Legal issues

FERPA Allows More Than You May Realize

Recent campus incidents have highlighted the importance of effective communication among administrators, faculty, and staff, as well as between campus representatives and students, families, and surrounding communities. Some commentators have argued that these incidents prove the need to amend the Family Educational Rights and Privacy Act, the federal statute known as FERPA that protects student privacy, in order to permit greater disclosure of information about troubled students. Actually, the current law works well, but colleges and universities need to better understand what that law really provides -- and each institution needs to develop an internal consensus on how to approach the policy choices FERPA allows it to make.

Colleges have worked hard to educate their employees on the importance of protecting student privacy. This effort has been motivated in large part by the need to comply with FERPA. For example, following the terrorist attacks of 9/11, many campuses had to remind their personnel to protect the privacy of students against illegal disclosures of information motivated not by rational concern but by prejudice and bias many outside academe had against certain international students.

Legitimate interests in student development have also motivated concerns for privacy. Under ordinary circumstances, according college students a measure of privacy -- even (or perhaps especially) from their own parents -- can without question help their development into independent, autonomous adults. FERPA itself actually reflects this period of transition by shifting primary legal control of the student’s records from parents to the student once the student attends a college or university.

In some circumstances, FERPA has been invoked as the reason not to share student information, when in reality the law would permit disclosure but the interests of student development and autonomy weigh against it. For example, FERPA permits but does not require colleges and universities to notify a student’s parents of certain drug and alcohol violations of the institution’s disciplinary code. Many institutions do not notify parents of every incident involving a minor illegally in possession of alcohol, choosing instead to begin with an educational intervention to assist the student in making better choices, and only notify parents in cases of repeated, serious, or dangerous violations.

The decision not to disclose less serious violations is a policy decision, and should be understood and described as such. It should not be held out as a decision required by FERPA. Unintended and potentially dangerous consequences can arise if legitimate policy goals are confused with legal mandates because institutions may then forget that FERPA grants them discretion. It is especially important to remember that FERPA expressly permits appropriate disclosures in times of actual or potential emergency, as well as in various less drastic circumstances in which an individual seeks to communicate sincere concerns for a student’s well-being or the public welfare.

Although FERPA restricts disclosures of information obtained from a student’s records, it was never intended to act as a complete prohibition on all communications. One threshold point that is often overlooked is that FERPA limits only the disclosure of records and information from records about a student. It does not limit disclosure or discussion of personal observations.

In other words, if a college or university employee develops a concern about a student based on the employee’s observations of or personal interactions with the student, the employee may disclose that concern to anyone without violating, or even implicating, FERPA. (Of course, there may be other reasons an institution would not want to, or could not, disclose that concern, and, in most cases, the initial disclosure should be made to professionals trained to evaluate and handle such concerns, such as campus mental health or law enforcement personnel, who can then determine whether further and broader disclosures are appropriate).

Even when information is part of a student’s records and therefore covered by FERPA, the law provides several exceptions that permit appropriate communications under circumstances in which the student or others may be at risk of harm. For example, FERPA expressly permits the disclosure of information from a student’s records “…to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

This exception doesn’t permit indiscriminate disclosures of personal information, but it does set a fairly low threshold of good faith for determining when disclosures are needed to protect health or safety, what disclosures are appropriate, and to whom they may be made. FERPA also permits disclosures, among others, of any information about a student to other college officials with legitimate interests in the information or to the parents of that student if he or she is their dependent for tax purposes; of information regarding the results of certain student conduct proceedings involving violence to the general public; and of any relevant information to other schools where a student seeks or intends to enroll.

The National Association of College and University Attorneys (NACUA) has just published a “FERPA and Campus Safety” Q & A to provide accurate information about FERPA to campus administrators and others. This document answers frequently asked questions about FERPA and suggests important elements to consider in setting institutional policies. And while advocating compliance with FERPA, it also puts into perspective the critical importance of campus and public safety in today's world.

This is not to suggest that colleges and universities that have dealt with complicated situations and made difficult decisions have done so in anything less than good faith. Nor, certainly, is it to say that concerns for student development and autonomy have no place in the analysis when determining what, when, and to whom to disclose. But institutions should recognize these concerns for what they are -- self-imposed policy constraints, not legal mandates -- and balance them accordingly, and responsibly, against other equally relevant policy considerations such as safety. If we don't, others may well make the choice for us, quite likely without full consideration of the factors that are important to us and in ways that we won't like. It is thus critical that colleges and universities evaluate in advance both their understanding of FERPA and how they will exercise their discretion under it in response to campus incidents.

Nancy E. Tribbensee and Steven J. McDonald
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Nancy E. Tribbensee is general counsel for the Arizona University System. Steven J. McDonald is general counsel at the Rhode Island School of Design.

The Court Got It Right

This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong -- and it’s important for both students and university administrators to understand why.

In February of 2006, Christian DeJohn filed a complaint in federal district court alleging that Temple had violated his First Amendment rights by punishing him for political expression. Among other serious allegations, DeJohn’s complaint charged that Temple’s sexual harassment policy (which, for example, prohibited “generalized sexist remarks”) violated his First Amendment right to free expression. DeJohn asserted that he felt inhibited from discussing his views on the role of women in the military, among other issues, and worried that he could be punished under Temple’s policy for expressing his opinions.

Seeking to obviate DeJohn’s First Amendment challenges, Temple revised its sexual harassment policy in 2007 by scrapping the sections of its policy at issue before the district court. Having done so, Temple asked the court to dismiss the portion of DeJohn’s complaint that related to the sexual harassment policy. However, the district court denied Temple’s motion, arguing that nothing prevented Temple from reinstituting the original policy following the conclusion of DeJohn’s suit. In March 2007, the district court found Temple’s now-abandoned sexual harassment policy to be unconstitutional on its face and issued an injunction against its enforcement.

Temple appealed the district court’s ruling to the Third Circuit in April 2007. This month, the Third Circuit ruled in favor of DeJohn, concluding that Temple’s former sexual harassment policy was unconstitutionally overbroad and affirming the lower court’s holding. Explaining that “[d]iscussion by adult students in a college classroom should not be restricted,” the court found that Temple’s former policy prohibited constitutionally protected speech and was therefore unacceptably overbroad.

Some critics of the opinion argue that the court should have found DeJohn’s claims moot since the university voluntarily revised the policy before the appeal was heard. But in the opinion, the Third Circuit rejected the mootness argument. Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.” Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.

Indeed, Temple’s brief on appeal argued vehemently for the constitutionality of its former policy. Temple’s aggressive defense of its policy was fueled by outside events: between the time the District Court found the policy unconstitutional and the Third Circuit was to hear the appeal, the U.S. Supreme Court issued a significant decision that Temple hoped would change the outcome of its case.

In Morse v. Frederick, decided in June 2007, the Supreme Court held that a public high school did not violate the First Amendment in suspending a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. In their appellate brief, Temple seized on Morse and sought to expand its holding. Temple contended that Morse granted public colleges broad authority to restrict the speech of adult college students in the same way that high schools could regulate the speech of their students (who are generally under 18) -- an expansion particularly threatening to free speech and academic freedom on college campuses. As a result, Temple argued, its sexual harassment policy was acceptable in the post-Morse environment.

