[Paleopsych] Chronicle Colloquy: Religious freedom vs. civil rights

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Religious freedom vs. civil rights
The Chronicle: Colloquy Live Transcript
http://chronicle.com/colloquy/2005/01/studentgroups/


    Thursday, January 27, at 1 p.m., U.S. Eastern time

    The topic

    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
    challenges.
    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
    issue.
    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?
    [43]Choosing Their Flock (1/28/2005)

    The guest

    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.
      _________________________________________________________________

    David French:
        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.
    David French:
        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
    campus.
      _________________________________________________________________

    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.
    David French:
        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
    associate with?
    David French:
        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.
    David French:
        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
    legal?
    David French:
        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
    specific.

    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
    discrimination."

    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?
    David French:
        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?
    David French:
        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
    expressive organizations.

    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
    appropriate regulations.
      _________________________________________________________________

    Burton Bollag (Moderator):
        We're just past the halfway mark in our discussion. Keep those
    questions coming!
      _________________________________________________________________

    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?
    David French:
        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
    stronger backbones.
      _________________________________________________________________

    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?
    David French:
        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.
    David French:
        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
    variable.
    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
    unconstitutional.
      _________________________________________________________________

    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).
    David French:
        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
    policy.
    David French:
        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)]
    David French:
        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?
    David French:
        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.
      _________________________________________________________________

    David French:
        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.

References

   43. http://chronicle.com/free/v51/i21/21a03301.htm