Paved with Good Intentions: When College “All-Comers” Policies Tread on the First Amendment Rights of Religious Students’ Organizations by Jennifer Huddleston

Paved with Good Intentions: When College “All-Comers” Policies Tread on the First Amendment Rights of  Religious Students’ Organizations

by Jennifer Huddleston

Over 45 years ago, the Supreme Court stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1] Yet on today’s increasingly college and university campuses, well-meaning administrators can find that their good intentions to promote inclusion and diversity negatively impact  religiously based student organizations and violate students’ constitutional rights to freedom of speech, expression, and association.

Many colleges and universities, in an effort to promote inclusion on campus, have instituted an “all-comers” policies for all officially recognized student organizations which extend beyond normal anti-discrimination policies and require that all organizations and leadership opportunities be open to all students.[2] Typically organizations must be officially recognized to receive funding from student activities or similar fees.[3] Some college and universities have carved out alternative recognition procedures for religious groups.[4] Unfortunately, many colleges and universities do not create such alternatives until religious or values-based organizations object to the violation of their rights or do not create them at all.  For example, InterVarsity Christian Fellowship has been derecognized at more than 23 college and university campuses for their refusal to adhere to an all-comers policy by requiring leaders to adhere to the organization’s statement of faith.[5] When such organizations are derecognized or cannot gain recognition from the college or university due to their beliefs students can become concerned over their ability to express religious based opinions and that the college or university is perpetuating negative stereotypes of those who hold sincere religious beliefs.[6]

The results of legal action by student organizations efforts to restore their religious freedom have been mixed.[7] In 2006, the Seventh Circuit found for the Christian Legal Society at Southern Illinois University when the students challenged the university’s all-comers policy regarding their requirements for leaders and voting members on the grounds that the policy violated their First Amendment freedoms of association, expression, and religion.[8] The Seventh Circuit held that student organizations are protected by the First Amendment’s protection of expressive association from “forced inclusion” by university policies.[9] The Seventh Circuit clearly felt that the student organization’s first amendment claims were in the public interest and the students had the right to freedom of association and expression of their beliefs through the organization.[10] However, the optimism of this initial victory for students’ First Amendment rights would be short lived.

Despite the Seventh Circuit’s protection of expressive association and religious liberty in Christian Legal Society v. Walker, colleges and universities continued to pass and enforce all-comers policies that did not contain exceptions to protect religious organizations. In 2010, the Supreme Court held in Christian Legal Society of the Univ. of Cal. v. Martinez that university all comers policies did not violate a religious student organization’s rights to freedom of religion, association, or speech.[11] The Court held that the University had an interest in promoting diversity and inclusion in its student organizations through its administrative policies and because of the nature of the resources still available to the Christian Legal Society without being a recognized student organization, the students’ First Amendment rights were not violated by the university policy.[12] Justice Alito noted in his dissenting opinion his concern that if this jurisprudence continues, “the First Amendment rights of students at public universities will be at the mercy of the administrators.”[13] As colleges and universities have continued to pass and strictly enforce such “all-comers” policies, it appears the dissent’s concern has been proven correct.

In the wake of Christian Legal Society of the Univ. of Cal. v. Martinez, some state legislatures intervened to protect students First Amendment freedoms where the Court had failed to do so by passing legislation prohibiting colleges and universities from denying recognition to student religious or political organizations on the basis of their requiring leaders to adhere to specific values or beliefs.[14] Unfortunately such remedies are typically reactive occurring only after religious students’ First Amendment rights have been violated my overzealous administrators and students have been forced to choose between recognition by the school or their values and beliefs. Additionally, relying on state legislatures is an insufficient alternative to insure student organization’s rights since it protects only the students at universities in that state. Even when the members of the state legislature are sympathetic to students such legislation is likely to be pushed aside for issues that are perceived as more pressing or may end up being vetoed by the governor. For example a new strict enforcement of an “all-comers policy” for student organizations at Vanderbilt University in 2012, forced a coalition of 11 Christian student groups off-campus after the University refused to approve their club constitutions unless they removed moral requirements for leadership positions.[15] Students and alumni lobbied the university to provide an exception or alternative route for such organizations, however, the administration refused to consider it.[16] The Tennessee Legislature attempted to remedy the situation by overwhelmingly passing a bill that would require the university to provide an exception that allowed the student organizations to maintain and express their values and beliefs in the selection of their leaders, but the bill was veto by the governor.[17] As the Vanderbilt example illustrates, the legislative process provides an insufficient remedy for the violation of students’ rights by colleges and universities administrative, due to the reactive nature of such action and the real risk that such action may be unsuccessful. Furthermore, it is likely to be more difficult in enforcing such policies to effectively in protect students at private colleges and universities, such as Vanderbilt.

When student viewpoints are stifled, colleges and universities the pluralism and diversity that all-comers policies are designed to encourage.[18] The loss of students’ First Amendment rights by requiring organizations to choose between recognition and their values is an unfair bargain for students at the hands of university administrators despite their good intentions and legitimate goals.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[2] “What’s Wrong with an ‘All-Comers’ Policy?,” Christian Legal Society, http://www.clsnet.org/page.aspx?pid=555.

[3] See “FIRE’s Guide to Student Fees, Funding, and Legal Equality,” https://www.thefire.org/fire-guides/fires-guide-to-student-fees-funding-and-legal-equality-on-campus/fires-guide-to-student-fees-funding-and-legal-equality-on-campus-full-text/.

[4] See Registration Guidelines for Student Organizations at Ohio State, 10-11, http://ohiounion.osu.edu/posts/documents/doc_4162014_183039258.pdf, 15 April 2014.

[5] Christopher Shea, “Controversy Heats Up over Religious Groups on Campus,” Chronicle of Higher Education (6 October 2014), http://chronicle.com/article/Controversy-Heats-Up-Over/149201.

[6] Shea, supra note 5.

[7] Shea, supra note 5.

[8] Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).

[9] Id. at 861.

[10] Id.

[11]561 U.S. 661 (2010).

[12] Id.

[13] Id. at 718.

[14] Harry Painter, “The Supreme Court endangered student groups, but some states are coming to the rescue,” The Pope Center for Higher Education (1 October 2014), http://www.popecenter.org/commentaries/article.html?id=3077.

[15] “Vanderbilt University: Refusal to Approve Constitutions of Student Groups that Require Leaders to Share Beliefs,” The FIRE, https://www.thefire.org/cases/vanderbilt-university-refusal-to-approve-constitutions-of-student-groups-that-require-leaders-to-share-beliefs/.

[16] Pierce Greenberg, “Students, alumni, state legislators press VU on ‘all-comers’ policy,” City Paper (18 April 2012), http://nashvillecitypaper.com/content/city-news/students-alumni-state-legislators-press-vu-all-comers-policy.

[17] Lucas L. Johnson II, “Haslam vetoes college discrimination policy bill,” The Oakridger (2 May 2012), http://www.oakridger.com/article/20120502/NEWS/305029993.

[18] Karen Swallow Prior, “What’s Lost in Not Recognizing Campus Religious Groups,” The Atlantic (21 Sept. 2014), http://www.theatlantic.com/education/archive/2014/09/the-danger-of-not-recognizing-campus-religious-groups/380541/.

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