[Paleopsych] CHE: Choosing Their Flock

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Choosing Their Flock
The Chronicle of Higher Education, 5.1.20
http://chronicle.com/weekly/v51/i21/21a03301.htm

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    Conservative Christian groups have forced colleges to allow them to
    bar gay students and nonbelievers. Some institutions are finally ready
    to fight back
    By BURTON BOLLAG
    In the fall of 2003, two law students at Ohio State University's main
    campus complained to the administration that the campus chapter of the
    Christian Legal Society, a student group, was violating the
    institution's nondiscrimination rules.
    Those rules stated that all officially recognized student
    organizations -- which are eligible to use meeting rooms and receive
    university funds -- could not discriminate on the basis of race,
    religion, sexual orientation, and a number of other factors.
    Recognized student groups each had to sign a form promising to respect
    those requirements.
    Yet the two students said the society would not let them join because
    one of them was not an evangelical Christian and the other was gay.
    The group said it would not accept students who did not share its
    religious views, or those who engaged in "homosexual conduct," which,
    it held, is condemned in the Bible.
    It is not clear whether the two students, whom the university declines
    to name, ever tried to join the group or had just inquired about its
    membership requirements. But they succeeded in making their point: The
    Christian group was thumbing its nose at campus rules. The
    administration agreed to investigate.
    The Christian group "couldn't hold this position with regards to
    race," asserts Cherish L. Cronmiller, co-president of the Outlaws, an
    association of gay law students at Ohio State. "Gays are unfortunately
    the last group on the totem pole."
    In the bitter controversy that followed, the Christian Legal Society
    sued Ohio State, charging that the university's nondiscrimination
    policy violated the group's First Amendment right to freedom of
    religion by forcing it to accept unwanted members.
    This past fall, without ever going to court, the group won a complete
    victory when Ohio State changed its policy to exempt student groups
    formed to promote "sincerely held religious beliefs."
    That pattern has been repeated at several dozen institutions in the
    last few years. In virtually every case, Christian groups have won the
    right to restrict membership or leadership to heterosexual students
    who share their evangelical religious beliefs.
    But now, after several years in which one college after another has
    caved when faced with an actual or threatened lawsuit, the dispute may
    have finally begun moving toward a resolution. Three of the four
    institutions with lawsuits pending against them -- Arizona State
    University at Tempe, the University of California's Hastings College
    of Law, and the University of North Carolina at Chapel Hillare
    determined to fight the legal challenge, despite considerable costs. A
    spokesman for the fourth, Pennsylvania State University at University
    Park, declined to speculate on its intentions.
    "We're definitely going to court on this matter," says Elise K.
    Traynum, general counsel for Hastings. "We think we can win it."
    Although Ms. Traynum concedes that the constitutional issues and legal
    precedents are, at best, unclear, she notes that several alumni have
    offered to help the institution fight the lawsuit on a pro bono basis.
    And a recent judicial decision seems to strengthen Hastings' position.
    In December a federal appeals court ruled that colleges may bar
    military recruiters since the military discriminates against gay
    people ([3]The Chronicle, December 10, 2004).
    David A. French, president of the Foundation for Individual Rights in
    Education, the Philadelphia-based watchdog group for free speech on
    college campuses, has provided legal advice to Christian student
    groups at several dozen institutions. "It looks like we're coming to
    the moment of truth on this," he says. "If three universities from
    widely divergent regions intend to contest this issue, it's very
    possible that within the next three or four years we might have some
    definitive rulings.
    "And if the courts of appeal are split in their decisions, that is
    typically seen as an invitation to the Supreme Court to act."
    Principles at Odds
    Meanwhile, the two sides continue battling. Proponents of
    nondiscrimination policies, including college administrators and
    gay-rights advocates, say Christian student groups that flout the
    rules should forfeit the subsidies that officially recognized groups
    receive.
    "Public funds should not be used to sponsor discrimination," says
    Elizabeth A. Seaton, deputy legal director of the Human Rights
    Campaign, the nation's largest gay and lesbian organization.
