The Center for Law & Religious Freedom

History of Universities Discriminating against CLS

 

A HISTORY OF PUBLIC UNIVERSITIES DENYING RELIGIOUS GROUPS RECOGNITION BECAUSE RELIGIOUS GROUPS REQUIRE THEIR LEADERS TO SHARE THEIR BELIEFS

 
Since 1993, Christian Legal Society student chapters have frequently been denied access to meeting space and campus communications because it requires its voting members and leaders to share its Statement of Faith.   Other campus ministries—InterVarsity Christian Fellowship, Christian Medical and Dental Association, Campus Crusade for Christ, Rejoyce in Jesus Ministries, Beta Upsilon Chi, and others—have also been denied recognition simply because they exercised their First Amendment rights of expressive association and free speech to require their leaders to share their core religious beliefs. 
 
A particularly egregious example occurred in 2003 at Washburn Law School when a student filed religious discrimination charges against CLS because it would not let him lead its Bible study. The student refused to sign the group’s Statement of Faith because he did not agree with it.   A tolerant group of students, the Washburn CLS chapter nonetheless allowed the student to be a guest speaker at one meeting. His talk confirmed that he did not share CLS’s viewpoint regarding orthodox Christian beliefs. When the CLS chapter told him that he was welcome to continue attending CLS’s meetings--which always are open to all--but would not be allowed to lead its Bible study, the student lodged a complaint of “religious discrimination” against the chapter. Law school officials investigated the complaint and derecognized CLS for telling a student of a different faith that he could not lead CLS's Bible study.  Eventually, CLS was forced to resort to a lawsuit to regain its recognition. Christian Legal Society of Washburn University School of Law v. Farley,  No. 04-4120 (D. Kan. Sept. 16, 2004).
 
In 1994, the University of Minnesota Law School threatened the CLS chapter with denial of recognition because it required its voting members and officers to subscribe to its statement of faith. Michael S. Paulsen, A Funny Thing Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on "Equal Access" for Religious Speakers and Groups, 29 U.C. Davis l. Rev. 653, 675 (1996). Although it relented in response to a letter from a faculty member, the university subsequently denied another religious group recognition because it refused to state in its constitution that its membership was open to all students regardless of religion or sexual orientation. Maranatha Christian Fellowship v. Regents of the Bd. of the Univ. of Minn. Sys., No. 03-5618 (D. Minn. Oct. 24, 2003). The university finally changed its policy to allow religious student groups to “require their voting membership and officers to adhere to the organization’s statement of faith and its rules of conduct.” Student Unions & Activities, Registration and Classification of Student Groups, in Student Unions & Activities Policy Handbook, available athttp://www.sao.umn .edu/groups/handbook/classification.php (last modified Apr. 15, 2008).
 
Even a law school that had a nondiscrimination policy that specifically exempted religious groups insisted that a CLS chapter pledge not discriminate on the basis of religion. After suit was filed, the University of Toledo Law School reaffirmed its religious exemption and agreed that religious groups could cite to the Bible in their constitutions. Christian Legal Soc’y Chapter of the Univ. of Toledo v. Johnson, No. 05-7126 (N.D. Ohio Jun. 16, 2005).
 
In Christian Legal Society v. Eck, 625 F. Supp.2d 1026 (D. Mont. 2009), docketed on appeal No. 09-35581 (9th Cir. June 18, 2009), a district court upheld the University of Montana School of Law’s denial of recognition to a CLS chapter because CLS requires its officers and voting members to sign its Statement of Faith. The court further held that because it was ineligible for recognition, the CLS student chapter could not challenge, as viewpoint discriminatory, the law school’s allocation of student fees based on student majority vote.
 
Often CLS and other campus religious groups are denied access solely because they have faith requirements for their leaders. Sometimes university officials also have denied recognition due to the religious groups’ requirement that their leaders not engage in conduct that orthodox religious groups consider immoral, including nonmarital sexual conduct. Even though CLS always explains to school administrators that it does not care about “orientation” but about “conduct,” many school administrators insist that the two are indistinguishable and deny CLS recognition based on the universities’ adamant view equating CLS’s prohibition on nonmarital sexual conduct with sexual orientation discrimination. 
 