Given Temple’s argument that its sexual harassment policy was constitutionally permissible in light of new legal precedent, it is not surprising -- and hardly a mark of activism -- that the Third Circuit felt compelled to issue a decision on the case. But in reaching its decision on mootness, the Third Circuit did not fashion new legal principles out of whole cloth. Rather, the court followed the explicit guidance of its own precedent -- which, as the opinion notes, “articulate[s] the burden for the party alleging mootness as “‘heavy,’ even ‘formidable.’” Indeed, every aspect of the Third Circuit’s decision relies heavily on appropriate precedent, whether from its own appellate decisions or those of the Supreme Court. If anything, Temple’s brief argued for the more “activist” outcome by claiming that the Supreme Court’s narrow holding concerning high school students in Morse could be used to justify maintaining an overbroad speech code in the collegiate setting. Had the Third Circuit applied a high school case like Morse to colleges and universities, the resulting opinion would have represented a sea change in our legal thinking about college students’ rights, opening the door to the wholesale evisceration of free expression on campus.

Not only is the Third Circuit’s ruling in DeJohn not “activist,” it is not political, as some have charged. DeJohn is squarely in line with 50 years of Supreme Court decisions placing special emphasis on the importance of free speech in higher education, as well as two decades of district court decisions uniformly ruling that at public colleges, speech codes (often masquerading as anti-harassment policies)are unconstitutional. In this case, opposition to Temple’s speech code brought together groups as ideologically varied as the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Student Press Law Center, Students for Academic Freedom,, and the Alliance Defense Fund. If anything, opposition to speech codes has transcended partisan divides, as judges and advocacy organizations from all over the country and the political spectrum agree that such codes are incompatible with fundamental First Amendment freedoms and the unique role of the university in American life.

DeJohn’s critics also argue that the Third Circuit erred by considering DeJohn’s claims against Temple without what they consider to be ample evidence that DeJohn had been specifically harmed by Temple’s sexual harassment policy. Robert M. O’Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression, told Inside Higher Ed that he found the Third Circuit’s opinion to be “very ominous” because he believed the court did not sufficiently consider whether DeJohn was actually affected by the policy. O’Neil said the court offered “no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy.”

Facial challenges for overbreadth are a unique, well-established and crucial aspect of First Amendment law. Recognizing that First Amendment rights are “supremely precious in our society,” the Supreme Court developed the overbreadth doctrine to protect speech from the chilling effect that occurs when a law or regulation is written so broadly that it reaches substantial amounts of protected speech. Plaintiffs may challenge allegedly overbroad statutes “as written,” rather than “as applied,” on behalf of those not in front of the court. The idea is that anyone subject to a law or policy that restricts his or her right to freedom of speech may challenge it on behalf of all citizens negatively affected by the constitutional violation.

Contrary to O’Neil’s characterization that there existed “no proof” that DeJohn “reasonably felt threatened” by Temple’s policy, the Third Circuit determined that, as a Temple student, DeJohn suffered from the policy’s existence. As the court noted, DeJohn argued that the policy made him feel “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, the policy had an impermissible “chilling effect” on his right to free expression. DeJohn was “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the university” -- and by concluding that Temple’s policy “provide[d] no shelter for core protected speech,” the Third Circuit accepted these concerns as legitimate and reasonable. Because the Supreme Court has held that even a fleeting loss of First Amendment freedoms “unquestionably constitutes irreparable injury,” the Third Circuit was absolutely correct in determining that DeJohn had suffered sufficiently to entertain his facial challenge.

The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.

The Third Circuit adhered strictly to the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, a 1999 opinion holding that actionable harassment is limited to that behavior so “severe, pervasive, and objectively offensive ... that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Third Circuit made clear in DeJohn that Davis’s standard must be carefully followed, writing that “[a]bsent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work,” harassment policies like Temple’s provide “no shelter for core protected speech.”

If anything, the most noteworthy aspect of the Third Circuit’s ruling was the court’s refusal to import Morse’s restrictions on student speech into the university setting. That is a victory, because treating the First Amendment rights of university students as functionally equivalent to those of high school students fundamentally confuses the unique pedagogical missions of each level of schooling. The Third Circuit’s clear pronouncement that the First Amendment rights of adult college students must not be abridged should be welcomed by public universities, not feared.

William Creeley, Samantha Harris and Greg Lukianoff
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Will Creeley is a lawyer and the director of Legal and Public Advocacy for the Foundation for Individual Rights in Education. Samantha Harris is a lawyer and the director of Spotlight: The Campus Freedom Resource for FIRE. Greg Lukianoff is a lawyer and president of FIRE.

Sotomayor and Our Future

Sonia Sotomayor’s nomination marks a historic occasion in America. Assuming she is confirmed, being the first Latina to serve on the Supreme Court will cause enormous cultural ripple effects. Just as the aspiration to become president became more authentic for black children who witnessed Barack Obama’s election, Sotomayor’s confirmation will provide inspiration for young Latinos to dream big. But we must tread lightly.

Many try to use Obama’s election to declare the country to be in a “post-racial era” – a fact apparently confirmed by the election of a black man, proving that racism and discrimination are behind us. If we’re not careful, Sotomayor’s confirmation could be used by some as evidence that the educational system is fine and provides all with equal opportunity to attain the American dream.

The reality, of course, is more complex.

Public discourse over the meaning of Sotomayor’s nomination has in recent weeks become a convenient vehicle for some to debate affirmative action. This debate cuts two ways. While some use Sotomayor's nomination to claim we have leveled the playing field and reached a post-racial era, there is also a vocal contingent accusing her of being racist and of being too pro-affirmative action. The fervor caused by her statements about the contributions of a "wise Latina," or the troubling lack of Latino faculty members in her own education is a potent reminder of how unwilling we all are to engage in a constructive discussion about the role and significance of race and ethnicity in American society. I plan to join this debate and make the case in a future essay about the utility of affirmative action policies and practices. We must be willing to engage in real discussions about how race and ethnicity can describe us, not divide us.

The Latino population in the United States -- Mexican, Puerto Rican, Dominican, Cuban, Central American and others -- is the youngest and fastest growing segment of an increasingly diverse United States. But we are still disproportionately poor and undereducated. Nowhere is the division between Latinos and other ethnic groups starker than when it comes to achievement in higher education. Research, as well as personal experience, shows that race and ethnicity do matter. In fact, paying attention to differences while working to engage and serve all Americans is the hallmark of the most effective higher education reform efforts. But while our country has witnessed a steady increase in college participation rates for Latino students, up almost 25 percent between 2000 and 2004 according to the U.S. Department of Education, completion rates for Latino students have barely changed in three decades.

That’s not due to lack of desire: A recent survey sponsored by Oppenheimer Funds Inc., "College Within Reach," shows that Hispanic Americans are strongly committed to a college education as a part of fulfilling the America dream. In fact, 61 percent of Hispanic parents agreed that Obama's rise to the presidency "proves that a good education makes anything possible." In a floundering economy, however, only a small percentage is able to save up enough to make that dream a reality.

Sotomayor, who from humble beginnings in the South Bronx went on to excel at Princeton University as an undergraduate and at Yale University’s law school, is an extraordinary striver. She will be, and should be, an inspiration for young Latinos and Latinas -- in fact, for all young people. She is exceptional and the exception. We must not allow recognition of her achievements to mask the challenges faced by Latinos across this country for whom an Ivy League education is out of reach.

