March 14, 2007

A More Porous Church-State Wall

Last week saw two court rulings and one campus dispute focused on church and state. In all three cases — and in several others in the last year — advocates for religion won, and supporters of a strict separation of church and state lost.

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The disputes themselves are quite different, covering a public university’s allocation of student fees (decided in federal court), the right of “pervasively” religious colleges to have tax-exempt bonds issued on their behalf by a state agency (decided by the California Supreme Court) and the right to keep a cross on permanent display at a public college’s chapel (decided in the court of public opinion). But experts on church-state issues and higher education law see something significant in the way these disputes and others are playing out: the long-term legal and political impact of a 1995 decision of the U.S. Supreme Court commonly called the Rosenberger case.

In that 5-4 decision, the Supreme Court ruled that the University of Virginia could not deny funds to student groups just because they engage in religious activities. In a dissent that might ring true to some dealing with church-state conflicts over student activities today, Justice David H. Souter predicted that the majority opinion would make “a shambles” out of student activity questions at public colleges.

While that case was fiercely argued at the time, advocates on both sides of church-state matters say that for a variety of reasons, its impact beyond the University of Virginia wasn’t immediately as dramatic as it might have been. But now, they said, the philosophy outlined in that decision is taking hold, both judicially and politically, in a way that could leave many colleges facing legal challenges. “I think these cases today are a continuation of the broad direction set by Rosenberger,” said Terence J. Pell, president of the Center for Individual Rights, which successfully represented the Christian students at UVa who wanted student fee funds to support Wide Awake, a publication based on their religious views.

“I think we’ve moved from an extreme and formalistic view of the First Amendment, which created a presumption against” religion in public higher education, toward a view that religious groups should have the same rights as others to seek funds at state institutions, Pell said.

Barry Lynn, executive director of Americans United for Separation of Church and State, doesn’t agree with Pell about much, and Lynn’s group was horrified by the Rosenberger decision. But he agrees with Pell that this year’s rulings reflect the thinking behind that ruling more than a decade ago. “This is Rosenberger run amok,” he said.

The developments in the last week include the following:

• A federal judge ruled that the University of Wisconsin at Madison could not deny funds from student fees to a Roman Catholic group just because that group violates the university’s anti-discrimination policies.
• The California Supreme Court ruled that government agencies could issue bonds on behalf of Azusa Pacific University and California Baptist University even though those institutions are “pervasively sectarian.”
• The College of William and Mary announced that it would restore to permanent display a cross that had been removed from a historic chapel, setting off alumni protests and the announcement that one donor was rescinding plans to bequeath $12 million.

In the last year, meanwhile, there have been these developments:

• A federal appeals court barred Southern Illinois University’s law school from enforcing its anti-bias rules against a Christian legal group.
• A federal judge’s orders led the University of North Carolina at Chapel Hill to change its anti-bias rules so that they would not preclude recognition of a Christian fraternity.
• The Universities of Georgia and Missouri at Columbia, facing legal threats, recognized Christian fraternities that had previously been considered in violation of anti-bias policies.
• Suits arguing that Christian groups are facing discrimination are pending against the Georgia Institute of Technology and Savannah State University.

In one case in the last year, a federal judge ruled that a college — in this case the University of California’s Hastings College of Law — could enforce its anti-bias rules against a Christian group, but that case is being appealed, and even some legal observers who very much applaud the decision in that case aren’t sure it will survive.

From Rosenberger to Today

Given that many public colleges have believed for years that they were on solid ground applying their anti-bias statutes to religious groups (effectively keeping them from the benefits accorded “recognized” student groups) or barring funds from going to religious groups, how did the law change under them? While the Rosenberger case cleared the way for financial support, there was an earlier case that set the stage for Rosenberger. In a 1981 case involving the University of Missouri at Kansas City, the Supreme Court ruled that if a public college makes its space generally available to student groups, it can’t automatically exclude religious student groups from this space.

In that case, though, many colleges thought that the state role was minimal as there was not an issue of support with mandatory student fees collected by the college. The Rosenberger case did deal with such fees and covered much the same philosophical ground of many of the cases of the last year, in that religious students publishing Wide Awake focused on their rights of free expression while the university focused on separation of church and state. The university noted throughout the case that it never tried to stop the students from printing their paper or distributing it — that the only line it drew was providing funds for it.

The majority decision in the case came down squarely on the side that this was a free speech issue. “Were the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes. And if the regulation covers, as the university says it does, those student journalistic efforts which primarily manifest or promote a belief that there is no deity and no ultimate reality, then undergraduates named Karl Marx, Bertrand Russell, and Jean-Paul Sartre would likewise have some of their major essays excluded from student publications,” the ruling said.

While the dissent focused on the question of religious speech being different from other speech, the majority opinion largely rejected that view.

Pell of the Center for Individual Rights said that he thinks the reason so many colleges in recent years have still focused more on church-state separation than on free association for religious students is that Rosenberger was such a radical departure. “This was a huge shift in philosophy and thinking and there are many people who disagree with that and who have been trying to find ways around that shift,” he said. “This is part of a deeper cultural battle.”

Lynn, of Americans United, said that the principle those people are trying to defend is one that deserves defense. “I still think religion is different,” he said. “Rosenberger was a fundamental misunderstanding of the Constitution. The framers wanted religion treated differently.” Lynn stressed that this was not an anti-religious view. He said that the Constitution granted wide freedom to religious groups to be treated with “kid gloves” on many government matters, so, for example, government agencies shouldn’t try to impose their rules on religious colleges and other institutions. But such religious groups “have to support themselves” to keep an appropriate separation.

