Today, Alliance Defending Freedom is launching a new tool with important information and up to date information about your rights on  campus. The Speak Up University Newsletter will cover a range of topics relevant to college students and their parents, as well as faculty and staff, keeping you informed about your constitutional right to Speak Up.

Take a look at the first newsletter here, and sign up to receive the newsletter in your inbox each month.

The University of California-Davis has an interesting twist on its nondiscrimination rule.  In its definition of “religious discrimination” UC Davis goes out of its way to make clear that the policy protects all students regardless of their religious beliefs … unless those beliefs are Christian.  Then you’re on your own.  Here’s the text:

Religious/Spiritual Discrimination – The loss of power and privilege to those who do not practice the dominant culture’s religion. In the United States, this is institutionalized oppressions toward those who are not Christian. http://www.telladf.org/userdocs/UC-DavisDefinition.pdf (emphasis added).

Thus, as today’s letter from ADF allied attorney Tim Swickard on behalf of over two dozen UC Davis students points out, at UC Davis “it would be an affirmative defense to a charge of religious discrimination for the perpetrator to prove that the victim was a Christian.”

To be sure, prohibiting atheist or Muslim student organizations from denying a leadership position to an evangelical Christian would surely violate those organizations’ First Amendment rights and the letter expressly urges the school to protect Christian students as it does other faiths but to apply the policy in a rational manner that protects the First Amendment rights of others.  But a complete exclusion of Christians from the schools’ protections completely undermines any supposed purpose of a nondiscrimination rule.  By protecting some religions and then excluding others (Christians) from its protection, UC Davis manages to violate most of the First Amendment’s clauses and the Equal Protection Clause.

But the constitutionality of this discriminatory practice is probably not in dispute to any rational person.  The better question then is how UC Davis arrived at this point and whether it arrived here alone or this is emblematic of a mentality on other campuses around the country.  First, the facts.  UC Davis asserts that Christianity is “the dominant culture’s religion” in the United States.  This might be a good point to recall during the next debate with a UC Davis law professor since it appears that the school has concluded that the United States is a Christian nation.  Of course, while the majority of Americans will self-identify as Christians, this should not be taken to mean that a majority of Americans truly hold a Biblical worldview or even will agree with a set of basic Christian doctrines, like the Nicene Creed.  Self-identification does not a Christian make.

And to narrow this down to the University context, the idea that Christianity is the “dominant culture’s religion” on typical campuses – or UC Davis in particular – is absurd.  Indeed, one study has demonstrated that over half of university professors admit [See pages 79-81] that they would have negative feelings about a student solely because she is an evangelical Christian.  Catholics and Mormons did not fare much better and Muslim and atheist students were viewed much more favorably, but evangelicals were the only group that over half of university professors admitted to not liking solely because of their religious beliefs.   So UC Davis’s idea that Christians are somehow a dominant faith on its campus and without need of any protection from discrimination is just counterfactual.

Universities spend millions of dollars on “diversity” programs, “safe zones” and even entire departments devoted to ensuring that students of various sexual orientations, races, ethnicities, etc. are made to feel comfortable on campus or even have advisory councils, like UC Davis’s Campus Council on Community and Diversity, to ensure their concerns are heard by the University.  But on at least many public university campuses Christian students often feel as though they aren’t welcome.  This shouldn’t be a surprise.  Christ tells us up front that “[Y]ou will be hated by all because of My name.” Luke 21:17 (New American Standard Version).  Christians, on campus and elsewhere, should wonder what they’re doing wrong if they are universally loved.  But this eternal truth provides no excuse for a public university to facilitate discrimination against Christian students.

While UC Davis is the first University I’m aware of to openly state in writing that its nondiscrimination rules are not intended to protect Christian students, one could not fault Christian students on many campuses for having the idea that this is the de facto rule on their campuses too.  Even if UC Davis quickly backtracks, as I suspect it will, on this incredibly offensive policy in response to Mr. Swickard’s letter, my hope is that this will provide a good opportunity to dialogue about the environment on this and other campuses for Christian students.

ADF Press Release

UPDATE:  Fox News is reporting that the University has already changed the policy.  The university is to be commended for moving so quickly.  In the last month, we’ve seen several universities move with unusual speed to correct unconstitutional or unlawful policies.  Is this a sign of increased respect for the First Amendment?

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The U.S. Department of Education issued a “Dear Colleague” letter Tuesday which reportedly reinforces the Department’s commitment to curb bullying through federal harassment laws.  However, the letter confuses earlier Department policy, provides harassment examples that run into protected speech, and fails to adequately remind administrators of their First Amendment obligations. 

The letter is addressed to primary and secondary school administrators.  Yet the Department also makes clear that “the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by [Office for Civil Rights].”

The letter defines harassment adequately:  “conduct [that] is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school.”  (Actually, this definition is a bit broader than how the Supreme Court defined harassment in Davis v. Monroe County Board of Education.)  But the letter’s examples of harassment intrude on the First Amendment’s protected sphere.  The letter states that harassment includes “verbal acts and name-calling, graphic and written statements, which may include use of cell phones or the Internet.” 