Nor should she be attacked for being mindful of the range of unique experience she brings to the Supreme Court as a Latina. Society is strengthened when leadership in the White House and state houses, in corporate boardrooms and federal and state courtrooms, and on campuses and in classrooms more fully reflects and acknowledges the challenges of the least well served of our population.

The opportunity for America lies in harnessing the potential of our young Latino population and helping them – and as a result, the nation – to thrive. This is not simply an issue of good will but a matter of necessity. Today, 37 percent of the more than 40 million Latinos in this country are under 20 years of age. By 2020, Latinos will make up 22 percent of the nation’s college-age population, according to demographic estimates today. The critical question is whether Latinos will actually reach college and, once there, succeed.

We need an expanded, educated workforce to manage the jobs of the future, but America’s workforce is increasingly falling behind the pack, becoming less skilled and less competitive. According to a 2007 report, while 30 years ago the United States could claim 30 percent of the world’s population of college students, that proportion has fallen to 14 percent and is continuing to decline.

The coincidence of a Latino population boom and a projected American workforce unprepared for high-skill jobs of the future is sometimes described as a crisis and used to forecast the end of U.S. economic dominance. But that’s a skewed picture. There are many benefits to a booming U.S. Latino population comprised of ambitious, hard working individuals, simply waiting to be tapped. "Latinos have saved our country," argues Ken Gronbach, author of The Age Curve: How to Profit from the Coming Demographic Storm. "They represent 14 percent of the population but 25 percent of live births. The United States is the only Western industrialized nation with a fertility rate above the 2.2 percent replacement rate." Latino growth spurs the economy, contributes to keeping the Social Security system solvent, and will help prop up the real-estate market once the economy begins to recover.

But Latinos can do more than revive markets and pay for aging baby boomers — we can produce more extraordinary teachers, scientists and judges. Those concerned with the development of America’s human capital, as well as those who advocate on behalf of underserved Latino communities nationwide, can agree on one thing: Education, and particularly higher education, is, and has always been, the most promising pathway to a brighter future.

A new report from Excelencia in Education, Leading in a Changing America: Presidential Perspectives from Hispanic-Serving Institutions, shows how some colleges and universities have found innovative ways to significantly increase the successful participation of “nontraditional” students: those who are part-time, lower-income, commuting, older and students of color. Most Hispanic students fit these categories, and they thrive with culturally relevant support and scheduling that addresses the realities of their lives.

These institutions are front runners as the country is nearing a paradigm shift in education. Many colleges and universities still don’t adequately meet the needs of a large percentage of the Latino college-age population. If Latino college degree production does not improve, the country’s projections for college degree production will not improve. Where will that leave us in 2050, when Latinos are predicted to be a fourth of the population?

Responding to this challenge requires keeping Latino academic expectations high for the newly arrived, as well as for Latinos who have been in this country for generations --and encouraging all to fully participate in American society. The significant numbers of Latinos in the armed services demonstrates their willingness to invest in this country. Imagine matching their commitment to this country with real access and support to earn a college degree.

By implementing strategies to help Latinos succeed in higher education, we ensure that our country remains competitive, that a greater segment of the U.S. population succeeds economically, and that we enhance the opportunity for this country to be strengthened by the outstanding abilities of those who will follow Sotomayor’s path. Already, it’s possible that somewhere in our country the first Latino – or Latina – President of the United States — sits in a classroom. This child’s potential will be fully realized when education affords him or her the best chance of achieving all that he or she dreams.

Sarita E. Brown
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Sarita Brown is President of Excelencia in Education, an organization that aims to accelerate Latino higher education success.

Not So Wilde

Our long national nightmare is over ... at least until next time. The trial of Michael Jackson has now moved into the phase of "post-production," as they call it in Hollywood. Now work is under way on the voice-overs and flashbacks -- and the crews are getting ready to start broadcasting the next celebrity legal circus.

On Monday -- just a day before the verdict was announced -- Elaine Showalter published a short essay in the Los Angeles Times comparing Jackson's trial to the legal ordeal of Oscar Wilde in 1895. "Wilde too was a celebrity, as a writer and as a performer," she wrote. "Like Jackson, Wilde was seemingly brought down by self-destructive acts." In each case, "accusations of homosexual pedophilia have struck a deep chord of moral outrage."

"Wilde," according to Showalter, "was convicted of what the Victorians, with their gifts for euphemism, called 'gross indecency.' Despite the specific charges against him, gross indecency also seems to be the underlying accusation in the Jackson trial."

It's by no means clear that the term "gross indecency" could be regarded as euphemistic, even in the Victorian context. By contrast, Wilde's reference during the trial to "the love that dare not speak its name" was a memorable case of euphemism yielding eloquence.

The problem with Showalter's essay turns on more than semantics, however. Sure, there are points of similarity between the trial, but even a brief comparison of them shows that the differences are huge. Some currents in American culture might be dubbed Victorian -- if only through an abuse of analogy. The real connection between Wilde and Jackson is a little less obvious, though, and perhaps more worrisome.

Now, to be honest, I did not follow the recent trial very closely. The nature of this kind of spectacle is that, unless you make every effort to remove yourself from the "flow" of current media, a certain amount of information imposes itself on your awareness, come what may.

The Wilde trial fascinated its public because it was the revelation (a momentary glimpse) of something ordinarily hidden. The Jackson trial, by contrast, was an instance of what Jean Baudrillard has dubbed "the obscene" in the postmodern sense -- a mode in which nothing is concealed, in which every sign or bit of information manages to circulate. ("Obscenity begins," as Baudrillard puts it, "when all becomes transparence and immediate visibility, when everything is exposed to the harsh and inexorable light of information and communication.")

Reading the transcripts of Oscar Wilde's trials (there were three of them), one thing you soon notice is that his creative work and his vision of the world were under just as much scrutiny as his private life. If anything, his aesthetic sensibility (in particular, his insistence that art and morality had nothing to do with one another) was slightly more horrifying to the authorities than his sexual tastes. The power of Wilde's art to corrupt the minds of the young incensed the Victorians even more than what he did with any given teenage male prostitute.

The standoff between the attorney Edward Carson's high-minded outrage and Wilde's defense of art-for-art's-sake makes for a transcript that reads like an excerpt from one of Wilde's plays.

Carson: A perverted novel might make for a good book?

Wilde: I don't know what you mean by a "perverted" novel.

Carson: Then I will suggest Dorian Gray as open to the interpretation of being such a novel?

Wilde: That could only be to brutes and illiterates. The views of Philistines on art are incalculably stupid.

Carson: An illiterate person reading Dorian Gray might consider it such a novel?

Wilde: The views of illiterates on art are unaccountable. I am concerned only with my view of art. I don't care twopence what other people think of it.

Carson: The majority of persons would come under your definition of Philistines and illiterates?

Wilde: I have found wonderful exceptions.

Carson: Do you think that the majority of people live up to the position you are giving us?

Wilde: I am afraid they are not cultivated enough.

Carson: Not cultivated enough to draw the distinction between a good book and a bad book?

Wilde: Certainly not.

Carson: The affection and love of the artist of Dorian Gray might lead an ordinary individual to believe that it might have a certain tendency?

Wilde: I have no knowledge of the views of ordinary individuals.

