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Analyzing Common Problems with University Policies

Over at The Torch, FIRE’s Samantha Harris has been writing an excellent series on various threats to liberty on public universities campuses.  Much like our series a few years ago on equal access and student fees, not only does Harris discuss the variety of threats to freedom, she also flexes the legal muscle on why these policies must be removed.  Several of Harris’ posts include examples from Alliance Defending Freedom cases, like College Republicans at San Francisco State University v. Reed (a speech code case) and Roberts v. Haragan (a speech zone case).  Here are links to each part of the series:

The Problem with Mandating Civility

Misunderstanding ‘Harassment’

Free Speech Rights Must Extend to Students’ Online Expression

Posting Policies Frequently Restrict Student Expression

Misunderstanding ‘Time, Place, and Manner’ Restrictions

Alliance Defending Freedom, like FIRE, is working to eliminate these unconstitutional policies, but can do so only with your help.  Contact us if you think your university might be unfairly restricting your rights on campus.


ADF Senior Legal Counsel - University Project

What a difference a viewpoint makes

Posted on January 28th, 2012 Freedom of Speech | No Comments »

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.



ADF Senior Legal Counsel - University Project

UConn Under Fire for Encouraging Fans to Say the Pledge of Allegiance

Posted on December 7th, 2011 Freedom of Speech | No Comments »

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.


ADF Senior Legal Counsel - University Project

At UW-Madison: Perversion is in; Prayer is out.

Posted on July 29th, 2011 Culture | 6 Comments »

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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ADF Senior Legal Counsel - University Project

Stanford Law School Debates Whether The Constitution’s Protection for Interracial Marriages Compels Legalizing Same Sex Marriage

Posted on May 11th, 2011 Culture,marriage,Uncategorized | 10 Comments »

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.


ADF Senior Vice President; Senior Counsel - University Project

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