[Paleopsych] Chronicle Colloquy: Religious freedom vs. civil rights
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Mon Jan 31 15:33:17 UTC 2005
Religious freedom vs. civil rights
The Chronicle: Colloquy Live Transcript
Thursday, January 27, at 1 p.m., U.S. Eastern time
At dozens of colleges the filing -- or the mere threat -- of a lawsuit
has persuaded officials to exempt Christian student groups from campus
nondiscrimination rules. But observers say a judicial showdown may
finally be coming.
Lawsuits pending against four public institutions claim that their
nondiscrimination policies violate the First Amendment rights of
Christian student groups. The four are: Arizona State University at
Tempe, Pennsylvania State University at University Park, the
University of California's Hastings College of Law, and the University
of North Carolina at Chapel Hill. Unlike other institutions, which
gave in and exempted religious student groups from nondiscrimination
rules, most of the four institutions say they will fight the
That means that federal courts may finally rule on the dispute. And if
they are split in their decisions, the Supreme Court could take up the
Observers say the controversy presents a thorny problem because it
pits two constitutionally protected rights against one another:
freedom of religion, guaranteed by the First Amendment, and equal
protection under the law, as established by the 14th Amendment. The
American Civil Liberties Union has not taken a position on the cases.
The group's Ohio chapter is set to discuss the issue shortly. It must
decide whether it wants to get involved in a dispute at Ohio State
University and, if so, on which side.
Should student groups be required to respect campus nondiscrimination
rules? Conservative Christian groups say they should be allowed to
restrict membership to heterosexual students who share their faith.
But others say that if groups discriminate, they should not receive
funds and other support from their colleges. Which should take
precedence -- religious freedom or protection from discrimination? Is
there any way to reconcile the two concepts? How will the courts rule
in these difficult cases?
Choosing Their Flock (1/28/2005)
David A. French is president of the Foundation for Individual Rights
in Education, a Philadelphia-based watchdog group for free speech on
college campuses. Mr. French, a lawyer, taught for two years at
Cornell University's Law School. He and FIRE have provided legal
advice to Christian student groups at several dozen institutions.
A transcript of the chat follows.
Burton Bollag (Moderator):
Hello, I am The Chronicle's religion reporter, Burton Bollag, and
I'll be moderating today's online discussion. Let's begin.
I would like to thank the Chronicle for hosting this Colloquy. The
issues we will discuss today involve not so much a clash of
constitutional doctrines as a clash between constitutional doctrine
and an ideology of nondiscrimination that says that certain kinds of
"exclusion" should never be permitted. Given the momentum that this
ideology has in higher education, I like to characterize the problem
as: "the irresistable ideological force (nondiscrimination) meets the
immovable constitutional object (the First Amendment)."
Question from :
Would these groups operate according to the standards set by
Christian groups? If no, then they should not be allowed. If yes, then
there is no question. Let us promote what is good for the survival of
mankind. Religious freedom is the heart and soul of the American way
of life. Christians have founded and sustained America,let us not stop
them from keep moving their country in the right direction.
Sadly, many colleges and universities have little or no regard for
religious freedom. The standard campus orthodoxy often dictates that
conservative religious individuals, groups, and institutions are
backward and bigoted. If a school official disagrees with the
Christian (or Muslim or Jewish or Hindu) message, that school official
is free to use the "bully pulpit" of their position to decry perceived
"intolerance," but they may not use the power of the state to actually
stifle religious expression or to exclude religious groups from
Question from James, liberal arts college:
Should a black organization in a college be forced to accept a
sheet-wearing member of Tri Kapppa? Should a Jewish organization on
campus be forced to accept an ardent Nazi? Should a Druid club be
forced to accept Christians or Jews? Come on, folks.
James, your analogies go to the heart of the issue. It is critical
for expressive organizations to maintain control over the integrity of
their message. This is a matter of basic common sense. It is also
important to note that your analogies deal with BELIEF, not STATUS. In
other words, there is nothing about being white that prevents someone
from sharing a common cause with the NAACP, but -- by definition -- a
white supremacist would be at odds with the NAACP's mission and
purpose. I know of no college that would require a campus chapter of
the NAACP to welcome skinheads with open arms.
Question from Lynn Johnson, University of Utah:
Can a strained interpretation of the 14th amendment trump the
clear meaning of the 1st? Is my freedom of religion abrogated when the
government forces me to denounce my beliefs or enjoins whom I
The so-called "conflict" between the First and Fourteenth
Amendments puzzles me. The Fourteenth Amendment requires the
GOVERNMENT to provide citizens with equal protection; it does not
mandate that PRIVATE ORGANIZATIONS treat all their members equally.