Carson: You did not prevent the ordinary individual from buying your book?

Wilde: I have never discouraged him.

Were sparks this brilliant ever struck during the past few months? Did the relationship between Jackson's art (or entertainment, rather) and his life ever come up for questioning?

Who can doubt that, were Jackson to announce his intention to take up residency in Massachusetts so as to marry a longtime boyfriend of suitable age, the response of most fans would be to send a card expressing best wishes?

Let's not pretend that nothing has changed in 110 years. I bet Hallmark has the design all worked out.

Wilde was accused and convicted of defying the norms of his day. That was the source of the case's resonance, at the time. And Wilde himself embraced (in however complex and ironic a manner) the idea that he had violated the established code. Later, when asked how he survived prison, he responded: "I was buoyed up with a sense of guilt."

Today Wilde looks heroic. What to his contemporaries would have seemed like incorrigibility, we now honor as fidelity to his own nature.

In any case, the hold of Wilde's case on the public mind was -- and still is -- a matter of his grand transgression. It bears scarcely any resemblance to the fascination evoked by Michael Jackson, who embodies something quite different: regression. His retreat to a childlike state appears to be so complete as to prove almost unimaginable, except, perhaps, to a psychiatrist.

Freud wrote of a neverending struggle between the pleasure principle (the ruling passion of the infant's world) and the reality principle (which obliges us to sustain a certain amount of repression, since the world is not particularly friendly to our immediate urges).

Wilde was the most eloquent defender that the pleasure principle ever had: His aesthetic doctrine held that we ought to transform daily life into a kind of art, and so regain a kind of childlike wonder and creativity, free from pedestrian distractions.

Like all such utopian visions, this one tends to founder on the problem that someone will, after all, need to clean up. The drama of Michael Jackson's trial came from its proof that -- even with millions of dollars and a staff of housekeepers to keep it at bay -- the reality principle does have a way of reasserting itself.

And now that the trial is over, perhaps it's appropriate to recall the paradoxical question Wilde once asked someone about a mutual friend: "When you are alone with him, does he take off his face and reveal his mask?"

Scott McLemee
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A System for Fighting Digital Defamation

Part I of this two-part series argued that it was inappropriate for colleges and universities to assume responsibility under in loco parentis for protecting college students from anonymous digital defamation, and that institutions should instead empower students by educating them on available strategies and resources.

In this essay, we discuss a disaggregated solution for addressing digital defamation and the resulting disaggregated harms it causes. By establishing a database-driven Web-based litigation system, we can empower students and level the playing field so that interested students can defend themselves, and hopefully deter future digital defamation.

The Digital Defamation Problem

Juicy Campus, the anonymous gossip site that closed its doors in 2009, and its replacements, such as College ACB and Campus Gossip, allow anyone with an Internet connection to post almost any content about a student, true or otherwise. The sites themselves do not necessarily target students. Instead, these sites become a clearinghouse for disaggregated, defamatory statements that cause emotional distress. The sites structure themselves by college and then by topic or victim, making it likely that the poster lives within a few miles of the victim.

Gossip may be posted freely and anonymously across these gossip sites, but it has actual victims and real costs. After reading degrading statements about themselves, victims often feel helpless, and some engage in, or consider engaging in, self-harming activities. Victims of cyber-sliming can fight back -- but for hundreds or thousands of dollars a month. Those with financial ability can hire Web services such as Reputation Defender (a service that, for a fee, minimizes the search ranking of negative postings about the client while boosting the search ranking of positive information) or specialist attorneys (who, for a fee, will investigate and file the necessary lawsuits to clear one’s reputation).

Lawsuits can be effective. Two years ago, two Yale students saw some success in identifying and pursuing those who smeared them on the Web site AutoAdmit. If they had not been represented by lawyers without charge, their partially successful pursuit would have come at significant cost. Recently, a model, represented by counsel, successfully sued Google in New York state court to reveal the identity of an anonymous blogger who called her a “skank” on a Google-hosted blog. With the blogger’s identity revealed, the model dropped her suit.

Yet many college students who fall victim to such anonymous defamation cannot afford high-priced reputation-clearing services or legal representation, and can fall victim to these brutal attacks with few options for fighting back. While the weapons for anonymously hurling invective across cyberspace have decreased in cost to where they are almost free, the solutions for, and protections from, defamation remain costly. To that end, we envision a system that allows victims of defamation to fight back, at a lower cost, with the hope that the market further lowers the costs of such protection to a level that deters anonymous cyber-sliming.

A Disaggregated Solution

Due to the disaggregated nature of anonymous defamatory attacks against students, even colleges who would welcome their role in loco parentis cannot take on these Web sites or their anonymous posters. Due to mirror sites and easy off-campus Internet access, blocking access to such sites is ineffective in the long term. Rather, the most effective and practical method is for colleges to educate students on how to protect themselves against digital defamation.

To that end, we propose a disaggregated digital solution to this disaggregated digital problem: a database-driven, Web-based litigation system that would allow students to file suit using fill-in-the-blank legal forms. When student affairs staff members are approached by student victims, in addition to offering counseling, they can direct the student to a system where the student can engage in self-help.

Establishing such a system will come at significant cost – a cost that can only be borne by a large organization possessing the funds to develop and host the site and the staff to keep it updated as laws and standards change, to provide technical support to student victims, and to ensure that it does not violate state rules against improper practice of law.

Possible candidates include the Anti-Defamation League, national student advocacy groups and national student affairs professionals groups. Other candidates include law school clinics whose students could design such a site and assist student victims in reclaiming their reputations. Likewise, for-profit private sector entrepreneurs may find an opportunity here.

The system’s goal is to educate students about the general laws of defamation, and guide them through the process of bringing a lawsuit in the proper court. While most lawsuits would be for false and libelous defamation, even true statements can sometimes be so vile that they qualify under certain state laws governing intentional or negligent infliction of emotional distress (I.I.E.D.).The beauty of a database-driven system is that it could equally provide for an I.I.E.D. claim in those states where such a claim is allowed.

Defamation suits must be brought in state court except in rare, complicated cases. Which state’s court is appropriate depends on several factors. Since most of these claims will result from postings in forums dedicated to the college or university that the victim attends, that state’s courts will likely assert jurisdiction over the matter.

Gossip sites like Juicy Campus or College ACB “do business” in any state in which they establish a forum for gossip at a college located there. Further, the publication would occur in that state (among others) while the victim, and most likely the harasser, live in the same state. Like all lawsuits, these suits will not succeed every time, and some courts may decline jurisdiction. But, for many students, the system will take them down a path toward discovering the identity of their harassers and pursuing legal remedies against them.

The System for Fighting Back

The first step a student must take after viewing a cruel gossip post is to analyze the content of the post -- honestly. Although something is hurtful, it might not qualify as defamation. Truth is not defamation. Additionally, laws typically require that the poster had to know, or reasonably should have known, that the post was false when he or she posted it. Further, the post must be a factual statement; opinions are usually fair game. The student must differentiate between “John Jones is a drug addict” (claim of fact) and “John Jones acts like a stoner” (opinion).

