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.

Answer:  How to regurgitate all of your professor’s anti-American opinions. 

Over at Minding the Campus, Candace de Russy has an interesting piece quoting verbatim from a recent test given to students in a sociology class at a public college.  The person who took the test received 100%, though perhaps he or she doesn’t know it, because the test was found on the ground.  It’s worth a click to look at the questions and answers the college is teaching these sociology students.  Here’s one to whet your appetite:

Question: How does the United States “steal” the resources of other (third world) [sic] countries?
Answer: We steal through exploitation. Our multinationals are aware that indigenous people in developing nations have been coaxed off their plots and forced into slums. Because it is lucrative, our multinationals offer them extremely low wage labor (sic) that cannot be turned down.

Now, ADF doesn’t take a position on political issues, but reading through the test, one is left with a better understanding of what students are learning in today’s public universities:  merely how to parrot back to their professors what the professors want to hear.  It’s no wonder the Julea Wards and Jonathan Lopezes of the world encounter hostility, even retaliation for expressing a different, Christian, point of view in class.  They are the unorthodox in a lockstep environment that was once known as the “marketplace of ideas.” 

Where will these students lead America in 20, 30 years?  As Dr. de Russy puts it:

This exam was part of the curriculum in a for-credit class at an accredited degree-granting institution. Introductory sociology courses like this one are frequently required, even for non-majors. A student who matriculates in this field of study will have nothing in the way of useful skills, but will be convinced that his country is rotten to the core, and that whites and males are evil.

China encourages its brightest students to study mathematics and engineering. India has become known as a hotbed of tech-savvy computer programmers. Meanwhile, the U.S. spends billions to teach postmodern, left-wing misinformation as objective “fact.”

It seems rather foolish to remain optimistic about the future of this nation when millions of its most “educated” are systematically being taught to loathe it.

If it weren’t bad enough that some colleges and universities think they need to tell students how to think and what to believe, one public university has actually tried to force students deemed overweight—by the university—to exercise.

Beginning with entering students in 2006, Lincoln University, a public university in Pennsylvania, instituted a requirement that any student with a Body Mass Index (BMI) of 30 or more would be required to take a physical fitness course called “Fitness for Life” in order to graduate.  The students’ BMI was not self-determined—rather, it was determined through a mandatory exam by college officials.  If a student had a BMI of 30 or higher, they were required to take the fitness course in order to graduate.

Student Tiana Lawson protested the requirement in The Lincolnian:

I didn’t come to Lincoln to be told that my weight is not in an acceptable range. I came here to get an education which, as a three time honor student, is something I have been doing quite well, despite the fact that I have a slightly high Body Mass Index.

Ms. Lawson’s editorial brought national attention to this policy, and it was thankfully repealed last week after the university received several complaints. 

This is one of the more ridiculous university policies I’ve ever heard of—it is condescending, paternalistic, and intrusive, as Temple University Law Professor David Kairys points out.  There is nothing wrong with encouraging students to adopt a healthy lifestyle, but this policy crosses the line.  As Ms. Lawson pointed out, the students are there to receive an education, not to have their personal characteristics scrutinized by a “nanny” university.

Given their recent attempts to control the bodies and exercise schedules of their students, it is not surprising that the school also apparently attempts to control student speech.  Lincoln University has a “red light” rating  from FIRE with regard to its policies affecting speech.  One policy prohibits “actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic.” 

The irony of prohibiting students from simply making a “comment” about someone’s characteristics but essentially calling some of its students too “fat” to graduate was apparently lost on Lincoln.  Let’s hope Lincoln’s speech code soon goes the way of the fitness requirement, and Lincoln students are as free to exercise their First Amendment rights as they are to choose whether they want to exercise.

Recently, Robert O’Neil commented in the Chronicle of Higher Education about the growing conflict between university anti-discrimination policies and the First Amendment rights of campus student groups to select their members according to the groups’ core religious beliefs. To his credit, Mr. O’Neil clearly grasps the critical importance of this issue. His commentary provides a detailed, thoughtful discussion of the current state of the matter in the federal court system and his call for clarification from the Supreme Court is well-taken.

Unfortunately though, Mr. O’Neil’s commentary concludes by providing a “how to” guide showing universities how they can apply their anti-discrimination laws to exclude religious groups from campus without violating the Constitution. While his suggestions that such policies be “clear” and administered “evenhanded[ly]” are not inherently problematic, his other proposals smack of a disdain for religious organizations that would not be tolerated if applied to other student organizations.

For example, Mr. O’Neil suggests that universities sanction student groups for the act of “refusing to sign . . . a nondiscrimination policy” rather than the “stated views of the organization” because conduct is less protected than speech. Under this formulation, student groups could hold to any religious beliefs they wanted . . . .as long as they signed away their right to act on those beliefs in the future. This proposal would render the students’ beliefs meaningless.

Similarly, Mr. O’Neil proposes that public universities utilize “creative thinking” by requiring religious groups to “acknowledge” the nondiscrimination policy, but only sanctioning them if and when an aggrieved student files a charge of discrimination. Again, such an arrangement provides no protection for the student groups whatsoever.

These and other of Mr. O’Neil’s proposals offer little in the way of real compromise. His implicit premise is clear: Universities and student organizations can get along if the student groups will forfeit any religious beliefs that do not comport with the university’s concept of “tolerance.” And by offering all the ways universities can implement their policies just shy of violating the constitution, Mr. O’Neil betrays an implicit—and sadly prevalent—bias against religious student organizations. Indeed, would Mr. O’Neil also advise universities how close they can come to the line of sexual harassment, racial discrimination, or sexual orientation discrimination? I think the answer is obvious.

As the Supreme Court has repeatedly held, public universities—like all government entities—need to give private organizations a wide berth for the exercise of First Amendment freedoms, rather than looking for ways to encroach as far as the Constitution will technically permit. Hopefully, university administrators will take this principle to heart, rather than skate on the constitutional thin ice provided by Mr. O’Neil. But the Supreme Court now has the chance to reaffirm this principle definitively as today it agreed to review the Ninth Circuit’s decision against the Christian Legal Society. May the First Amendment win.