Over the last year, law schools have been the setting for disputes over whether student groups should have the right to receive institutional funds while restricting membership to those who share their religious beliefs -- in violation of anti-bias rules.
This week, lawyers representing those groups indicated that they are taking their campaign beyond law schools by challenging the way two University of Wisconsin campuses are treating Christian organizations. The religious groups are now threatening to sue -- and lawyers from a variety of perspectives are predicting that this may be the next major higher education case to reach the U.S. Supreme Court.
The Alliance Defense Fund, which represents religious groups, this week released a letter it sent to various University of Wisconsin officials. The letter focuses on the university's Madison and Superior campuses. The former has revoked recognition for a campus chapter of the Knights of Columbus and Superior has declined to recognize the InterVarsity Christian Fellowship. While there are multiple issues at play -- some of them having nothing to do with anti-bias rules -- both organizations restrict membership based on faith.
"The question is how much will the government try to limit the participation of religious groups in public life," said David A. French, president of the Alliance Defense Fund's Center for Academic Freedom. He said that colleges' anti-bias rules were being used "to limit the autonomy" of religious groups in "a strange ideological twist" that did not reflect the intent of those who pushed for non-discrimination policies. He added that many other religious groups that have not yet had their status challenged fear they will be next.
French cited recent court decisions that have suggested that federal judges are increasingly concerned about the ability of religious groups to maintain their cohesion, even within a pluralistic public university. Last month, for example, a federal appeals court made permanent an injunction barring Southern Illinois University at Carbondale from denying recognition to the Christian Legal Society, which bars from its group anyone who does not embrace its religious beliefs or anyone who engages in gay sex. Southern Illinois had cited its anti-bias rules, but the appeals court found that denying the group the right to limits its membership would effectively deny the group its reason for existing.
Not every federal court has ruled that way, however. In April, a federal district court judge upheld the right of the University of California's Hastings College of Law to enforce its anti-bias policy and to deny recognition to its branch of the Christian Legal Society.
University officials in Wisconsin and elsewhere say there are legitimate reasons to stick by their anti-bias rules.
Christopher Markwood, provost at Wisconsin-Superior, said that he was aware that there were "competing court cases" and that some issues "have not been settled" yet. "We face a complicated constitutional and legal issue here," he said. (He also said that the group seeking funds on his campus had failed to correctly fill out application forms, so the current status of the group is not based on its religious views at all.)
Markwood noted that Superior -- like many colleges -- has two levels of student groups. Full recognition, which allows groups to receive student fees for activities, requires groups to abide by anti-bias rules. But he said that groups that wish to discriminate can still become registered student groups, use university facilities, and promote their activities. Markwood noted that a number of religious groups have done so, and contribute to the spiritual life of the campus.
Madison officials have made similar arguments, although tensions grew this week as the university issued a series of news releases. On Wednesday, the university announced that it had reached an agreement with the Knights of Columbus in which the group would make changes in its policy and be eligible for funds. But Knights officials -- and French, the lawyer working with them -- disputed that and said no agreement had been reached. Late Thursday, the university pulled its previous statements and posted a new one stating that the previous announcements had been made "in good faith." The issue has been sensitive politically for the university system. Republican politicians have been attacking the university for other policies on religion and for not firing an instructor who believes that the U.S. government orchestrated the 9/11 attacks.
Gregory Roberts, executive director of ACPA: College Student Educators International, said that it was important to separate the issue of providing religious support from the question of anti-bias policies. Roberts said that many public institutions have historically "been so fearful about violating the separation of church and state" that they have "stayed away from helping students with the spiritual or faith component of their development." Roberts said he was pleased to see many more public universities welcoming religious activity on campuses.
At the same time, however, he said he supported the idea that colleges could require all student groups receiving support to be open to all students. "As an African American, I could be interested in a Latino group, and as a Methodist, I could be interested in what the Buddhists or Catholics or doing and I could decide to learn about them by joining," Roberts said.
Some religious leaders disputed the idea that enforcing anti-bias rules squelches expressions of faith.
Madison's Hillel Foundation has about 30 affiliated student groups and none of them bar non-Jews from joining or exclude anyone from any activities, said Greg Steinberger, the executive director. "If you are on university space, everyone should be welcome," he said.
He said that some of those student groups -- generally those focused on broad cultural activities, like setting up a Jewish film festival or working to help the local community -- have sought and received funds from the university over the years. He said that student groups that are more focused on providing specific religious services have not sought funds. Steinberger said that supporting religious activities without seeking university funds in no way detracted from them.
"There is plenty of room for students to have a spiritually rich life on campus and it doesn't require university or government funding to do it," he said, adding that it was "preposterous" for groups to say that the denial of university funds limited students' ability to express their faith.
Sheldon E. Steinbach, vice president and general counsel of the American Council on Education, agreed. "From a traditional standpoint, it is difficult to believe that a state institution could fund with public monies activities on a campus that would preclude some students from participation." Steinbach said that Wisconsin's policies were in fact consistent with the way public institutions have acted for some time.
"Historically, the academic community has sought to preserve the right of any student to join in any extracurricular activity sponsored by the institution," he said.
At the same time, Steinbach said that "the parameters of church-state relationships under the First Amendment have been in greater flux over the last decade and it is at the moment not possible to predict how a Roberts Supreme Court is going to rule on these matters." Steinbach predicted that within a year or so, the Supreme Court might well need to weigh in on the issue.
French said that wouldn't surprise him, either. Unless colleges change their policies or the courts clarify the legal issues, "this is going to be on the front burner," he said.