Admittedly, this is a difficult line to draw for Constitutional scholars, and it will not be easy for college students without assistance. A well-designed system could include a “wiki”-style guidance document where those who bring successful cases or bring significant knowledge of defamation law can help students determine if a statement meets the definition. As cases progress, sharper definitions of defamatory statements may emerge. If the student concludes that the comments are really opinions, but they are “extreme and outrageous” enough to cause severe distress, the student might still have a claim against the poster for I.I.E.D.

The second step for a student is to see if they can determine who the poster is. If so, the path is easier. If not, the system would present them with a fill-in-the-blank “John Doe” lawsuit and subpoena for the gossip site hosting the comments. Using a database, the system can offer different forms and filing options depending on the state. Some states allow electronic filing while others require printing and mailing.

Once the victim sends the subpoena to the gossip site, the third step for a student is to provide some notice to the poster. One way is to post the subpoena in the same forum used for the defamatory post. If the site cooperates and releases the Internet Protocol (I.P.) address for the offending poster, the next step is to use the Internet “Who Is” database to determine the poster’s Internet Service Provider (I.S.P.), and subpoena that I.S.P. for the poster’s identity. If the I.S.P. cooperates and identifies the poster, the victim can amend the suit’s defendant to name the poster.

Some Reasonable Criticisms

It should be noted that this system is neither perfect nor free from criticism. For every success, there will be failures: paperwork lost, I.P. addresses destroyed or not captured, deadlines missed, and sites and I.S.P.’s uncooperative. It may be that few cases go to trial. Many will die on the vine due to technical or substantive problems. The successful cases, however, may result in large judgments, especially in the cases of the most malicious and untrue gossip. These cases, even if rare, may provide a deterrent against future libel. The examples of a few bright students who declare bankruptcy, cannot buy a home or have their wages garnished to pay a defamation judgment may dissuade future harassers.

A prime criticism to this system is the position that the Internet is a bastion of free speech and nothing should stand in the way of unabashed free speech. Yet, defamation and speech intended to inflict severe emotional distress is not First Amendment protected speech. States can and do regulate this type of speech. We are not seeking a new regime that silences free speech on the Internet; rather we hope to apply the same standards to the Web that govern in the real world.

Another criticism is that this system will only work to the extent that Web sites capture I.P. addresses and submit to jurisdiction. Further, some posters will use anonymizing software or post from locations that do not capture I.P. addresses. This criticism is valid, and admittedly, the system will not work entirely for every student.

However, while some sites may choose not to capture I.P. addresses, sites may begin to receive so many of these subpoenas that they comply for the sake of cost-saving efficiency. Alternatively, Congress or trial judges may begin to find bad faith in quickly deleting I.P. addresses simply to shield malicious posters from the legal system, and the legal and legislative marketplace may, thus, correct that difficulty.

Additionally, this system will not necessarily work for non-student defamation victims. The system is aimed at college students, because these sites construct forums for individual schools. Thus, it is likely that the poster and victim live in the same state (if not the same residence hall). It will not necessarily work for those targeted from other states or countries and may not help victims of attacks on personal blogs.

Further, contrary to the successful cases discussed above, courts in some states have declined to force anonymous posters to reveal themselves. Concurrently, the system will not protect against statements that do not meet the technical legal definitions of defamation or I.I.E.D., but nevertheless impose significant harm on victims. Of course, even if the system works and some victims win massive judgments, these suits may induce no more deterrence among students than did the music industry’s lawsuits.

Such a system also presupposes that a victim is willing to go on the record in suing the poster. The requirement to file openly may discourage some victims. The Second and Ninth Circuits of the federal court system, as well as many state courts, allow anonymous filing of lawsuits when, among other things, the matter is very sensitive or personal, there is a possibility of retaliation for filing suit, the prejudice to the defendant is less than the harm of identification, and when the public interest is served by such anonymity. Such a standard could be used in these cases, even recognizing the irony of filing an anonymous suit to expose an anonymous poster. At the same time, courts must be vigilant at the dismissal stage, to protect against those who seek to use the system as a weapon by filing false claims.

Establishing such a system will be expensive and difficult. It cannot be accomplished without the support of a large organization and volunteer attorneys or law students. Defamation cases are complicated and based on differing state laws. The same could be said about the thousands of pages of federal and state tax codes. Yet, companies like TurboTax and H&R Block offer database-driven Web services that allow most taxpayers to quickly and accurately file federal and state returns without ever opening the tax code.

Reclaiming a Reputation

We recognize that establishing such a system will not be an easy sell. Even considering the above, and other valid criticism, we believe that our system will empower the many student victims who have no method of fighting back against anonymous posters. It will not be perfect, yet we cannot let the perfect be the enemy of the good. Colleges and universities can educate students on ways to employ this and other disaggregated solutions; encouraging the development of this system and educating students on its use can be part of that mission.

The attractiveness of such a system is that it would help student victims help themselves. The individualistic nature of the Internet, where amateur journalists pen millions of blogs while Wikipedia entries outnumber traditional encyclopedia articles many-fold, is not well-served by a super-regulator censoring content to protect defamation victims.

Colleges cannot protect students from all of the dangers imposed by the Internet. Rather, student victims need an inexpensive, user-friendly tool to level the playing field. Developing and marketing such a system will grant victims a much-needed gift: the opportunity to take back their reputations and return to living their lives.

Benjamin Bleiberg and Joseph Storch
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Benjamin Bleiberg is a judicial clerk in the United States District Court of the Eastern District of Pennsylvania. Joseph Storch is an attorney in the State University of New York’s Office of University Counsel. In addition to campus representation, he concentrates his practice on the legal issues surrounding emerging technologies. The views expressed here are their own and do not represent the views of the State University of New York or the federal court system.

Anti-Bias Rules for Everyone

The case of Christian Legal Society v. Martinez, which will be argued before the Supreme Court today, is one of the most important debates about student rights at public colleges. The Christian Legal Society (CLS) is suing the University of California's Hastings College of Law because the group claims a religious exemption from the college's nondiscrimination rules.

At first glance, it may seem appealing to allow religious student groups to set religious rules for their leaders. But the practical effect of embracing religious oaths for student groups is a violation of individual rights, an attack on student democracy, and a potential increase in administrative power.

This dispute has its roots in the mid-1990s, when fundamentalist groups such as CLS sought to expand their influence on college campuses but feared that Christian students were becoming too tolerant of homosexuality. In 2004, CLS compelled all of its student chapters to adopt a strict Statement of Faith and standards of sexual morality for leaders, which led to the current litigation.

The First Amendment's rights to free association and free expression are paramount in particular at an institution of higher education. However, the Supreme Court has never ruled that student groups at public colleges must be given special rights due to their religious orthodoxy, and can ignore the universal rules applied to all student groups in a viewpoint-neutral manner.

Religious groups must have the freedom to express their views, even repulsive ones like homophobia. No one at Hastings ever tried to punish anyone for being in the CLS, or barred them from promoting their views. But when the society and other fundamentalist groups demand that universities violate antidiscrimination policies and the individual First Amendment rights of their students to accommodate this bigotry, they go too far.

Who Becomes the Enforcer?

Investigating the religious beliefs, moral values, and sexual activities of students is not something that any university should be doing. But if student groups are allowed to impose ideological oaths and religious tests for membership or leadership, universities are placed in impossible situations where such inquiries will be made in their names.