William A. Kaplin, a professor of law at Catholic University and co-author of The Law of Higher Education, said the evolution from Rosenberger to the present situation, where public colleges are losing numerous cases, reflects the way various parts of Rosenberger were built upon by subsequent court rulings. Kaplin said Rosenberger should be seen in part as a case about viewpoint discrimination and in part about the Establishment Clause of the First Amendment. To the extent that Rosenberger shocked many college officials in 1995, subsquent rulings have made clear that the court wanted to reinforce its principles, not weaken them, he said.

For example, in 2000, the Supreme Court ruled in the Southworth case that the University of Wisconsin did not necessarily violate the rights of students by having mandatory fees that supported some groups with which the students disagreed. Combine that principle with Rosenberger, Kaplin said, and the free association rights of religious groups to share fully in student fees at public colleges aren’t surprising from a free speech standpoint.

Meanwhile, several other Supreme Court decisions — most notably a case upholding the right of the Boy Scouts to discriminate against gay people, even in violation of state anti-bias laws — have enshrined the right of free association of those with common religious views as outweighing other state interests, Kaplin said. You combine Rosenberger with these decisions, and it’s not surprising that public colleges can’t cite their anti-bias policies to keep funds from going to religious groups, many of which admittedly restrict membership to those who share their beliefs.

Considering the way litigation works, it is thus not surprising then that the full force of Rosenberger is now becoming visible, with these other cases having also paved the way, Kaplin said. “It’s a combination of these events that happened at the same time that the political picture is changing,” he said. “That’s why all of the sudden there is all of this litigation.”

Lawrence White, formerly general counsel at Georgetown University and a lawyer in the counsel’s office at the University of Virginia, and now a consultant to colleges on legal issues, sees political shifts as key. “It’s taken a long time for the case to percolate, but we’ve seen this plethora of cases in the last 12 months,” he said. White noted that Rosenberger came down in the middle of the Clinton administration. Clinton wasn’t seeking out judges with an expansive idea of the role of religion in public institutions, but President Bush has, White said.

Moreover, groups like the Alliance Defense Fund, which has been involved in many of the cases in the last year, have gained clout, money and influence, he said. “The political climate now is right for this,” White said. “You have organizations that have dedicated themselves to the issue, a more sympathetic judiciary, and court rulings like Rosenberger.“

Choices for Colleges

For colleges, the new environment offers new choices — and the group for whom those choices may be particularly favorable are “pervasively sectarian” colleges. In 2003, the U.S. Supreme Court let stand an appeals court ruling allowing Tennessee to issue bonds on behalf of such a college and now the California Supreme Court has weighed in on behalf of two colleges in that state.

Pell of the Center for Individual Rights sees this as a natural extension of the other issues being argued in church-state law on higher education. Specifically, he said, religion shouldn’t be somehow questioned — whether the activity is by students at a public college or by colleges themselves. “The ‘pervasively sectarian’ schools don’t look a whole lot different from their secular counterparts,” he said. “They are about teaching students.”

Paul Corts, president of the Council for Christian Colleges and Universities, said he expected more Christian colleges to attempt to participate in bond programs, something many of them have done already. Corts said that if states give Christian colleges tax-exempt status, which they do, they are already recognizing “that the colleges perform a service and provide something useful for the society.” While Corts said he didn’t like the “pervasively sectarian” term used in the California decision and others, he said that the ruling was an important one.

Many Christian colleges are experiencing significant enrollment growth and so need to expand facilities. Bonds “can be an important tool for some of our colleges,” he said.

The choices may be more difficult for public colleges, more of which may be facing lawsuits if they have policies that distinguish in significant ways between religious and non-religious student groups.

Lynn, of Americans United, said he fears that the direction of the courts is such that the only way public colleges will be able to avoid “subsidizing religion” is to stop funding any student activities at all. He said some activities might become part of academic departments, and many others would just have to raise money directly from participants, rather than relying on a student fee structure.

“I would just get rid of student fees paying for student groups,” he said. But Lynn acknowledged that such a move would be disruptive and unpopular on most campuses. He said he believed his view represented fidelity to the separation of church and state, but added that “I know I’m not a college president.”

White, the legal consultant to colleges, said that would be “a real overreaction.” But he said that there is a fundamental contradiction in the First Amendment’s protection of free expression and its separation of church and state. It really can be a “damned if you do and damned if you don’t” kind of situation, he said.

For now, he said he would advise colleges to be sure their rules are “very narrowly tailored” so that any limits on the use of student fees are clearly defined and consistently applied. He said he wouldn’t tell a public college president to eliminate all limits on use of funds to support religious activities, but he would warn a president that preserving such limits could be complicated. He said the advice is actually similar to what he would say if asked about affirmative action these days.

“I would say that there are dedicated opponents and judges sympathetic to the opponents and very difficult constitutional principles to apply, and the stakes are high because emotions tend to run high in this kind of litigation,” he said. “Before we take a highly public stand, let’s make sure we understand the complex constitutional provisions that come into play and are prepared for the public relations and political warfare that is always a feature.”

Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes, said he also thinks that it’s time for public colleges to act with care, but not to assume that their policies are necessarily in trouble. “I think the pendulum is beginning to swing to give the benefit of the doubt to religiously oriented organizations, rather than seeing their very presence in an educational setting as violating the First Amendment,” he said.

But at the same time, there have been “idiosyncratic qualities” to each of the cases, so there could be new standards that emerge as more cases are considered.

But Steinbach said one lesson from the cases — and especially the William & Mary dispute over a cross in a chapel — was that the realities of these issues can be as much political as legal. He added: “Senior leaders of colleges really need to measure the broad-based political climate in making these kinds of determinations, and recognizing the potential, especially in terms of religion, for backlash.”

— Scott Jaschik

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