As Professor Stephen Bainbridge has explained, in the early 1990’s, state universities began to enforce policies prohibiting discrimination on the basis of sexual orientation against student groups whose religious principles teach that “homosexual behavior [is] a sin that disqualifies those who practice it from membership or leadership within the group.” Stephen M. Bainbridge, Student Religious Organizations and University Policies Against Discrimination on the Basis of Sexual Orientation: Implications of the Religious Freedom Restoration Act, 21 J.C. & U.L. 369 (1994). Professor Bainbridge described the University of Illinois’s derecognition of CLS  when its student leaders “refused to sign a University pledge” regarding sexuality, although its recognition was eventually restored. Id.at 370. Recognition was eventually restored due to
 
In Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), the Southern Illinois University Law School claimed that CLS’s requirement that its leaders and voting members affirm its Statement of Faith was discrimination on the basis of religion and sexual orientation. Relying on  Dale, Hurley, and Rosenberger, the Seventh Circuit held thatlaw school officials may not deny recognition, including meeting space, access to communication channels, and funding, to a CLS chapter.  
 
In a similar dispute, Arizona State University College of Law eventually conceded that CLS’s practice did not constitute discrimination on the basis of sexual orientation and granted recognition to religious groups that limited voting membership and leadership to students sharing the same religious beliefs. Christian Legal Soc’y Chapter at Ariz. State Univ. v. Crow, No. 04-2572 (D. Ariz. Nov. 17, 2004).
 
The Student Judiciary at the University of Idaho also concluded that CLS did not discriminate on the basis of sexual orientation and, instead, had a First Amendment right to require its officers and voting members to agree with its religious beliefs and conduct requirements. For a copy of the Student Judiciary's decision, see Appendix B to CLS's Reply Brief in Christian Legal Society v. Martinez.
 
Unfortunately, other student groups sometimes actively pressure a law school to deny CLS the same recognition they enjoy. In 2003, a member of the Outlaw chapter at Ohio State University’s Moritz College of Law filed a formal complaint demanding that the law school derecognize the CLS chapter because its officers and members signed a statement of faith agreeing, among other things, to comply with scriptural standards of sexual morality. See Jeff Polesovsky, GLBT Group Files Formal Complaint Against CLS, The Lantern, Nov. 18, 2003, available at http://www.thelantern.com/main.cfm?include=detail&storyid=560959 (last visited Apr. 9, 2009). When university officials threatened to withdraw recognition, CLS filed suit. Christian Legal Soc’y Chapter of the Ohio State Univ. v. Holbrook, No. 04-197 (S.D. Ohio 2004). In response, the university amended its policy to allow religious student groups to “adopt a nondiscrimination statement that is consistent” with their sincerely held religious beliefs. Ohio Union, Student Organization Registration Guidelines, at 7, available at http://ohiounion.osu.edu/studentorgs/orgs_manage.asp#newreq (last visited Apr. 9, 2009).
 
Recently, the Iowa Campaign for Human Rights student group at University of Iowa School of Law circulated a petition urging the university to deny funds to the CLS chapter. Adam Sullivan, UI Christian Legal Society’s Funding Under Fire, Daily Iowan, Mar. 3, 2009, available at http://www.dailyiowan.com/2009/03/03/Metro/10365.html (last visited Apr. 30, 2009). On other occasions over the past six years, the university or the student government has threatened to penalize CLS.
 
Other religious groups have experienced similar harassment based on their leadership requirements. For example, the Second Circuit held that, under the Equal Access Act, 20 U.S.C. 4071 et seq., high school officials may not deny recognition to a student religious group that requires its officers to agree with its core religious beliefs. Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996). 
 
In Beta Upsilon Chi, Upsilon Chapter at the University of Florida v. Machen, 586 F.3d 908 (11th Cir. 2009), vacating as moot , 559 F. Supp. 2d 1274 (N.D. Fla. 2008), after questions at oral argument were favorable to the religious student group’s First Amendment rights, the university changed its policy to allow religious groups to require their officers and members to hold their religious viewpoints and filed a motion to dismiss the appeal as moot. The Court of Appeals dismissed the case as moot and vacated the adverse district court opinion.
 
In Madison Roman Catholic Found. v. Walsh, 2007 WL 1056772 (W.D. Wis. Apr. 4, 2007), the district court granted a preliminary injunction against the University of Wisconsin to prevent it from requiring a Catholic organization to include non-Catholics as members. 
 
In Alpha Iota Omega Christian Fraternity v. Moser, No. 04-765, 2006 WL 1286186 (M.D.N.C. May 4, 2006);2005 WL 1720903 (M.D.N.C. Mar. 2, 2005), the district court granted a preliminary injunction against the University of North Carolina that had denied recognition to a Christian student organization because the group required its officers and members to agree with its religious viewpoints. After the university adopted a policy allowing all groups to “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,” the case was dismissed as moot in 2006. 
 