    "Recognized student groups should be held to the same standards on
    sexual orientation as they would be with regard to race or
    disability."
    Indeed, in almost all the cases, the Christian groups could have
    chosen to operate without official recognition, but they would have
    lost their financial support, preferential access to campus
    facilities, and the right to use their college's name.
    However, the groups and their supporters say there is a higher
    principle at stake. Requiring a Christian-student association to admit
    non-Christians or gay people, "would be like requiring a vegetarian
    group to admit meat eaters," asserts Jordan Lorence, a senior lawyer
    at the Alliance Defense Fund, which is based in Scottsdale, Ariz. "It
    would be like forcing the College Democrats to accept Republicans."
    In most of the campus disputes, the Christian student organizations
    have been assisted by outside Christian legal groups, the largest of
    which are the Alliance Defense Fund and the Christian Legal Society,
    of Annandale, Va. In at least eight of the cases, the student groups
    have sued, though no case has gone to trial.
    Two major developments helped set the stage for the recent spate of
    confrontations. Since the passage of the 1964 Civil Rights Act,
    colleges and universities have moved steadily to strengthen
    protections against discrimination on the basis of race, religion,
    sex, disability, and other factors. Hundreds of colleges have adopted
    their own nondiscrimination rules, and many institutions include
    "sexual orientation" on that list.
    At the same time, conservative Christian groups on campuses have been
    demanding the right to operate according to their own religious
    beliefs.
    A Thorny Issue
    Emotionally charged conflicts like the one at Ohio State have forced
    colleges to choose which of two basic principles is more important:
    freedom of religion, guaranteed by the First Amendment, or equal
    protection under the law, as established by the 14th Amendment.
    "There are times when constitutional rights come into conflict with
    one another," says Jeffrey Gamso, legal director of the American Civil
    Liberties Union of Ohio. The chapter's board has scheduled a meeting
    for February to discuss whether to get involved in the continuing
    dispute over the Ohio State case, and if so, which side to support.
    The ACLU is not alone in grappling with that question. William H.
    Hall, Ohio State's vice president for student affairs, who ended the
    lawsuit by granting the Christian group an exemption from the
    university's nondiscrimination rules, says the case was "one of the
    most difficult decisions I've had to make."
    He insists that the policy change was the result of a principled
    consideration of the issue. But he also concedes that the legal
    challenge forced the university to decide the issue faster than it
    would have otherwise. "When the lawsuit got filed," he says, "it
    curtailed the plans for an open debate that we had."
    Many Ohio State law professors are unhappy with Mr. Hall's decision.
    Half of them signed a petition asserting that the change of policy
    "will make our gay, lesbian, and bisexual students second-class
    citizens."
    Critics of the change are particularly concerned that the settlement
    exempts only religious student groups from nondiscrimination rules,
    which may represent an unconstitutional favoring of religious groups
    over nonreligious ones, says Ruth Colker, a professor of
    constitutional law at Ohio State. She predicts that the decision could
    lead to future lawsuits if nonreligious groups are denied recognition
    because they practice some form of discrimination.
    Those concerns do not sway David A. Goldberger, another
    constitutional-law professor at Ohio State. A former legal director of
    the American Civil Liberties Union of Illinois, Mr. Goldberger
    successfully represented a neo-Nazi group that had sued for the right
    to march in Skokie, Ill., in the late 1970s.
    Mr. Goldberger says he abhorred the neo-Nazis he defended, and he does
    not like the Christian Legal Society's views on gay people. But in
    both cases, he says, the legal principles he defended were paramount.
    At Ohio State, students who form an association for religious purposes
    should have the right to determine how they will worship and who may
    join them, he says.
    "I believe the role of the university is to be a forum for all views,
    beliefs, and perspectives," says Mr. Goldberger. "Students need to be
    exposed to differences as part of learning about tolerance."
