more Christ-centered institutions would fall into the second.

It is sometimes necessary for courts to determine whether a particular institution is “religious.”  For example, many laws banning discrimination on the basis of religion and “sexual orientation” exempt “religious” employers, making it necessary for a court to determine whether an employer accused of such discrimination is in fact a religious employer when it makes such a claim.

However, differentiating among religious entities based upon their degree of religiosity is a dangerous business.  It is unseemly at best, and unconstitutional at worst, for the government to go trolling through the particulars of a religious organization to determine whether it is “too religious.”   The distinction between “religiously affiliated” and “pervasively sectarian” was a prominent feature of the “bad old days” of Establishment Clause jurisprudence, when the Supreme Court used that distinction to require discrimination against religious entities that were too serious about their faith.  As a plurality of the Supreme Court has recognized, the phrase “pervasively sectarian” itself has its roots in 19th Century anti-Catholicism. 

Let us hope that the North Carolina Supreme Court does not accept the lower court’s invitation to turn the clock back and divide religious colleges into preferred sheep and disfavored goats.