The CLS defenders, which include a vast group of 22 amici briefs and 14 state attorneys general, are wrong when they cite the Supreme Court precedents for a “right to exclude.” These cases, such as Boy Scouts of America v. Dale, deal exclusively with private organizations, a term that cannot apply to student groups at public colleges, which operate under the umbrella of public colleges -- receiving their funds and using their facilities.

This legal status is important because it means that there is no entity other than the administration that can adjudicate disputes over the meaning of a student group's bylaws. This ownership issue creates a fatal flaw in the CLS argument. Suppose the Supreme Court decides in favor of CLS and it receives recognition at your public college, and then it tries to kick out a member for being gay. Now think about what would occur if that student denies being gay. Do you want a public college – or a student organization acting in the college's name -- deciding whether a student is gay or not? Or whether he is a good Christian?

It is noteworthy that the plaintiffs' brief and the 22 briefs supporting it omit any discussion of exactly who shall be given the power to interpret and enforce the bylaws they deem essential to the existence of CLS at Hastings. But in such scenarios, student organizations or, in an extreme case, a college itself would be making such decisions.

The danger is even greater in this case because of the strict restrictions demanded by CLS. In order to be officers or voting members of CLS, students must sign the national CLS Statement of Faith: “Trusting in Jesus Christ as my Savior, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit. God the Father Almighty, Maker of heaven and earth. The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return. The presence and power of the Holy Spirit in the work of regeneration. The Bible as the inspired Word of God.” Virtually all of these statements present interpretative challenges. Does defining God as “maker of heaven and earth” require a belief in creationism over evolution? What does it mean to say that the Bible is “the inspired Word of God”?

But the Statement of Faith is not the only requirement for CLS leaders. The bylaws require that “Officers must exemplify the highest standards of morality as set forth in Scripture” in order “that their profession of Christian faith is credible” and must abstain from “ 'acts of the sinful nature,’ including those in Galatians 5:19-21; Exodus 20; Matthew 15:19; Romans 1:27; 1 Corinthians 6:9-10.” Envy, rage, hatred, jealousy, selfish ambitions, discord, dissensions, factions, drunkenness, greed, coveting, slander, evil thoughts, and violating the Sabbath are all prohibited by these Biblical passages.

Imagine for a minute that the CLS believes that a member was violating the statement by believing in witchcraft. She denies it. Could CLS demand that Hastings hold a witchcraft hearing?

Imagine if the leaders of a Christian Legal Society are irritating administrators with public protests against abortion rights. These administrators could retaliate by removing the student leaders for violating their own statement of faith, by accusing them of being “angry,” which is contrary to the CLS bylaws. It would be simple to accuse the leaders of some religious heresy, put them through an ideological trial, arbitrarily decree them guilty, and then remove them. So allowing religious tests in the bylaws of student groups actually increases the threat of administrative abuse because it gives the administration the power to determine the leadership of student groups. Administrators at public colleges will certainly try not to get involved in theological debates, but individual students could file complaints that CLS leaders have felt envy or violated the Sabbath, and demand that administrators (or courts) remove them from office.

Hostile Takeovers

CLS and its supporters argues that the university’s rules could force it to accept members who disagree with its mission. However, that’s essential in order to protect every student group.

It may seem strange, at first, to say that an organization might be compelled to accept leaders who appear to contradict its goals. But the phrase “compelled to accept” is inaccurate. The real meaning of an “all-comers” policy is that students are “free to elect.” No student organization at Hastings is compelled by the administration to accept anyone as their leader, because the administration does not pick the leaders. The members of expressive organizations are completely free to make belief-based choices in choosing their leaders.

The CLS brief claims that under an “all-comers” policy, “it would make it impossible to have … a vegetarian club (whose menus could be voted upon by carnivores)…” A vegetarian club can exist with carnivore members, and it should not ban meat-eaters in its bylaws. If it did, exactly what would that mean? Would a person who accidentally ingested meat be banned from the group? Can you eat a steak dinner every week but repent before dessert and become a vegetarian again? Could a vegan proclaim that non-vegan vegetarians are actually meat-eaters? Of course, these are all legitimate arguments for a vegetarian club to undertake when electing its leaders. However, by creating a constitutional ban on meat-eaters in its bylaws that overrules the democratic will of its members, the vegetarian club would require the administration (presumably a bunch of carnivores) to make the decisions about the core meaning of vegetarianism, decisions that instead should be made by the student members.

What CLS demands in this case is that administrators overrule student decisions about selecting their leaders. According to the Petitioners, “CLS is vulnerable to sabotage or takeover by a relative handful of hostile fellow students, who need only show up at a meeting en masse and exercise their rights to join and vote.”(Petitioner's Brief at 33) But hostile takeovers of student organizations are extraordinarily rare on public college campuses. There is not a single recorded case in American history where a roving gang of campus atheists have taken over a religious student group. The plaintiff's brief and all 22 briefs of amici curiae supporting the plaintiffs combined identify only two allegations of a campus group hijacking. In a 1993 case at the University of Nebraska, the College Republicans attempted to take over the Young Democrats, but there is no evidence in the record that they were successful. In a 2007 incident at Central Michigan University, a student on a Facebook page suggested (but apparently never took any action toward) a hostile takeover of a student organization.

The Supreme Court must not impose a remedy for a problem that, according to the written record of this case, does not appear to exist.

The nondiscrimination rules required by Hastings do not limit the Constitutional rights of CLS students. These rules protect the rights of these students by allowing members to select their leaders without interference from national organizations.

The demands of CLS run the risk of creating enormous governmental intervention and control over the religious views of students, a power that Hastings does not wish to have, and a power that it cannot constitutionally exercise. If the administrators of a public college evaluate the religious views of students and make theological decisions, they would be guilty of violating the long-established separation of church and state as well as the freedom of religious expression of students. For a public university to enforce the demands of external religious groups to restrict the rights of conscience of individual students is a clear violation of the First Amendment.

John K. Wilson
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John K. Wilson is the founder of and the author of Patriotic Correctness: Academic Freedom and Its Enemies(Paradigm Publishers, 2008).

Who Gets to Guard the Gates of Eden?

(This essay has been updated to reflect an amended version of the referenced court case at the University of Florida.)

As is always the case in important Supreme Court decisions, the framework chosen determines the result, and Christian Legal Society v. Martinez falls squarely within that tradition. Justice Ginsburg’s majority opinion cites Healy v. James (1972), Widmar v. Vincent (1981); and Rosenberger v. Rector and Visitors of Univ. of Va. (1995), cases that have restrained public colleges from discriminating against their student organizations due to the groups’ viewpoints. Reflecting their times, these three cases involved groups that perceived themselves as outliers: Healy involved the radical 1960s group Students for a Democratic Society, while Widmar and Rosenberger involved Christian student organizations, stealing a march on the earlier progressive student litigation.

The majority held that the exact issue was whether or not CLS could exclude members who did not conform to the group’s core beliefs: “In the view of petitioner Christian Legal Society (CLS), an accept-all-comers policy impairs its First Amendment rights to free speech, expressive association, and free exercise of religion by prompting it, on pain of relinquishing the advantages of recognition, to accept members who do not share the organization’s core beliefs about religion and sexual orientation. From the perspective of respondent Hastings College of the Law, CLS seeks special dispensation from an across the-board open-access requirement designed to further the reasonable educational purposes underpinning the school’s student-organization program. In accord with the District Court and the Court of Appeals, we reject CLS’s First Amendment challenge. Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”

Framing the issue this way, the majority held that the central question was: “May a public law school condition its official recognition of a student group -- and the attendant use of school funds and facilities -- on the organization’s agreement to open eligibility for membership and leadership to all students?” They answered “Yes.”

