Taking Sides

WASHINGTON – The U.S. Supreme Court is about to consider a higher education case that has largely been seen as pitting the rights of gay students against the rights of religious students. But on Monday, the deadline for various groups to file briefs in the case, major higher education associations entered the dispute, arguing that the case should really be seen as about academic freedom.

Led by the American Council on Education, 14 higher education organizations backed the right of the Hastings College of Law (part of the University of California) to deny formal recognition or funds to student organizations that violate the law school’s anti-bias policy. Among the forms of discrimination that policy bars is bias based on sexual orientation, and the Christian Legal Society, which is challenging the policy in court, bars gay members from joining.

The dispute between Hastings and the society is similar to ones between the religious organization and a number of other public law schools, and to disputes at other public colleges over Christian fraternities. Some federal courts have ruled in favor of the Christian organizations, which have argued that their First Amendment rights are violated when public colleges refuse to recognize them. They maintain that such policies infringe on the rights of religious students to form groups consistent with their faith.

Other courts, including those that reviewed the Hastings case, have found that public colleges are within their rights to enforce anti-bias policies. These courts have generally noted that the colleges apply their policies in ways that are consistent and that are not designed to limit particular beliefs.

While the American Council on Education and other higher education groups are backing Hastings, several Christian colleges and an association that represents them are backing the Christian student organizations. While the legal dispute in question concerns the conduct of public colleges, the Christian colleges argue that a win for Hastings before the Supreme Court could endanger their right to hire only faculty members who share their religious beliefs.

The Academic Freedom Argument

The American Council on Education’s brief goes out of its way not to state whether public colleges should apply their anti-bias policies to religious groups. The brief notes that many public colleges have policies that are quite similar to that of Hastings, but that many others (in some cases because of the threats of lawsuits) don’t. And still others have policies that require all groups to open their membership to everyone, but allow policies that only let members who share a group’s faith be its leaders.

The brief says that these policies can all be seen as reasonable “educational judgments.” Since educators widely agree that the out-of-classroom experience is a key part of the learning process, the brief says, colleges have every right to create rules for that part of campus life. “The First Amendment provides colleges and universities breathing room for their educational judgments,” and this is part of the judicial respect accorded to academic freedom, the brief says.

Colleges like Hastings, the brief says, are not infringing on the rights of religious students. Rather, they are adopting a reasonable policy that “all students should have access” to all registered student organizations. And that is part of what prior Supreme Court decisions have respected as the right of colleges to “have the freedom to make decisions about how and what to teach,” the brief says.

While the Christian Legal Society has argued that its First Amendment rights are being violated, the brief says colleges also have rights. “[S]tudent organizations are not the only ones with First Amendment rights at stake in this case. Hastings and many other institutions have made an academic judgment that membership in [student organizations] is an important opportunity for learning and that this opportunity -- created and funded with that specific purpose in mind -- should be available to all.”

The brief also questions the ideas put forth by the Christian Legal Society and its defenders that a victory for Hastings in the case could effectively prevent Christian students from doing anything organized at public campuses. The brief notes that while official recognition gives student groups some additional rights (and money), the lack of that status does not kick anyone off campus, at Hastings or at other colleges. The Christian Legal Society has never been barred from meeting nor have its members been barred from talking about their views or encouraging others to join, the brief notes.

Similar arguments were made in a brief also filed Monday by a group of state universities and university systems that have policies similar to those of Hastings -- and that want to continue such policies. “Nondiscrimination policies are viewpoint neutral…. [T]hese policies do not single out religious organizations. They apply to all student organizations, whether religious or not,” says the brief.

One of the arguments put forth by the Christian Legal Society and its supporters is that the anti-bias rules leave the potential for students who disagree with a group to join en masse for the purpose of destroying a group. But the state universities’ brief calls this an “extremely remote possibility” and states that the “broad range” of groups at their campuses -- including religious groups -- demonstrates that it is possible to abide by the rules and not be taken over, and that this is in fact the well-established norm.

“Requirements that student organizations accept all students give all students an equal opportunity to utilize publicly-funded facilities and public funds, and they allow students to arrive at their own views by interacting with persons from different perspectives,” says the brief. It was submitted on behalf of the California State University System, Oregon State, Pennsylvania State, Portland State, and Rutgers Universities; the Universities of California, Kentucky, Montana, Oregon, and Rhode Island; and the University System of Maryland.

