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August 8, 2011

The Road to Censorship, Paved With Good Intentions

                                                     By David French

For more than a decade, universities have forced Christian student groups to fight a rather puzzling battle. In a campus environment where it’s assumed that Democratic student groups can reserve leadership for Democrats, environmentalist groups can be run by actual environmentalists, and socialist groups can have socialist leaders, Christian groups have been fighting for the right to Christian leadership. The conflict is between the civil liberties of Christian organizations and university nondiscrimination policies, which tend to prohibit “religious” discrimination but permit groups to discriminate on the basis of ideology and politics.

The first truly public fight occurred at Tufts University, where an openly lesbian woman attempted to lead Tufts Christian Fellowship, expressing disagreement not only with the group’s religious beliefs but also a desire to use her leadership platform to openly advocate her dissenting views. Not content to form her own group or to lead other Christian groups that promised to welcome her with open arms, she determined that every group on campus had to agree with her vision of sexual morality.

The Tufts Christian Fellowship ultimately prevailed in that fight, as did dozens of other Christian organizations who confronted similar challenges on campuses from coast to coast. More than thirty cases wound their way through federal courts. Many were settled, courts ruled for the Christian groups in most of those that did not settle, and one case -- against University of California, Hastings College of Law -- made it to the Supreme Court.

There’s an old saying: “Bad facts make bad law.” And in the Hastings case there was one very bad fact. The parties had stipulated that Hastings had a policy requiring every single student group to be open to “all comers.” In other words, it wasn’t just Christians who had to open their doors to non-Christian leadership, but white supremacists could lead African-American groups, hunters could lead PETA, and Democrats could lead Republicans. At the time of the oral argument, the Hastings policy appeared unique. No other public university was known to have a similar policy.

The resulting Supreme Court decision, that Hastings’ unique policy was lawful because it was “reasonable and viewpoint neutral,” was both narrow and troubling. Narrow because its holding applied to exactly one policy at one school; yet troubling because it ran roughshod over a fundamental precept of free association: that membership equals message. 

In the months that followed, the higher education establishment puzzled over the decision. What did it mean for all the universities not named Hastings? Did the Hastings decision even apply to conventional university nondiscrimination policies? Could a university allow a Democratic club to be Democrats-only but prohibit a Christian club from being Christians only?

Last week, the Ninth Circuit gave a partial answer. The Court applied the Hastings decision and affirmed the constitutionality of San Diego State University’s standard nondiscrimination policy, holding that it was -- like the all-comers policy at Hastings -- “reasonable and viewpoint neutral.”

The case arose after San Diego State refused to recognize a Christian fraternity and sorority because the groups allegedly discriminate on the basis of religion in membership and leadership (it’s difficult to be a Christian fraternity without Christian membership). At the same time, however, the school recognized and funded groups like the Immigrant Rights Coalition and San Diego Socialists, groups that (quite sensibly) exclude students who don’t agree with their purpose.

Setting aside for a moment whether a university policy that benefits one category of expressive association more than another can be reasonable, how can it be viewpoint neutral?

The Court’s answer was found in the school’s good intentions:

We accept plaintiffs’ assertion that San Diego State’s nondiscrimination policy incidentally burdens groups that wish to exclude others on the basis of religion, but does not burden groups that do not exclude or exclude on bases not prohibited by the policy. But this assertion is insufficient to prove viewpoint discrimination, because plaintiffs have put forth no evidence that San Diego State implemented its nondiscrimination policy for the purpose of suppressing plaintiffs’ viewpoint, or indeed of restricting any sort of expression at all.

According to this reasoning, since nondiscrimination laws are “intended to ensure equal access to the benefits of society” their actual discriminatory effect is irrelevant. In fact, the policy itself ensures that Christian and other religious groups do not have equal access. They -- and they alone -- have to give up vital free association rights if they wish to participate fully in campus life.

The Alliance Defense Fund (which represents the student group) may appeal the case, and there is a chance the Supreme Court will take its second look at student free association in two years. San Diego State’s policy -- unlike Hastings’ -- actually mirrors school policies around the country. 

If the Supreme Court does take the case, one hopes that it will take a step back and ask two fundamental questions: First, what conceivable state interest exists in denying religious groups free association rights granted to political or ideological groups? Second, can we permit the alleged good intentions of nondiscrimination policies to trump their real-world effects? 

As I wrote one year ago here in Minding the Campus, allowing religious groups to reserve leadership for fellow believers is a matter of common sense. Yet common sense is distressingly uncommon on our nation’s campuses.