In the dissent, Justice Alito instead relies upon Boy Scouts of America v. Dale, the Court’s 2000 decision that allowed the Boy Scouts to exclude gays from its leadership ranks. He then parses the complex and incomplete record to find that Hastings engaged in discrimination when it denied full recognition to CLS due to the group’s bylaws, which require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles; these include the belief that sexual activity should not occur outside of marriage between a man and a woman. The national CLS interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct” or any students who hold religious convictions different from those in the Statement of Faith. Their “Statement of Faith” provides: “Trusting in Jesus Christ as my Savior, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit; God the Father Almighty, Maker of heaven and earth; The Deity of our Lord, Jesus Christ, God’s only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return; The presence and power of the Holy Spirit in the work of regeneration. The Bible as the inspired Word of God.”

Justice Alito suggests that student groups with political, ethnic, or other viewpoints would not be allowed to discriminate in their membership choices, but that religious student organization should be allowed to do so, citing Dale: “It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to discriminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude students on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for membership only if the admission of that person would ‘affec[t] in a significant way the group’s ability to advocate public or private viewpoints.’ Groups that do not engage in expressive association have no such right. Similarly, groups that are dedicated to expressing a viewpoint on a secular topic (for example, a political or ideological viewpoint) would have no basis for limiting membership based on religion because the presence of members with diverse religious beliefs would have no effect on the group’s ability to express its views. But for religious groups, the situation is very different.”

It surely is a very different situation. And the Religious Right has systematically sought for many years, including their efforts in Widmar and Rosenberger, to seek full public funding and special pleading with regard to student organizations, no longer accepting that they should render unto Caesar. They have appropriated earlier iconic liberal decisions to advance their interests. While not all religious organizations advance the same interests or adhere to the same litigation tactics, it is clear that there is a deliberate strategy employing careful, incremental, deliberate choices of which cases to bring to the court, by way of geographic and other political choices.

CLS is one example, following on a 2005 Seventh Circuit case, CLS v. Walker, in which the organization prevailed on its free expression and free association rights claims. Another such case is Beta Upsilon Chi Upsilon [BYX] Chapter v. Machen, a student organization recognition case in federal court, before the Northern District of Florida and then the U.S. Court of Appeals for the 11th Circuit. In this case, the University of Florida, which had over 750 Registered Student Organizations (RSO), including 60 religious groups, of which 48 were Christian, denied recognition to BYX, a national Christian fraternity, under Florida’s non-discriminatory regulations, which bar groups from bias on the basis of race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations, or veteran status.

Because BYX had a membership requirement that could not qualify under the university’s guidelines, it was not deemed to be eligible for RSO status. The Court found: “BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it ‘exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.’ BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems ‘a credible profession of faith in Jesus Christ.’ This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must ‘believe that the Bible is God's written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.’ Accordingly, “BYX considers Mormons and Seventh Day Adventists non-Christians.” BYX also demands moral and ‘sexual purity.’ According to its code of conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant of marriage between a man and a woman. Therefore, we will not condone such activity as homosexuality, fornication, or adultery.”

The university, rather than risk protracted litigation, capitulated after the appeals court’s oral arguments had been heard, and modified its policy to allow a religious exception: “A student organization whose primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization. The University has determined that this accommodation of religious belief does not violate its nondiscrimination policy.” By the new policy, agreed to in wake of the litigation, BYX was allowed all the benefits it had sought, and was treated as all the university’s RSOs.

But the fraternity was not mollified by its victory, contending that the University of Florida, a state institution, had done the right thing, but for the wrong reasons. The appeals court noted: “BYX is not satisfied with this result, however, and urges us to reach the merits of its constitutional claims. It ardently presses us to retain jurisdiction over this case because the University has failed to change the regulation from which the CSAI Handbook nondiscrimination policy derived: UF Regulation 6C1-1.006(1) (the “Regulation”). Furthermore, BYX is troubled by UF's timing. It contends that ‘the timing of [UF's] motion to dismiss [this appeal] indicates that it is motivated not by a genuine change of heart but rather by a desire to avoid liability.’ We are not concerned with UF's motivation for changing its registration policy, but only with whether a justiciable controversy exists. Finding that BYX has received the relief sought in its complaint, we reject its request that we reach its constitutional claims and dismiss this case, as we no longer possess jurisdiction.”

Thurgood Marshall may well have wished that the University of Texas in 1950 had behaved better and that the LDF had not been required to spend precious resources bringing Sweatt v. Painter to have its client admitted into the real University of Texas Law School, not the inferior makeshift version that the State had offered in the alternative. But once he won the case and Heman Sweatt was admitted, he did not go back to the courts to ensure that UT do so with a better attitude or “genuine change of heart.” This extraordinary line of reasoning, even when religious groups had prevailed on the merits of the case in federal court, shows the extent to which they are on a jihad and will settle for no less than winning hearts and minds, but only according to their own, narrow terms. The LDF would never have litigated that Homer Plessy was not fully Black and therefore on this basis was entitled to sit in New Orleans public transportation’s Whites-Only sections, nor would it have reasoned that Colin Powell was not African American for affirmative action purposes, because his people were from the Caribbean rather than from Africa. It surely will come as a shock to members of the Church of Jesus Christ of Latter Day Saints or others who consider themselves to be Christian that a “Christian” fraternity has expelled them from Eden and deemed them ineligible for CLS or BYX membership. And it begs the troubling question of who is entitled to trademark Christianity or to dictate who is a Christian or “morally pure.”

On the remand of the case to the Ninth Circuit, the Court seeks to determine whether UC-Hastings had actually followed its own rules in enforcing the “all-comers” policy. In this remand, I hope that the lower court will review the complex and confusing record and find that Hastings acted consistently and in good faith. I also hope all the feckless colleges that capitulated earlier will go back and restore the full anti-discrimination provisions they silently set aside. I had bet a dinner that the Supreme Court would “DIG” the case, dismissing it as improvidently granted for consideration. I also bet a different dinner that the Court would decide for the law school on a 5-4 basis. This is one meal I expect to relish.

Michael A. Olivas
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Michael A. Olivas is William B. Bates Distinguished Chair in Law at the University of Houston, and the author of the forthcoming Suing Alma Mater: Higher Education and the Courts.

Lesson From Justice Kennedy

There probably weren’t any Supreme Court justices marching in the pride marches of recent weeks. But they did give gay people a nod last Monday. In Christian Legal Society v. Martinez, the Supreme Court upheld a University of California Hastings College of Law rule prohibiting registered student organizations from excluding anyone, in this case, lesbians and gays. The Christian Legals contended that their religion forbade them to associate with people who engaged in “unrepentant homosexual conduct,” and that the law school rule violated their religious freedom in demanding open membership.