Another brief filed Monday offered backing for Hastings from the Association of American Law Schools. This brief notes that the association requires members to provide equal opportunity to all students, regardless of race, ethnicity, gender, religion, disability or sexual orientation. While the association leaves to its members how to carry out that requirement, the brief argues that a policy like the one at Hastings is one way to do so. "A decision to constitutionalize this area of sensitive educational judgment would rigidify the policy choices of state-supported AALS member schools, and thereby undermine the principles to which the AALS and its members are committed," the brief says.

The Religious Argument

While some higher education groups want the Supreme Court to focus more on the academic freedom issues, others want the justices to act in a way that affirms the right of religious colleges to apply religious tests for some or all hiring. If Hastings wins the case, these colleges say in a brief, there will be “little constitutional protection” for religious employers, especially those that participate in any federal programs, as most Christian colleges do with regard to student aid.

This brief was submitted by, among others, the Council for Christian Colleges and Universities, Azusa Pacific University, Colorado Christian University, and Regent University. Federal law currently grants these and other religious colleges the right to limit employment to those who share their religious views -- even though non-religious organizations may not discriminate in hiring based on religious views. This exemption for religious colleges could be at risk, the brief says, if the court rejects the idea that religious student organizations deserve a similar exemption.

And these Christian colleges would see their very identities destroyed in such a scenario, the brief says. “Hiring based on religion is to many religious organizations what hiring based on academic excellence is to Harvard or what hiring based on software proficiency is to Microsoft, or what hiring based on a commitment to the environment is to the Sierra Club,” the brief says. “It is not inherently invidious for employers, whether religious or secular, to require employees to adhere to their institutional values.”

Other religious organizations that filed briefs on behalf of the Christian Legal Society include the officers and past presidents of the Evangelical Theological Society, the American Islamic Congress, the National Council of Young Israel, and the Baptist Joint Committee for Religious Liberty. (All of the briefs may be found on this Web site maintained by the American Bar Association, but the briefs filed Monday in the case had not been added as of Monday night.)

The Jesuits and the Bishops

Not every religious group is backing the Christian Legal Society.

Among the groups joining the American Council on Education brief was the Association of Jesuit Colleges and Universities. While the brief takes no stand on Roman Catholic teachings, the Jesuit endorsement was unexpected because the U.S. Conference of Catholic Bishops last month filed a brief backing the Christian Legal Society in the case. However, the bishops and the brief backed by the Jesuits are focusing on different issues.

The bishops’ brief states that it is entering the case out of concern that lower courts are making no distinction between what the brief considers principled opposition to gay sexual acts and bias against people who have a gay sexual orientation. The brief says that the bishops believe that all people, include those with a gay sexual orientation, should enjoy “equal protection of the laws and freedom from unjust discrimination.” But the brief also argues that it is not inconsistent for the bishops also to believe that “extramarital sexual conduct (including same-sex sexual conduct) is harmful to the person and morally illicit.”

When people and courts don’t accept the right of the bishops and others to have both of those beliefs, they stigmatize those who hold them as bigoted and deny their rights to be heard, the brief says. A key fact for the Supreme Court to consider, the bishops argue, is that the Christian Legal Society wasn’t enforcing its rules based on orientation alone, but was only excluding students for “unremitting engagement in or advocacy for extramarital sexual activity.” Because orientation wasn’t at issue, they argue, Hastings should not have denied the group recognition.

The Rev. Charles L. Currie, president of the Jesuit college organization, said that he did not “see any fundamental difference” between the bishops’ brief and the American Council on Education brief. “Both oppose discrimination, but see it manifested in different ways.”

Father Currie said that the Jesuit colleges joined the ACE brief “because of the educational value of student organizations being open to the different perspectives provided by diverse membership. A university should have the freedom to require such openness. If a group does not want to abide by that requirement they in turn have the freedom not to seek official recognition.”

He added that “we see our support of this brief as support for academic freedom, ecumenism and inter-religious dialogue, values that we find especially important in the education of students today. We respect the fact that others might approach the situation differently.”