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David French is a Senior Counsel at the American Center for Law and Justice.



Comments (1)

Ed Cutting:

There is one other aspect of this -- the rise of three different standards of behavioral expectations in academia. We have rules, but if what you did was for a "good" reason, the rules don't apply -- but if you are a conservative student, then they will throw the book at you for the most minor of offenses.

An example to explain this point: I was recently advised that if I ever again implied (just imply) that the Director of Residence Life had fascist tendencies -- in an email to persons other than him -- I would be facing penalties up to and possibly including expulsion for "harassing" this administrator. (This in an email from said Director, upon whom the irony was perhaps lost, his degree being in Counseling and not Political Science.)

By contrast, a UMPD Sergeant bluntly told me that Mike Adams deserved to have his speech disrupted because of his bad choice -- to have his topic be "Annoying Feminists." This in my 911 phone call pleading for uniformed officers to respond to a situation spiraling out of control with hoodlums wearing ski masks on the verge of mob violence. It was only when I made it clear that I would have members of the Faculty Senate ask the Chancellor why the UMPD did not respond to a visiting professor in distress (and everyone knowing I would & could) that they agreed to send two plainclothed officers, and that was only to shut down the event and get Adams safely out of it.

Yes, because his topic was politically incorrect, those seeking to protest him were exempt from not only campus regulations but the criminal code.

Those who advocate messages that are supported by administrators are permitted to do things that -- in the real world -- would land them in jail and quite quickly in jail. On the other hand, those who hold unpopular views (such as myself) are held to a standard that would be humorous were it not for the psychological toil that comes from living under the Sword of Damocles.

Students aren't stupid, and they know the consequences of saying things that the administration doesn't want to hear -- let alone doing things that the administration doesn't want done.

Hence it is a myth that all groups are open to all comers, that anyone can be the leader of any group. No sane conservative student would ever dream of taking over any group promoting a message that the administration supports because it is widely known what will happen to anyone crazy enough to try it.

And the term "crazy" is important here as well, one must remember that in the post Virginia-Tech world, the civil rights of students (particularly due process rights) are being shredded in hopes of preventing future tragedy. Throw in the political bias of the "helping professions" and you have a situation best summarized by one exasperated student who exclaimed to me that "they consider all conservatives to be crazy."

"Crazy" in the context of being the next Seung-Hui Cho -- an imminent threat to public safety. Quote the King James Bible in an email to an administrator and you will quickly find three campus cops at your door, looking for an excuse to cart you off to the psych ward. Stand on the front steps of the Student Union with a bullhorn and talk about shooting conservatives, targeting "center of mass" and all the rest, and this is all OK because it is protected free speech.

Students aren't stupid, they see all of this.

Everyone knows that there are two sets of rules -- that bad things will happen to anyone tampering with a display relative to domestic violence or Palestinian rights, but that it is perfectly acceptable to vandalize a display of American flags -- break them, stomp them into the mud, and toss them into the campus pond -- this is perfectly acceptable because of whose display it is...

Because she is collecting for the DAV, it is perfectly acceptable for a 120 lb woman to be told she will be dragged into the woods and raped, it is perfectly acceptable for two male graduate students to say this to her because they support the right causes and she doesn't.

Students aren't stupid, they see this stuff.

And in the few cases where the students are brave enough to make a stand notwithstanding the consequences, well we have the Minuteman Newspaper. While there was a national outcry about the campus police doing nothing while 200 copies were literally yanked from my arms, the point often overlooked is that the paper never printed again.

It was kicked out of its office by the administration, and a variety of things were done to dismantle the organization. Almost all of the students involved were forced to transfer to other colleges because of a combination of strange administrative issues that couldn't be resolved.

Students aren't stupid, when they are quietly told that none of the Minuteman folk are here anymore, they know what really happened and why it happened and they understand that it will happen to them if they break these unwritten rules....

And thus these "open to all" policies need to be seen for exactly what they are -- a means to dismantle and destroy any organization which expresses an unpopular viewpoint. If a group of hunters were to try to take over the animal rights organization here at UMass, I have no doubt that university would have the first one involuntarily committed to the psych ward (with the resultant lifetime loss of the right to own/possess a gun) and that would be a clear message to the rest.

Again, students aren't stupid and this "open to all" concept is nothing but a myth -- it is almost impossible to form a group promoting an unpopular viewpoint; and those few which exist, legacies of an earlier era of tolerance, are rapidly becoming neutered....

There was more free speech on the editorial pages of Pravda in the 1980s than there is today on most college campuses and that does not speak well to the future of American higher education...

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