The opinion, by Justice Ginsburg, is hardly a paean to gay rights – it carefully notes that the world of registered student organizations is a “limited access public forum,” not a full public forum like a town square. A limited public forum, which carries with it benefits, is treated somewhat more like the public funding cases. People may have rights, as the Christian Legal Society claimed, not to associate, which would protect them, for example, from a law forcing them to take gay members, but they do not have rights not to associate and to still claim money and recognition from the University of California. Certainly nothing in the opinion indicates that gays and lesbians are a specially protected class such that an organization funded by the state university excluding them particularly would violate the 14th Amendment. All this opinion does is turn back the claim that religious beliefs trump all other legal claims, including the university’s rules of inclusiveness.

The opinion is noteworthy not just for what it says about public colleges and their student organizations, but also for what it may suggest about Perry v. Schwarzenegger, the constitutional challenge to California’s Prop 8, rejecting gay marriage, as it ever so slowly wends its way to the Supreme arbiters. First, the 5-4 decisions in the Hastings case was that rarest of birds, a collection of the Court’s four liberals plus the gays’ best hope: Justice Anthony Kennedy. If the case against Prop 8 has any chance in the Supreme Court as likely configured, it rests in Justice Kennedy, who wrote the opinion in Lawrence v. Texas, the 2003 case striking down the sodomy laws as unconstitutional.

Second, Justice Kennedy’s separate opinion, concurring in the opinion of the Court, is a pretty stirring argument for the Prop 8 plaintiffs coming up from California. Justice Kennedy takes time to write separately, even though he explicitly says he only speaks to support the opinion of the Court, because he wants to say a word in defense of the special role of reason in a legal system:

“Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner.... As a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior ... were those sorts of requirements to become prevalent, it might undermine the principle that in a university community — and in a law school community specifically — speech is deemed persuasive based on its substance.... A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be ... inconsistent with the basic concept that a view’s validity should be tested through free and open discussion.”

By all reports, the strongest thing the plaintiffs in Perry have going for them, beside the obvious talents of their lawyers, David Boies and Ted Olson, is the power of rational argument. To be constitutional, legislation has to have some basis in reason. Since the defendants, cleverly or foolishly, chose to limit the presentation of evidence in Perry essentially to one dubious expert, they were forced, by closing argument, to contend, simply, that Prop 8 is constitutional, because the groundless fears of a majority of the referendum voters constitutes a rational basis for legislation. This position differs radically from the arguments that the Prop 8 proponents presented in the campaign for Prop 8, which included the damage to society by treating gay and lesbian people as normal and worthy. It even differs from the defendants’ original attempts, at trial, to present evidence that the option of same sex marriage actually harms heterosexual marriage. In essence, the Prop 8 defendants are arguing that they do not have to make a substantive, rational argument for their law.

By forcing them into a court of law, the plaintiffs challenged not so much the substance of Prop 8 as its metaphysics: What counts as reason? Inchoate fears may be the currency of political campaigns, sadly. But Justice Kennedy’s opinion reminds us that they are emphatically not the stuff of the American legal system, starting with the three years in which its practitioners learn their skills. If he means what he said, this rare bird may also be the first swallow.

Linda Hirshman
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Linda Hirshman is at work on a book on the gay revolution, "Victory! How a Despised and Marginalized Minority Came Out, Pushed Back, Faced Death, Found Love and Changed America for Everyone," to be published in 2011.

Constitutional and Unwise

As an association representing institutions of higher learning, the Council for Christian Colleges and Universities is sensitive to the claims of institutional autonomy presented by the Hastings College of the Law in Christian Legal Society v. Martinez. However, as the institutions within our organization are religious in nature, we are also acutely aware of the religious freedom concerns presented by this case. Ultimately, because this decision did not determine the constitutionality of the more common "non-discrimination clauses," its limited scope is such that this ruling has little broad applicability beyond "all-comers policies" at public universities, and in many ways leaves more questions than it answers. As higher education works to understand the implications of this limited decision, and formulate policies in light of it, the academy must wonder whether all-comers policies -- in which public colleges limit recognition to student groups that will allow any and all students to join and run for office -- though deemed constitutional, really help further the laudable goal espoused by Justice Anthony Kennedy of "enabling [students] to explore new points of view."

In his concurrence Justice Kennedy observes that "vibrant dialogue is not possible if students wall themselves off from opposing points of view." But one might ask how a vibrant dialogue is possible if opposing points of view are not present. Here, Hastings argued that CLS built the wall by excluding members who would not sign its statement of faith. Did Hastings itself, however, not build a wall by rejecting CLS as a student organization? CLS had a version of an all-comers policy, allowing attendance and participation by non-members, requiring the statement of faith only for members and leaders. Would not vibrant dialogue have occurred more readily on campus during club meetings, between members with one point of view and non-members with different points of view, than by rejecting CLS? Further, this analysis ignores the reality that vibrant dialogue occurs within groups of like-minded people – the vigorous debates within political parties clearly demonstrate this. And at a macro level, had CLS remained a student organization, perhaps another Christian group with different beliefs would have formed, creating vibrant dialogue between these two groups.

It is easy to mischaracterize CLS’s membership policy and to oversimplify it as outright discrimination, but a more nuanced approach might be more useful to the academy as it moves forward in applying this case. In Corp. of the Presiding Bishop v. Amos, a central case to the bounds of religious association, the then-leader of the liberal wing of the Court, Justice William J. Brennan, explained that a religious community defines itself by "determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is ... a means by which a religious community defines itself." And this Court itself reaffirmed the constitutionality of CLS’s expressive activity, "[i]nsisting that an organization embrace unwelcome members we have therefore concluded, 'directly and immediately affects associational rights.' " Preventing discrimination on campuses is a worthy goal, but reflexively applying the hatchet of an all-comers policy may actually undermine equally worthy goals: free speech, freedom of association, and an open marketplace of ideas. Might public colleges and universities instead formulate more nuanced policies that take care to ask whether a group’s belief-based membership requirements are "in furtherance of [the] organization’s religious mission," instead of simply rejecting these groups outright?

A key tenet of almost all religions is that they hold beliefs distinct from other religions and the non-religious -- communal beliefs are essential to the religious. Religion has often been challenged to define these beliefs in the face of cultural shifts, but it is the prerogative of those within the religion to determine those boundaries. And as mystifying or even offensive as some of those ideas are to those outside (or even inside) that religion, a key principle of our American ideals is that those ideas be challenged not rejected.

Within the CCCU itself this case sparked debate – debate which we welcomed as a sign of a healthy and robust organization. Such debate is part of the fabric of academe. If in an effort to limit liability more public and colleges and universities adopt these all-comers policies, part of that fabric could be undone. Though they claim to promote diversity, they actually promote sameness. How can a robust marketplace of diverse ideas exist when no group is allowed to unite around a core set of unique beliefs that give them their identity?

Academia has long stood for a free and open expression of ideas, undergirded by the expectation that the best ones will ultimately rise to the top. Rather than merely “tolerat[ing]” unpopular viewpoints, as Justice Stevens suggests, public colleges and universities should engage them. As Thomas Jefferson said, referencing the University of Virginia, “This institution will be based upon the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it."

Shapri D. LoMaglio
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Shapri D. LoMaglio is government relations and executive programs director of the Council for Christian Colleges and Universities.

Blasphemy of a Different Kind

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After recording of private conversation reaches upper echelons of Adventist church, 3 La Sierra U. leaders and a controversial faculty member are forced to quit.


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