The equal protection provisions of the Fourteenth Amendment have no
bearing on the composition of my church congregation or the membership
of my political party. I have found that universities raise the
Fourteenth Amendment defense typically for two reasons: (1) to confuse
the public into thinking that these amendments actually conflict,
thereby providing a degree of public relations "covering" for an
unconstitutional act; (2) they somehow believe that the act of
"recognizing" a student organization makes it -- in essence -- a part
of the university instead of a private entity. There is another factor
as well: genuine good faith ignorance. University lawyers have a lot
on their plate, and they can hardly be expected to be experts in every
relevant area of constitutional, statutory, regulatory and common law.
They're helping manage endowments, manage human resources, manage
liability risks, maintain regulatory compliance, etc. It's just too
much for any one person to know.
Question from John K. Wilson, Illinois State University:
I think this is not a 1st Amendment vs. 14th Amendment issue, but
a 1st Amendment vs. 1st Amendment one. Students at a public university
have a 1st Amendment right to participate in a registered student
organization, regardless of their religion. Rulings such as the Boy
Scout case deal with private organizations, not one sponsored by a
government entity. It seems odd that FIRE, given its acronym, is
favoring a group's right to exclude over an individual's right to
participate, particularly when the organization in question is getting
the student's funding.
Mr. Wilson, you misunderstand the status of "registered" student
organizations. A registered student organization is no more a public
entity than a church is, or a political party, or an insurance agency,
or FIRE itself. Each of these entities is "registered" to do business
in a certain state, but the registration process does not make us
public. FIRE is not "state-sponsored" because we are a Massachusetts
corporation registered to do business in Pennsylvania. In fact, at
almost every university, the registration guidelines make it clear
that registered student organizations are NOT agents of the university
and their actions cannot be imputed to the university itself.
Regarding student fee funding, the Supreme Court has made it
abundantly clear that student fee funds are not "government" funds.
The only way mandatory student funds can be constitutional is if they
are dispensed on a viewpoint neutral basis. The imposition of
nondiscrimination regulations in this manner is not viewpoint neutral.
Question from Larry J. Ringgenberg, Ph.D. UW-La Crosse:
So if public funds should not be used to sponsor discrimination,
if no financial support is provided to the group is the discrimination
I'm not sure that I understand your question. Public funds are
used to sponsor discrimination all the time. For example, the military
discriminates on the basis of disability when selecting soldiers,
sailors, airmen and marines. Public universities discriminate on the
basis of numerous factors when engaging in selective admissions
practices . . . including discrimination on the basis of race when
following certain kinds of affirmative action or diversity regimes.
Thus, there is no constitutional impediment to the use of public funds
for "discrimination" as broadly defined. There are some limited
impediments to the use of public funds to "sponsor" certain kinds of
discrimination in certain kinds of circumstances. There are broader
statutory limits of the use of funds by entities that "discriminate,"
but, again, the statutory prohibitions on discrimination are very
It is simply meaningless spin when students, faculty and
administrators say, "I don't want to fund discrimination." In fact,
they do fund discrimination, and they do so happily in many instances.
What they are really saying is, "I don't want to fund THIS KIND of
If an African-American organization was tossed off campus for
excluding a white supremacist who sought to change the message of the
group from inclusion and racial equality to exclusion and racial
supremacy, many of the same people who decry "discrimination" by
Christians would lead the candlelight vigils to protest the right of
the African-American group to "discriminate" to maintain the integrity
of its message. The reality is that the objection is often not to
"discrimination" but to the underlying world view of the Christian or
Muslim or Jewish organization.
Question from JDM, small liberal arts college:
Federal law has a long history of exempting religiously controlled
institutions from discrimination on the basis of religion (e.g., Title
VII and Title IX), why should not student religious organizations
within institutions be entitled to similar exemptions?
Federal law has a history of granting these exemptions in part
because -- if the exemptions are not granted -- the law may very well
be unconstitutional. In other words, the exemptions are a matter not
just of legislative choice but of constitutional necessity. FIRE
believes that this constitutional necessity will soon become painfully
clear to public universities that insist on excluding religious groups
on the grounds that such groups engage in "religious discrimination."
Question from Lara Schwartz, Human Rights Campaign:
Why does there need to be a choice between religious freedom and
protection from discrimination? The campus groups are not being denied
religious freedom when they are asked to accept LGBT students as a
condition of receiving funds. First of all, the presence of GLBT
students in a university club does not deny the Christian students the
right to practice their religion freely. Second, the students do not
have to accept university funds. The real question is, if students are
free to decide that a non-discrimination policy cannot apply to them,
why wouldn't they be able to choose other university rules to violate?
Before I get to the heart of your question, there is one factual
matter that must be cleared up. Student groups at most major
universities cannot exist at all unless they agree to abide by all
university regulations -- including expansive nondiscrimination rules.
