In four recent judicial cases, student organizations at four institutions across the country have challenged their university’s denial of official recognition and/or funding from mandatory student fees because these organizations were believed to discriminate on the basis of religion and sexual orientation. Two of the four cases were appealed to the United States Circuit Court of Appeals and the resulting decisions in Christian Legal Society v. Kane, 2006 W.L.997217 (N.D. Cal.), affirmed,2009 W.L. 693391 (9th Cir. Cal.) and Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) are in conflict. The Supreme Court is scheduled to hear an appeal from the Kane caseChristian Legal Society v. Martinez, 2009 W.L. 1269076 (US), which may provide some national guidelines for universities to follow. To understand the legal issues involved and the implications of the pending Supreme Court decision, this article reviews the four cases and discusses issues that institutions should consider.
These cases involved the denial of official recognition and denial of funds from mandatory student fees to Christian student organizations that require their voting members and officers to sign a statement of faith. By signing the statement of faith, members agree to uphold their Christian values and to refrain from heterosexual or homosexual activity outside the bonds of marriage between a man and a woman. Further, membership eligibility allows individuals to become voting members who repent for any past sexual behavior that was outside of the bonds of marriage. These student organizations have filed claims in federal court for violations of First Amendment speech, expressive association, and free exercise of religion rights. Two cases find that the institutions have violated the Christian organizations’ First Amendment rights and two cases upholding the denial of recognition or funding based on discrimination in membership eligibility of the Christian organizations.
NOTE: These requirements of enforcing 1st amendment rights apply to public institutions. Private institutions, while not required to enforce constitutional rights, have accepted these rights as societal norms. Many private institutions have incorporated some of these guarantees into their student handbooks. So at private institutions it depends on the existing polities surrounding mandatory feeds and the precedents of implementing these policies.
Cases upholding denial of recognition or funding from student fees:
The United States Supreme Court has agreed to hear Christian Legal Society v. Martinez, 2009 W.L. 1269076 (US). This case originated as Christian Legal Society v. Kane, 2006 W.L.997217 (N.D. Cal.) and was affirmed without a written opinion by the Circuit Court of Appeals for the 9th Circuit [ 2009 W.L. 693391 (9th Cir. Cal.)]. Since 1994 the Christian Legal Society (CLS) was a recognized student organization of the Hastings Law School of the University of California. At the beginning of the 2004 – 2005 academic year CLS became a member of the National Christian Legal Society and changed its charter to require voting members and officers to sign a statement of Christian faith. Membership became limited to those who, by signing the statement, renounced other religious beliefs and accepted moral standards that rejected heterosexual and homosexual activity outside the bonds of marriage between a man and a woman. Repentant individuals who in the past participated in hetero or homosexual activities and who signed the statement would also be considered voting members. The Hastings Law School Student Bar Association (SBA) was responsible for granting official recognition to student organizations in the Law school. The 2004 CLS application for official recognition was denied by SBA. SBA found that CSA was in violation of the institution’s nondiscrimination policy since it denied membership based on religious affiliation and sexual orientation and therefore was not eligible to be a recognized student organization at the Law school.
Recognition of student organizations at Hastings provides certain benefits including: use of the Law School’s name and logo, use of bulletin boards, access to University e-mail list services, accounting and financial services, allocation from student fees and travel funds, space in a University newsletter, office space, telephone voicemail, listing on the official Web site and publications, participation in the annual student Organizations Fair, access to information distribution services, and use of Law school rooms and audiovisual equipment for meetings. CSA filed suit in Federal District Court claiming violations of First Amendment, speech, association, and free exercise rights. Both the University of California Hastings Law School and CLS asked the Court for Summary Judgment.
The Court found that the Hastings Law School’s student organization recognition process was a limited public forum. Denial of access to the forum was permissible only if the rationale for denial was viewpoint neutral. The denial of recognition of CLS, according to the Court, was content neutral because it was based on the organization’s conduct, denial of membership, not its philosophy.
The Court concludes that Hastings’ requirement of compliance with its Nondiscrimination Policy is a reasonable regulation that is consistent with and furthers its educational purpose. Accordingly, even if Hastings’ Nondiscrimination Policy is considered a regulation of speech, Hastings’ enforcement of this policy did not infringe upon CLS’s First Amendment rights of free speech (p. 12).
Citing Healy v. James, 408 U.S. 169 (1972) the Court stated: “… Hastings has denied CLS official recognition based on CLS’s conduct- its refusal to comply with Hastings’ Nondiscrimination Policy –not because of CLS’s philosophies or beliefs (p. 17). The court determined CLS had plenty of opportunities during the academic year to advocate for its beliefs and philosophies, despite the denial of official recognition. The U.S. Circuit Court of Appeals for the Ninth Circuit affirmed this decision without a written opinion and the U.S Supreme Court is scheduled to hear the case.
Based on the Kane decision, Christian Legal Society of the University of Montana Law School v. Eck, 625 F.Supp.2d 1026 (D. Mont. 2009) found that the University of Montana Law School did not violate the First Amendment speech, expressive association and free exercise rights of the Christian Legal Society as a recognized student organization at the University, when it denied access to funds from student mandatory fees. CLS, a local chapter of the national organization, required voting members and officers to sign a statement of their Christian belief that included renunciation of heterosexual and homosexual activities outside the bonds of marriage between a man and a woman. Those who repented for past sexual activity outside of marriage were also eligible for membership. The Court relied on Kane in reaching a decision but noted the facts included only the denial of funding to a recognized student organization. The Court found that the nondiscrimination and open membership policies of the University were viewpoint neutral. Denying funding to CLS did not inhibit the organizations First Amendment rights (p. 1032).