    That view is shared by George M. Marsden, a professor of history at
    the University of Notre Dame and an expert on religion in America. "If
    you want to have religious pluralism," he asks, "does it make sense to
    force all groups to have the same norms of behavior?"
    For now the answer is complicated by the absence of a clear legal
    precedent. Two rulings by the U.S. Supreme Court bear only indirectly
    on the issue. In Widmar vs. Vincent, a 1981 case, the court ruled for
    the first time that a college -- the University of Missouri at Kansas
    City -- could not deny recognition to a Christian student group simply
    because it was religiously oriented.
    In Rosenberger vs. Rector and Visitors of the University of Virginia,
    a 1995 case, the court ruled that the institution could not deny funds
    to a Christian student newspaper on the basis of its religious
    content.
    Those two rulings put an end to the argument that the constitutional
    separation of church and state prevented public institutions from
    recognizing or supporting religious student groups.
    But "the absence of a slam-dunk, drop-dead precedent" as to whether
    institutions can require all recognized student groups to respect
    college nondiscrimination rules has kept the controversy alive, says
    Gregory S. Baylor, director of the Center for Law and Religious
    Freedom, a division of the Christian Legal Society.
    Striking A Balance?
    Mr. French, of FIRE, estimates that since 2000 there have been about
    50 cases in which colleges have first told a Christian student group
    it had to comply with nondiscrimination rules, only to relent after
    the group resisted. Nearly all of those cases have been at public
    universities.
    Typically, colleges fight attempts to weaken their nondiscrimination
    policies by arguing that the policies are necessary to protect the
    rights of all students. For instance, last August the University of
    North Carolina at Chapel Hill was sued by Alpha Iota Omega, a
    seven-member fraternity that the university refused to recognize
    because it bars non-Christian and gay students from joining.
    In a letter to FIRE, which is supporting the fraternity in its
    lawsuit, James C. Moeser, Chapel Hill's chancellor, wrote that the
    institution "strikes a proper balance between the interests of
    nondiscrimination and free association."
    He explained that under Chapel Hill's policy, student groups may not
    discriminate on the basis of "status" -- for example, requiring
    prospective members to be Presbyterian or male -- but may require them
    to support the group's aims. "So for example," wrote Mr. Moeser,
    "Baptist student groups are open to Presbyterian students ... and the
    Black Student Movement is open to white students."
    But groups may require prospective members to pass "an objective
    test," Mr. Moeser continued, to prove they support the group's
    mission, and may require their officers to "subscribe to the tenets of
    the organization."
    Mr. Moeser's reasoning did not convince the fraternity or its backers.
    The arguments are "meaningless," says Mr. French, of FIRE. "The
    University of North Carolina is saying the nondiscrimination policy
    really means something different than what it says on its face."
    A Key Distinction
    The flood of recent cases started with a well-publicized conflict at
    Tufts University, a private institution, in 2000. That year a student
    panel withdrew its recognition of the Tufts Christian Fellowship after
    the group told one of its members, Julie Catalano, a gay student, that
    she could not become an officer.
    Ms. Catalano, then a junior, had told the fellowship about her sexual
    orientation when she joined, in her freshman year. The group had
    accepted her and told her that prayer could make her a heterosexual.
    But after grappling with the issue for two years, she decided her
    sexual orientation was neither sinful nor changeable.
    Curtis Chang, area director for InterVarsity Christian Fellowship/USA,
    a national organization, helped the Tufts student group appeal the
    decision. In defending the group's policy, Mr. Chang used an argument
    that would be frequently repeated by other Christian groups.
    In an April 2000 letter to Bruce H. Reitman, then Tufts' acting dean
    of students, Mr. Chang wrote that the Christian group "does not and
    has never discriminated on the basis of sexual orientation." Ms.
    Catalano, he explained, was penalized not for being gay, but for
    asserting that her being gay was an acceptable lifestyle for a
    Christian.