University administrators will read these examples and no doubt expand their harassment speech codes accordingly.  In fact, the letter encourages them to do so:  “An effective response also may need to include the issuance of new policies against harassment….”  Those policies will not be limited to campus speech, but will now seek to control what college students can post on Facebook, blogs, emails and text to each other.  By providing these expansive definitions of harassment, the Department invites college administrators to violate students’ First Amendment rights.   

At the end of the letter, after you read through these definitions and examples, you learn that the Department issued another “Dear Colleague” letter in 2003 that addresses the balance between harassment law and free speech.  However, this week’s letter does nothing to reassert or reinvigorate that balance, even in the face of recent federal court decisions striking down college harassment policies.  The letters are quite different in their tone and concern for free speech.  The 2003 letter reminds universities of their constitutional obligations: 

Some colleges and universities have interpreted OCR’s prohibition of “harassment” as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Thus, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age.

That acurately sums up federal law as interpreted by the courts.  This week’s letter does not.  Instead it encourages broadening the scope of harassment laws in the face of court precedent limiting their scope on university campuses.  This letter will lead to more litigation, and you can thank the Department of Education for it.

Yesterday morning, the Supreme Court issued seven opinions, but Christian Legal Society v. Martinez was not among them.  The CLS case is now the only case from the Court’s April sitting that has not been decided.  There are still four outstanding decisions from cases heard this term—CLS, Bilski v. Kappos (patents), Free Enterprise Fund v. Public Company Accounting Oversight Board (Sarbanes-Oxley and separation of powers), and  McDonald v. City of Chicago (Second Amendment) .  The Court is expected to hand down the remaining decisions on Monday morning beginning at 10:00 a.m. EDT. 

We have previously engaged in a couple of games of Supreme Court Bingo to guess who will be writing the CLS opinion.  Jordan predicted that it would be Chief Justice Roberts, Justice Ginsburg, or Justice Stevens, as none of them had written an opinion from the April sitting. 

Now that we have more information, we can fill in our “bingo card” a little more, but the outcome is still far from certain.  Chief Justice Roberts wrote the 8-1 majority decision in Doe v. Reed, a case litigated by ADF ally Jim Bopp.  That means that the only two justices who have not written an opinion from the April sitting are Justice Ginsburg and retiring Justice Stevens.  It is not unheard of for a justice to write two opinions from one sitting–Justice Stevens wrote two opinions from the March sitting, for example–but the Court generally tries to distribute the burden of opinion writing evenly. 

It will be interesting to see who writes the CLS opinion–if it is Justice Stevens, he could be issuing his very last opinion as a Supreme Court justice, and given that he only asked one question during the oral argument, it is hard to predict what the outcome would be unless one looks at his prior opinions involving religious speakers.  (He has not frequently been favorable to religious freedom.)   Justice Ginsburg did not seem sympathetic to CLS during oral argument.  (Check here and here for analysis of the oral argument).  But it is also possible that another justice could be writing the opinion. 

ADF lawyers Greg Baylor, Jordan Lorence, and Casey Mattox will be present in the courtroom on Monday to hear the proceedings.  Please continue to pray for a just outcome in this case, and check back here on Monday morning for an update.  We will have coverage and commentary starting within 30 minutes of the opinion being issued.

It seems Peralta Community College District has not learned its lesson.  On the heels of settling an unfathomable case involving the punishment of two students who dared pray for an ill faculty member, Peralta is considering a new speech zone policy.  Our readers know that while creating a speech zone sounds supportive of the First Amendment, it is actually discouraging because it limits student speech and can result in the absurd—relegating student speech to ten square feet of campus.

Although Peralta has not published the proposed policy yet, reports claim that the proposed speech zone will limit free speech to the main quad on three campuses and to a student lounge on a fourth campus.  According to the Contra Costa Times:

The proposed rules handed out at Wednesday’s meeting would limit speakers to the main quads at Laney, Merritt College and the College of Alameda, and to a student lounge at Berkeley City College. Speakers would be required to reserve the space at least three business days in advance, and all fliers posted on campus bulletin boards would need to include English translations.

Although the proposal notes that administrators may not prevent someone from speaking based on the subject of their speech, it prohibits “disruptive behavior” and the “open and persistent defiance of the authority” of college employees. It also would ban obscenity, profanity and amplification.

I am surprised Peralta is taking this action at the same time that Southwestern College in San Diego is taking heat for a similar proposed policy (interestingly, both colleges label their proposals “Policy 5550”).  Southwestern suspended three professors last year for speaking outside the “free speech patio.”

Even though community colleges throughout California are experimenting with speech zone policies, California law defines community college campuses as civic centers “where citizens . . . may meet and discuss . . . any subjects and questions which in their judgment appertain to the educational, political, economic, artistic, and moral interests of the citizens of the communities in which they reside.”  Under this law and many others, these colleges are poised for a legal fight.  So I offer this, any college counsel that wants to avoid a lawsuit over these policies is welcome to contact us.  Do the right thing, and stop the spread of the speech zone malady.