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.

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.

Over the past several years, ADF has litigated many student activity fee cases against the University of Wisconsin-Madison.  Student activity fees are usually mandatory fees that students must pay in addition to tuition.  Most universities collect these fees and allocate a portion of them back to student groups for various types of activities and events.  (For a primmer on student activity fees, see my prior posts.)

Well, you might be asking:  What do student groups do with the money?  Recently, ADF represented the Badger Catholic student group at UW-Madison.  Badger Catholic used student fees for leadership training, speakers, large group events, and retreats.  But UW-Madison told Badger Catholic it could not use fees to fund any activity that included prayer, worship, or religious advocacy.  Eventually, the U.S. Court of Appeals for the Seventh Circuit told UW-Madison to knock it off.  (After all, it was violating Badger Catholic’s First Amendment rights.)

Interestingly, at the same time that UW-Madison was telling Badger Catholic that prayer is forbidden, it was allocating nearly $100,000 a year to a student group named Sex Out Loud.  That group used mandatory student activity fees to purchase a variety of “equipment” that I can only classify as downright vulgar.  (***Warning: the link describes obscene sex products.***)  Among the objects Sex Out Loud purchased to fill its “Pleasure Boxes,” were pamphlets from Planned Parenthood.  I guess the group’s message was clear:  Engage in your licentiousness and then murder the result.

This is just one example of many.  But it is emblematic of what students face on public university campuses today.  Perversion is in, but prayer is out.

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Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong). 

What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.   Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position.  It does not.  I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case.  The decision doesn’t help them.  So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:

The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court.   That interracial marriage was OK because it did not include any white people.  The obviously uneven application of the law based on race is why the Supreme Court struck it down.  These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc.  But that’s not what the Virginia law struck down by the Supreme Court said.  That hypothetical does not provide any precedent for striking down a regular marriage law.  Even if the law did say that, it’s not important, because race is different from sex.  Only one man and one woman can produce a child, and the parents can be of any race.  Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children.  What is critical is having one man and one woman.  The parents’ race is irrelevant in their ability to reproduce.   It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.

Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria.  For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age.  Race has not been a universally-accepted part of the definition of marriage.  For example, not all states banned white people from having an interracial marriage.  Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites.  The existence of miscegenation laws is a sordid historical fact.  The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.

Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.

I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.

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.