Thus, there is typically no lower level of regulation for groups who
want facilities access but not student fee funding. (Several Christian
groups have proposed arrangements like that and have been rebuffed).
The funding issue is often simply irrelevant to the larger question of
the group's ability to exist at all.
Campus groups are being denied religious freedom if they are being
asked to accept students that disagree with their mission or message
as a precondition for recognition (which is just another word for
"existence.") Freedom of association is an inherent part of the
religious liberty guaranteed by the First Amendment . . . without
freedom of association, you are by definition deprived of a critical
aspect of your religious liberty (and free speech rights).
A concrete example illustrates the importance of the "right to
exclude." If several fundamentalist students sought to join a chapter
of the HRC and then used that membership to either (1) report HRC
internal strategy and deliberations back to political opponents to
grant them an edge in public debate; or (2) use the strength of
numbers to elevate to leadership people who believed homosexual sexual
activity was an "abomination," you would see quite clearly and
painfully how important it is to be able to dictate the membership of
Finally, if a rule is unconstitutional, it is not disrespecting campus
policies to challenge that rule. If there was a rule in a particularly
conservative public school that restricted the HRC's ability to, say,
advocate for gay marriage, you would rightfully be outraged if I
accused you of "picking and choosing" regulations. I have never
encountered a religious student organization -- Christian, Muslim or
Jewish -- that had a problem complying with constitutionally
Burton Bollag (Moderator):
We're just past the halfway mark in our discussion. Keep those
Question from Larry J. Ringgenberg, Ph.D. UW-La Crosse:
Another constitutional right, freedom of the press, can also be in
conflict with the equal protection regulations of the 14th amendment
when a satirical publication writes about specific groups of students.
What do you say to these groups that want the publication stopped and
their organization status on campus taken away?
The freedom of the press does not conflict with the Fourteenth
Amendment. If a private publication prints an allegation that offends
specific groups of students, those student rights to equal protection
or due process are not being threatened. The government has not harmed
them (and remember, the Fourteenth Amendment protects a person from
government action, not private action). At FIRE, we have seen several
examples of publications "offending" students so much that the
publication is threatened with punishment or expulsion. My message to
those offended students is simple: If you think the publication's
message is offensive, refute it in a publication of your own -- or in
one of the other publications on campus. The cure for bad speech is
more speech -- not censorship.
Overall, students, faculty, and administrators are far too easy to
offend and far too eager to believe that someone must be punished if
they are offended. It takes a bit of courage to participate in the
marketplace of ideas. Students need fewer paternalistic protection and
Question from Emma, public two year college:
Then why stop there? Should that Nazi student be allowed to enroll
in Judaic Studies courses? Should white students be allowed to enroll
in Black Studies courses? How do you see that as being different?
Of course both kinds of students should be allowed to enroll in
the courses. But we're not talking today about class enrollment, which
presents issues (at public universities) as to whether a government
entity can exclude students on the basis of viewpoint or race. We're
talking about the ability of purely private organizations to dicate
their own membership and message.
Question from Burton Bollag:
David, aren't you confusing the issues of STATUS and BELIEF? While
it may be justified for a religious group to restrict membership to
students who share their belief, is it right for them to discriminate
on the basis of sexual orientation -- i.e. a person's status? Sexual
orientation is not an opinion, it is indeed a status. Christian groups
typically are ready to accept only gays who denounce their own nature.
If the issue were one of no-sex-before-marriage, than surely many gay
students could accept that, as do many straight students. But let's be
clear about the reasons for barring gays.
A good question, Burton. I have never encountered a Christian or
Muslim group (and those are the two groups that FIRE has most often
worked with) that has ever said that a person's sexual orientation by
itself is reason enough to exclude them from membership and/or
leadership. The question is one of religious belief -- and conduct in
conformance with that belief. For example, at Tufts University, the
Tufts Christian Fellowship allowed a woman with a lesbian sexual
orientation to lead a women's bible study... so long as she subscribed
to the group's beliefs regarding scriptural authority and sexual
behavior. When her beliefs changed, she was not permitted to lead. Her
orientation remained the same throughout. Her beliefs were the only
Many people may read the above statement and be aghast that certain
theological traditions ask gays not to engage in same-sex sexual
contact, but no one requires any gay individual to attend such a
church or belong to such a group. Why is it not enough to be able to
form a competing group and to protest and denounce the Christian
group? Why is it not enough to work to persuade the Christian group to
change its stance (as has happened with the Episcopal Church and the
United Churches of Christ, for example)? Why must administrators go
one step further and say that your viewpoint must be EXCLUDED from
campus? It is that lest step that is problematic... and
Question from Dave, small private college:
Do you imagine that FIRE may one day be in the position of
defending the right of a group to be funded that you would rather not
be funded? Extremist (fill in your least favorite belief here).
