In my recent post, Student Fee Flop, a student at the University of Pittsburgh raised an excellent point that I thought deserved further discussion. Basically, the student said that the Student Government Board (SGB)—not the University—was in error when the SGB refused to allocate student activity fee funds to Students for Life because of the campus group’s pro-life viewpoint. But even though the SGB allocates the student activity fees, the University itself violated the Constitution. How is this so?

When it comes to student activity fees, public universities engage in a constitutional “bargain,” so to speak. A university wishing to impose a mandatory student activity fee to fund student speech must affirmatively ensure that those fees are allocated in a viewpoint-neutral manner, regardless of who does the allocating. A university that desires to fund only certain student viewpoints must relinquish the mandatory nature of the student activity fee. Pitt has chosen the former route, and so it has elected to shoulder the constitutional duty to ensure that the fees are distributed without regard for the views of the students requesting such funds. It cannot avoid this duty by passing the buck to the SGA. In fact, Pitt breached this duty even before SFL was denied funding, as it imposed the student activity fee without safeguards in place to prevent viewpoint discrimination. As the Supreme Court held in Southworth:

Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected.

To remedy this constitutional deficiency, Pitt must establish clear, precise and exhaustive standards to guide the SGB’s allocation decisions and to eliminate the subjectivity currently inherent in the process. Until that time, Pitt will violate the Constitution every time it exacts the student activity fee, and student organizations’ First Amendment rights will remain subject to the whim of the SGB.

JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

Video: David French 2010 SFLA Conference: Knowing Your Rights on Campus

Click to watch: 2010 SFLA Conference: Knowing Your Rights on Campus

David French spoke at the 2010 Students for Life National Conference on January 23, 2010, in Washington, D.C. With a touch of humor and motivational thought,  he inspired more than 1,000 pro-life students to Speak Up for Life on their public university campus. He encouraged them with the knowledge that when they Speak Up and Stand Up, they are not alone. Behind them stands the strength of an Alliance.

http://www.speakupmovement.org
http://www.facebook.com/SpeakUpU
http://www.twitter.com/SpeakUpU

CLS v. Martinez Debate - ADF Attorney Greg Baylor, Professor Maureen Armour , Professor Linda Eads

Earlier this week, I participated in a debate regarding Christian Legal Society v. Martinez at Southern Methodist University’s Dedman School of Law in Dallas.  I argued that the U.S. Supreme Court should rule that Hastings College of the Law violated the Constitution when it refused to recognize its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.  SMU law professor Linda Eads energetically but graciously advocated a contrary result.

In my prepared remarks, I shared my belief that Hastings’ disagreement with CLS’s counter-cultural positions on religious doctrine and sexual morality was at least in part behind the school’s treatment of the CLS chapter.  Professor Eads essentially agreed with me, but then said something that truly surprised me – that Hastings should have the power to punish a counter-cultural group like CLS in order to promote “the culture it wants to foster.”

As I see it, a private educational institution, such a religious one, does have (and should have) the power to foster a certain kind of culture, free from the restraints the Constitution imposes upon government educational institutions.  But the First Amendment forbids the government from using its power to restrain the expressive activity of a group whose views contradict the government’s simply because of that disagreement.

My experience has been that many public university administrators fail to adequately grasp that the Constitution limits their power – something their  private school counterparts do not experience.  A greater understanding of this reality by America’s public colleges and universities would go a long way towards restoring freedom of speech on those campuses.

Free speech violations manifest themselves in many forms on America’s campuses. Perhaps one of the most frequent—and misunderstood violations—concerns the distribution of student activity fees.

In Rosenberger v. Rector & Visitors of the University of Virginia, and Board of Regents of University Wisconsin System v. Southworth, the Supreme Court explained that public universities requiring students to pay student activity fees must ensure that those fees are distributed in a viewpoint-neutral manner. In other words, the university cannot consider a student organization’s mission, goals, or views when allocating the student activity fee funds.

But all too often, universities ignore this constitutional command. Take, for example, the Student Government Board (SGB) at the University of Pittsburgh. The SGB initially denied Students For Life’s request for $1,515 to attend the National Students for Life Conference and the March for Life in Washington D.C. on the grounds that the group was “proselytizing” for its cause. The SGB President’s reasoning was telling:

“The fundamental purpose of this group is to promote an opinion, traditionally that of a religious perspective. Therefore I would disagree with the fundamental existence of the group, and so therefore, it was my opinion that this group is going to proselytize as a lobbying organization.”

Really? And other groups on campus don’t “promote an opinion?” At Pitt, there are thirty-two “Political & Advocacy” student organizations—not including religious groups—that promote a wide array of causes and beliefs and are eligible to receive student activity fee funding. Even the student abortion advocacy group, Campus Women’s Organization, is eligible to receive student activity funds.

The SGB ultimately reversed course after its discriminatory decision was publicized by the student newspaper. But this situation highlights the double-standard that public universities regularly apply to pro-life and religious speech. Indeed, even a Pitt campus activist who opposes SFL’s message recognized this:

I am disturbed by [the President’s] comment that “[...] I would disagree with the fundamental existence of the group”. On first glance, [the President] seems to be saying that he disagrees with the right to free exercise of religion, which seems unamerican to me. More to the point, his support of a denial of funds to this group appears to be censorious. His words, as included in this article, betray a disturbing lack of faith in democracy.

As a woman who volunteers as an escort for Pittsburgh’s Planned Parenthood (where pro-life students regularly protest) I believe all people have a right to voice their opinions publicly, whether this expression is termed “protesting”, “lobbying”, or “proselytizing”. . . .

I take it as an article of faith in the democratic process that all people may enter into the sloppy, messy conversation that is American politics. I believe that it is only through passionate conversation we as a nation can reach a better future. Censorship has no role to play in our democracy, even censorship cloaked as political correctness.

[The President] does pro-choice students no favors by denying pro-life students their voice. By hobbling Student’s for Life’s expression, [The President] is implying that pro-choice students are so ill-equiped to make their case that the Student Government Board must silence their opposition for them, rather than allow the two communities to debate freely.

This conference is a professional development opportunity, an opportunity for Students for Life to make its case heard in our nation’s capital, and a trip which has historically been supported by the Student Government Board. It is a show of bad faith that this group has been denied travel funds, and speaks against the Student Government Board’s commitment to democratic debate.

This student eloquently explains the proper, constitutional role public universities must take with respect to student activity fees, and student expression in general. It’s time university officials started listening.