The double standard for student speech is playing out again at UC Davis.  The Sacramento Bee reports that Occupy UC Davis has moved its operations from “a tent encampment” (seriously, who likes camping for months on end?) to the vacant Cross Cultural Center on campus, and plan to occupy it permanently.  In response, the UC Davis sent in campus police and arrested the students for trespassing, right?  Wrong.  The Bee reports:

Campus officials are taking a wait-and-see approach.

“We’ll be monitoring it and making decision based on the overall best interest of the university,” said Claudia Morain, a spokeswoman for the university.

If this had been a Christian or pro-life student group, you can be sure that campus police would have moved in immediately.  Universities barely let Christian and pro-life students hold signs or hand out leaflets on campus without threatening arrest, let alone occupy an entire building.

Maybe one day campus administrators will wait-and-see that Christian and pro-life speech isn’t so bad after all.

The ADF Center for Academic Freedom joined a broad coalition of organizations today calling on the U.S. Department of Education to clarify when colleges may and may not investigate and punish student “harassment.”  The letter, written by our friends at FIRE, is available here.

We’ve told you before how to spot a speech code, the majority of which involve anti-harassment policies.  And these unconstitutional policies are nothing new.  So why did FIRE send today’s letter?  FIRE’s president, Greg Lukianoff, explains in today’s Washington Post:

[Last year, the Department of Education Office of Civil Rights] issued a 19-page letter in April dictating to colleges the procedures they must follow in sexual harassment and assault cases. Among its many troubling points, including a requirement that sexual harassment cases be adjudicated using the lowest possible standard of evidence allowable in court, is the fact that the letter makes no mention of the First Amendment or free speech. This ignores the role that vague and broad definitions of harassment have played in justifying campus speech codes and censorship over the past few decades. By mandating so many procedural steps colleges must take to respond to allegations of sexual harassment while simultaneously failing to mandate a consistent, limited and constitutional definition of harassment, the OCR encourages those on campus who are already inclined to use such codes to punish speech they simply dislike.

Rather than proffer shifting rules, the OCR should end the threat of harassment-based campus speech codes once and for all. The Supreme Court offered its only guidance on the thorny issue of student-on-student harassment in the 1999 case Davis v. Monroe County Board of Education. The justices recognized the necessity of carefully defining what constitutes “harassment” in the educational context, lest everyday interactions be rendered a federal offense. The court defined harassment as discriminatory conduct, directed at an individual, that is “so severe, pervasive, and objectively offensive” that “victim-students are effectively denied equal access to an institution’s resources and opportunities.”

This definition, if applied fairly, poses little threat to free speech and effectively prohibits real harassment.

We hope the OCR takes notice and works to protect student free speech on campus.

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.

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.