    A Tufts review panel nullified the earlier decision, which it said had
    been too hasty, and passed the case back to the original student
    panel. In a rather muddled decision, that body then re-recognized the
    Christian student group, but said it must avoid future confrontations.
    FIRE's Mr. French says the case woke campuses up to the issue.
    Christian student groups began checking whether they had been
    unwittingly signing on to nondiscrimination policies they did not
    support, and colleges started looking at whether any campus groups
    were violating those rules.
    Sensing an opportunity to rectify what they had considered unfair
    treatment of Christian student associations, evangelical advocacy
    groups urged students to demand their rights. In 2003 the Alliance
    Defense Fund ran half-page ads in student newspapers at five colleges.
    The headline read, "Are You Experiencing Anti-Christian Bigotry on
    Campus?" The text began, "In the name of 'diversity' and 'tolerance,'
    schools are systematically violating the rights of students who follow
    Jesus."
    At two of the institutions, Ohio State University and the University
    of Minnesota-Twin Cities, Christian legal groups soon filed lawsuits
    on behalf of student groups. Both institutions ultimately agreed to
    change their rules to allow religious groups to discriminate in
    admitting members.
    At some universities, including Minnesota, an unofficial policy was
    already in place under which conservative Christian groups signed the
    annual commitment to honor campus nondiscrimination rules, but were
    allowed informally to choose members or officers according to their
    own principles.
    Evangelical activists warned that such an arrangement was dangerous
    because it could be withdrawn at any time, leaving the groups
    potentially vulnerable. "Many of these Christian groups feel they're
    targets for infiltration and takeover," says Mr. Lorence, of the
    Alliance Defense Fund. "That's why we're filing these lawsuits."
    Supporters of campus nondiscrimination policies say such problems have
    never come up. Indeed Nancy E. Tribbensee, Arizona State's associate
    vice president for legal affairs, goes further, arguing that it is a
    good thing for white students to have the right to join a
    black-student association, and for Jewish students to be able to join
    a Christian group.
    "One of the values of university student organizations," she says, "is
    to allow students to join groups they may not fully agree with and be
    exposed to new ideas."
    Ms. Tribbensee says Arizona State will stand up for that principle,
    and intends to fight the lawsuit filed against it.
    But until the U.S. Supreme Court rules on the issue, the conflict
    appears likely to spread to more campuses. A new publicity campaign by
    the Alliance Defense Fund calls on Christian students to oppose
    nondiscrimination policies. The group's brochure states, "Americans
    will no longer tolerate the systematic stripping away of our
    constitutional rights on college campuses."
    'We Still Care About Each Other'
    Despite tensions, a few students on opposing sides of the issue are
    trying to overcome their differences.
    After Ohio State's decision in the fall, members of the Outlaws, the
    association of gay law students on the campus, were angry. The group
    sold T-shirts and buttons protesting, "My tuition funds
    discrimination." There were also ugly incidents of name-calling
    between them and members of the Christian Legal Society.
    But even before the university changed its policy, Ms. Cronmiller, the
    Outlaws' current co-president, had reached out to the leader of the
    Christian group. When she won a cup of coffee with a law professor at
    a fund-raising auction last April, for instance, she invited Alexis V.
    Andrews, president of the local Christian Legal Society, to join them.
    Ms. Andrews accepted.
    "We just decided we weren't going to let this be taken out of our
    hands and turned into a gay-versus-Christian issue," Ms. Cronmiller
    says.
    Ms. Andrews says she considers Ms. Cronmiller's lifestyle "sinful."
    Nonetheless, the two women have been trying to build a good
    relationship. To that end, Ms. Andrews says, she plans to visit Ms.
    Cronmiller's Jewish congregation. "We can disagree," says Ms. Andrews,
    "but we still care about each other."
    The two women are also trying to organize joint charitable and social
    events that would allow members of their respective organizations to
    get to know each other.
    Yet both of them say they haven't gotten very far. Most of the
    students in each group consider their counterparts little better than
    the incarnation of evil on campus.