Cases finding the institutions violated the Christian organizations’ First Amendment rights
The Christian Legal Society (CLS) at Southern Illinois University (SIU), affiliated with the national CLS, was denied official recognition by the University as it was in violation of the University’s nondiscrimination policy. CLS based membership eligibility on individuals signing a statement of faith which included the belief that sexual activity should occur only within the bonds of marriage between a man and a women. Individuals repenting for past hetero or homosexual activity were also eligible for membership. Claiming a violation of their First Amendment speech, expressive association, and free exercise of religion rights, CLS filed a motion for a preliminary injunction against SIU in Federal District Court. When the injunction was denied, they appealed to the United States Circuit Court of Appeals. Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) reversed the District Court decision and remanded the case for further deliberation. SIU provides official recognition to a diverse group of student organizations. Similar to other institutions, official recognition provides a number of benefits such as access to the Law School’s List-Serve, data base of e-mail addresses, use of bulletin boards, placement on school organization lists, publications and website, use of conference rooms, storage space, a faculty advisor, and funding from student mandatory fees (p. 857). The Court found that CLS was likely to be successful in its claims since it is not clear that CLS violates the institution’s nondiscrimination policy, that SIU appears to have infringed the expressive association rights of CLS, and that SIU violated the organizations speech rights. (p. 859). In relation to the nondiscrimination policy, the CLS membership policy applies to both heterosexual and homosexual behavior outside of the marriage between a man and a woman and is based on a belief rather than an individual’s classification as a member of a particular group (p. 860). In terms of expressive association and speech rights the court cited several Supreme Court decisions: Rosenberger v. Rectors and Visitors of the University of Virginia, 515U.S. 819 (1995); Board of Regents of the University of Wisconsin v. Southworth, 529 U.S.217 (2000); Healy v. James, 408 U.S.169 (1972) among others. These cases indicate under the right of expressive association the University cannot force its views on an organization whose views are considered unpopular, or force it to accept members who will hamper the group’s ability to advocate for a belief or viewpoint (p. 863). Further, the University has established a public forum, and while there was disagreement between the parties on the type of forum (a matter to be resolved by the District Court) speech rights must be granted in a viewpoint neutral way (p. 864). The Court noted that CLS was the only organization singled out for denial of recognition when other student organizations at SIU limit membership based on religion and gender (p.686). The Court found that SIU has denied CLS recognition based on view point discrimination (p. 687).
Alpha Iota Omega Christian Fraternity v. Moeser, 2006 W.L.1286186 (M.D.N.C.) reached a similar decision to that in Walker. AIO is an unincorporated student organization that was denied recognition by the University of North Carolina – Chapel Hill (UNC-CH). AIO required its members to sign a similar belief statement that prohibited heterosexual and homosexual behavior outside of marriage between a man and a woman and allowed membership for those repenting for past transgressions. The Christian fraternity filed a motion in the Federal District Court for the Middle District of North Carolina asking for a preliminary and permanent injunction prohibiting the enforcement of the nondiscrimination policy for a class of student organizations. The Court issued an injunction giving UNC-CH a period of time to revise their nondiscrimination policy so as not to violate the First Amendment rights of AIO and similar organizations. As a result UNC-CH added the following clause to its nondiscrimination policy:
2. Student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization’s goals and agree with its beliefs, so long as no student is excluded from membership or participation on the basis of his or her age, race, color, national origin, disability, religious status or historic religious affiliation, veteran status, sexual orientation, or, unless exempt under Title IX, gender (p. 4).
This change in policy meant that organizations such as AIO that required members to sign a belief statement are no longer in violation of the institution’s nondiscrimination policy. Based on UNC-CH’s change in their antidiscrimination policy, the Court approved the University’s motion to dismiss the case.
With Martinez (the Kane case) on the Supreme Court docket, institutions need to be cautious about denying recognition or funding to religious or political organizations while a Court ruling is pending. There is reason to believe, based on previous Supreme Court rulings in the area of institutional-recognition and funding of student organizations, that the decision of the Seventh Circuit is closer to the ultimate decision of the Supreme Court, that the Christian organizations First Amendment rights were violated when it was denied recognition because it required members to sign a belief statement. For example, Healy v. James found that an institution could not deny official recognition to the Students for a Democratic Society because it disagreed with the philosophical tenets of the student organization. Rosenberger v. Rectors of University of Virginia established that funding from mandatory student fees cannot be denied to a publication because it has a Christian editorial perspective. Recognition as an official organization and funding must be granted in a viewpoint neutral way. Board of Regents of the University of Wisconsin v. Southworthestablishes that the scheme to fund student organizations is a limited public forum and therefore funds must be awarded in a viewpoint-neutral way. These cases along with other cases involving organizations outside of higher education indicate that the policies of Christian or political organizations that limit membership based on philosophy or a belief system will be protected under the First Amendment and are not in violation of an institution’s antidiscrimination policies. The safe approach for institutions is to at least recognize and provide student funds to these organizations until the Supreme Court gives a definitive answer. If the Court rules as we think they will, institutions may want to follow UNC-CH’s example and make a similar change to their nondiscrimination policy.
Please send inquires and feedback to Robert Hendrickson at [email protected].
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