In Maranatha Christian Fellowship v. Regents of the Board of the University of Minnesota System, No. 03-5618 (D. Minn. Oct. 24, 2003), the university changed its policy to allow religious student groups to “require their voting membership and officers to adhere to the organization’s statement of faith and its rules of conduct.” Originally, the university denied recognition when the group refused to state in its constitution that its membership was open to all students regardless of religion or sexual orientation. 
 
In Beta Upsilon Chi v. Adams, No. 3:06-cv-00104 (M.D. Ga. 2006), the University of Georgia restored recognition to the Christian group that had been revoked because the group required its officers and members to agree with its core religious viewpoints. It was odd that a lawsuit was required because the Georgia Attorney General in 1997 had ruled that Georgia Tech could not deny recognition to a religious student group (Rejoyce in Jesus Ministries) because the First Amendment protected its use of faith standards for voting members and officers. Georgia Attorney General Opinion, No. 97-32 (Dec. 12, 1997).
 
In DiscipleMakers v. Spanier, No. 04-2229 (M.D. Pa. 2005), Pennsylvania State University agreed to exempt religious groups from its religious nondiscrimination policy and to allow the religious groups to choose their officers on the basis of religion.
 
In Intervarsity Multi-Ethnic Campus Fellowship v. Rutgers, No. 02-06145 (D.N.J. 2002), an InterVarsity chapter refused to include the school’s nondiscrimination statement in its constitution because it made leadership decisions on the basis of religion. The university derecognized the group. After multiple attempts to resolve the situation, the chapter sued, after which the university settled by agreeing to interpret its policy in a manner that protected the chapter’s right to use faith requirements as criteria for selecting its leaders.
 
In Cordova v. Laliberte, No. 08-543 (D. Idaho 2008), Boise State prohibited student activity fee funding for religious student groups in violation of the Rosenberger decision. The school began making revisions to correct this problem, but in doing so revoked recognition for several religious student groups under their nondiscrimination rule. After many months Boise State eventually entered into a comprehensive settlement eliminating their funding ban for religious student groups and allowing religious student groups to limit leadership to those who share their religious views.
 
In 2003, the Muslim Student Association at Louisiana State University was derecognized after 30 years on campus for refusing to place a nondiscrimination policy regarding religion and sexual orientation in its constitution. The Foundation for Individual Rights in Education secured restoration of its recognition.
 
Select publications
 
Many articles have addressed the issue in the past two decades with a spike in the number of articles in the past five years. The following is a small sampling:
 
1. Joan W. Howarth, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U.C. Davis L. Rev. 889 (2009): Michigan State Law School Dean argues that First Amendment protects rights of religious student groups to define themselves by limiting leaders and members to those who share their religious beliefs. This is an excellent, current article written by a scholar who sympathizes with the homosexual groups but argues that the same freedom that protects their right of association protects religious groups’ rights of association.
 
2. Note, Leaving Religious Students Speechless: Public University Antidiscrimination Policies and Religious Student Organizations, 118 Harv. L. Rev. 2882 (2005): Student note discusses various religious groups, including CLS, who are being attacked under university nondiscrimination policies.
 
3. Note, Seventh Circuit Holds that Public University Cannot Refuse to Recognize Student Group Based on Group’s Violation of School Nondiscrimination Policy—Christian Legal Society v. Walker, 120 Harv. L. Rev. 1112 (2007): Student note discusses the Walkercase.
 
4. Michael S. Paulsen, A Funny Thing Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on “Equal Access” for Religious Speakers and Groups, 29 U.C. Davis L. Rev. 653, 675 (1996): In 1994, the University of Minnesota derecognized a Christian Legal Society chapter because it “discriminated” on the basis of religion. Professor Paulsen led the successful effort to regain recognition for the chapter. He argues that universities’ use of nondiscrimination policies to deny recognition to religious groups is nothing more than “a thinly-veiled disagreement with [Widmar’s] equal-access-for-religion result.” 
 
5. Charles J. Russo and William E. Thro, The Constitutional Rights of Politically Incorrect Groups: Christian Legal Society v. Walker as an Illustration, 33 J.C. & U.L. 361 (2007): This article by the former Virginia solicitor general and a frequent commentator on education law examines Walkerin a favorable light.
 
6. Stephen M. Bainbridge, Student Religious Organizations and University Policies Against Discrimination on the Basis of Sexual Orientation: Implications of the Religious Freedom Restoration Act, 21 J.C. & U.L. 369 (1994): Professor Bainbridge chronicles the University of Illinois Law School’s derecognition of the CLS chapter when its student leaders “refused to sign a University pledge to refrain from discrimination on the basis of sexual orientation.” The university subsequently recognized the chapter.