It is safe to say, given the ideological diversity of our staff,
that we defend the right of groups that any number of us dislike (or
even despise) to receive student fee funding and recognition virtually
every day. Freedom of speech is worth defending for its own sake.
There are more than enough people out there willing to defend the free
speech (and other constitutional rights) of groups they like. It is
much less common to see a group defend freedom not as a means to a
particular political end, but as a way of life. At FIRE, we aspire to
that level of consistency.
Question from Lara Schwartz, Human Rights Campaign:
If students do not wish to associate with their lesbian, gay,
bisexual or transgender peers, they can simply form a club that does
not accept university funds. What is to prevent a student group from
deciding that it does not want Jews as members? Or African American
students? Surely the university could withold funds from a group that
violated its racial or religious non-discrimination policies, even
with a purported religious justification. Would you represent a
Christian student group that wanted to exclude Jews from its meetings
while taking university funds? The question is not whether these
students should have religious freedom. It is whether they may be
exempt from a reasonable university rule designed to protect the
entire community simply because they SAY that their religion requires
that they break this rule. The question is whether they have a right
to use university funds to violate the university's non-discrimination
Again, the issue is so much more than funding. We are talking
about existence. There is typically no such thing as a student group
that can exist with a lower level of recognition (including,
crucially, facilities access) and no funding.
Also, student fee funding must be dispensed on a viewpoint neutral
basis. Period. That is an absolute constitutional requirement. The
university cannot privilege or prefer one point of view or ideology
when dispensing those funds. This question has been decided for years.
Regarding your various scenarios, you are blurring issues of status
and belief. At FIRE, we do not believe that a university would be
required to recognize a group that had a "no whites" or "no women"
(except in certain, extremely limited circumstances) or "no Jews"
(using the term in its racial sense) policy. There is nothing about
race or gender, for example, that prohibits participation in the
mission or message of an expressive organization. Belief is a
different matter. If a Christian organization wanted to exclude people
from membership who were not Christian, it would have the right to do
so. As would a Muslim group; as would a Jewish group. As would an
atheist organization, for that matter. These rights also extend to
political and cultural organizations like the HRC. This is absolutely
fundamental to the ability to form an expressive organization and
advance the group's expressive purpose.
Question from Kathy, 4 yr university:
Are your views on LGBT exclusion from religious groups founded on
the belief that sexual orientation is a choice? This debate is far
from resolution but if sexual orientation was found to be an immutable
characteristic such as race, would you still believe groups could
discriminate against these individuals? [To refer to your previous
example, a student NAACP chapter could not exclude white (immutable)
students but could exclude white supremacists (belief/choice)]
Our view on this issue has nothing to do with sexual orientation's
classification as a choice or genetic destiny. At FIRE, we assume that
sexual orientation is not a choice. The issue is one of belief and
behavior in conformance with belief. No one would say that
heterosexuals can choose not to be tempted by extramarital sexual
activity, but it is fair to say that they have a choice to believe
such activity is wrong and a choice to engage in that activity . . .
or not. You are free to disagree with such a view and even to find it
shocking, disgusting, immoral, pathetic (or some combination thereof).
That is not the question. The question is whether the state can
exclude from campus those organizations who hold such beliefs.
Question from Rick Haught, University of South Dakota:
On more than one answer you have characterized student
organizations as "purely private." Will you explain that in the light
that these organizations are using the university's tax exempt status,
various financial and physical resources, etc?
An organization's designation as "public" or "private" depends on
multiple factors, but even the most cursory review of the relevant
case law indicates that use of public facilities does not alter a
group's private status. Nor does the receipt of student fee funds . .
. remember, under Supreme Court precedent, student fee funds are not
"public funds." The use of a university's tax exempt status is an
interesting issue, but it does not convert a group to public status
any more than the federal government's decision to grant such status
to private groups "federalizes" them. The primary question is one of
responsibility and control. Universities do not govern these groups
and in fact disclaim any responsibility for their actions in
university policies. They are private, and there is no legal precedent
to suggest otherwise.
I believe we are now out of time. Thank you very much for your
questions. It is critically important that we all understand that a
truly free community is one that recongizes the independence of
expressive organizations and respects their right to advance their own
mission and message -- even if we disagree with that message. You
never know . . . the right you seek to undermine today you may need
tomorrow. In any case, FIRE will be there to help. Thank you to the
Chronicle for making this discussion possible and extending the
"marketplace of ideas" to your own corner of the academic world.
Burton Bollag (Moderator):
I'm afraid our time is up, but the debate will clearly continue,
especially with law suits by Christian campus groups pending against
at least four major colleges. Our thanks to our guest, David French,
for his thoughtful responses, and to all those who sent in questions.
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