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FIRE’s GUIDE TO

RELIGIOUS LIBERTY ON CAMPUS

FIRE’s GUIDES TO STUDENT RIGHTS ON CAMPUS

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FIRE’s Guide to Religious Liberty on Campus

FIRE’s Guide to Student Fees, Funding, and Legal Equalityon Campus

FIRE’s Guide to Due Process and Fair Procedure on Campus

FIRE’s Guide to Free Speech on Campus

FIRE’s Guide to First-Year Orientation and to Thought Reform on Campus

FIRE’s Guide to the Rights of Faculty

FIREAlan Charles Kors Harvey A. Silverglate

Codirector Codirector

Thor L. HalvorssenExecutive Director

BOARD OF EDITORS

Vivian Berger Edwin Meese III

T. Kenneth Cribb, Jr. Roger Pilon

Alan Dershowitz Jamin Raskin

Paul McMasters Nadine Strossen

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION

Philadelphia

FIRE’s GUIDE TO

RELIGIOUSLIBERTY

ON CAMPUS

David A. French

FIRE’s Know Your Rights Program and FIRE’s Guides to Student Rights onCampus are made possible by grants from the John Templeton Foundation,The Achelis Foundation, The Joseph Harrison Jackson Foundation, andEarhart Foundation. The Foundation for Individual Rights in Educationgratefully acknowledges their support.

Copyright © 2002 by the Foundation for Individual Rights in Education

All rights reserved. No part of this publication may be reproduced or trans-mitted in any form or by any means, electronic or mechanical, includingphotocopy, or any information storage and retrieval system now known or tobe invented, without permission in writing from the publisher, except by areviewer who wishes to quote brief passages in connection with a reviewwritten for inclusion in a magazine, newspaper, or broadcast.

FIRE invites and welcomes requests for reproduction and retransmission ofthis publication. Contact: [email protected]

ISBN 0-9724712-0-0Library of Congress Cataloging-in-Publication data is available uponrequest.

Published in the United States by:Foundation for Individual Rights in Education210 West Washington Square, Suite 303Philadelphia, PA 19106

Cover art printed by permission of the Norman Rockwell Family Agency

Copyright © 1943 the Norman Rockwell Family Entities

Cover and interior design by Eliz. Anne O’Donnell

Printed in the United States of America

PREFACE ix

INTRODUCTION 1

RELIGIOUS LIBERTY: A BASIC PRIMER 5The Right To Religious Liberty 5

What Does It Mean, Legally, To Be “Religious”? 16

Public Versus Private: The Limits of ConstitutionalProtection 21

RELIGIOUS LIBERTY IN THE UNIVERSITY 29Religious Liberty in the Public University 29

Summary of Religious Rights on Public Campuses 42

Religious Liberty in the Private University 42

Individual State Laws Affecting Private Institutions 45

The Role of University Catalogues, Handbooks, andDisciplinary Rules 51

CONTENTS

vii

The Role of University Governance and Funding 55

Summary of Religious Rights on Private Campuses 58

IDENTIFYING THREATS TO RELIGIOUS

LIBERTY 61

The Tactics of Oppression 61

The Use of Anti-discrimination Policies 62

The Use of Speech Codes 69

The Use of Harassment Codes 71

CONCLUSION: FIGHTING BACK 79

viii

Students should know their rights and liberties, and theyneed to be better informed and better equipped abouthow to assert and defend these precious things. The pro-tectors of students’ rights and liberties—those faculty,administrators, parents, alumni, friends, citizens, advis-ers, and attorneys who care about such vital matters—should understand the threats to freedom and legalequality on our campuses, the moral and legal means ofcombating those threats, and the acquired experience ofrecent years. To that end, the Foundation for IndividualRights in Education (FIRE) offers this Guide to ReligiousLiberty on Campus, part of a series of such guidesdesigned to restore individual rights and the values of afree society to our nation’s colleges and universities.These guides also should remind those who write, revise,and enforce campus policies of the legal and moral con-

PREFACE

ix

straints that restrict their authority. The sooner that col-leges and universities understand their legal and moralobligations to a free and decent society, the less needthere will be for guides such as these.

x


Consider Tufts University, Grinnell College, WilliamsCollege, Ball State University, Whitman College,Middlebury College, Randolph-Macon Women’s Col-lege, the State University of New York at Oswego,Wichita State University, Castleton State College, andPurdue University. This roll call of colleges and univer-sities is merely a partial list of schools that have soughtto either ban outright or heavily regulate the activities ofreligious students or religious student groups. Theseinstitutions have charged students and student groupswith, among other things, violating school policies onthe inclusion of gays and lesbians, violating school regu-lations of speech, and, ironically, “discriminating” on thebasis of religion. In the modern university, it is now con-sidered improper for religious groups to use religious

INTRODUCTION

1

principles to make religious decisions about their reli-gious missions.

Many students accustomed to being in an active reli-gious majority in their high schools and communitieswill find an almost complete reversal of their circum-stances when they enter the world of American highereducation. Just as religious majorities should respect—morally and legally—the rights of unbelievers or dis-senters back in their home communities, so should col-leges and universities respect the rights of religiousstudents on America’s campuses. The tragedy of poweris that we usually see the abuses of others, but we toorarely see our own.

In many ways, religious liberty is now center stage inthe battle for freedom on campus. For too many admin-istrators, religious students are particularly convenienttargets. After all, they think and behave in ways thatmany other students don’t understand; they tend to bevery small minorities on most campuses; and—by reli-gious conviction—they often resist even the most heavy-handed repression. For all the talk about diversity andtolerance, too few students and faculty care when peopleof faith are given fewer rights than other groups, andsuch believers enjoy scant support when they engage inreligious practices deemed “regressive” by their more“progressive” peers. In the eyes of the modern academiccommunity, the fewer “fanatics”—of the “wrong” kind—the better.


2

All friends of liberty must stand against this kind ofoppression, and doubly so when it is selective. Selectiverepression is particularly dangerous, of course, becausewhen repression is applied across the board and equallyto all groups, everyone recognizes and begins to workagainst it. When repression is selective, too many juststand by. The free marketplace of ideas—where individ-uals and groups may peacefully and without coercion fol-low their own consciences—nurtures a true civil societycapable of peaceful change.

Universities, as we shall see in the pages that follow,have a moral—and often legal—obligation to their stu-dents’ freedom of conscience and freedom of thought.Religious liberty—including the freedom to disbelieve—is a fundamental freedom. Universities are places whereideas should be exchanged, discussed, analyzed, anddebated. They should not be centers of a one true, polit-ically acceptable agenda, let alone of such an agendaenforced by secret tribunals. Universities that promiseacademic freedom and pluralism may not in good con-science banish this or that orthodoxy or heterodoxy fromtheir public arenas.

This guide is a major step in the battle for religiousfreedom and the rights of conscience on campus. Itspurpose is to educate students, faculty, administrators,and the public on the origins and nature of religious lib-erty in our society and, more particularly, on our cam-puses. The first section of this guide defines the scope of

Introduction

3

religious liberty generally. The second section explainsreligious liberty and the rights of conscience in the pub-lic and private university. The final section outlines themost common threats to basic religious liberty and pro-vides basic guidance for those who seek to respond tosuch threats.


4

5

The Right To Religious Liberty

America is a nation that, from its founding, has pro-claimed the rights of religious liberty and religious diver-sity. In the eighteenth century, after hundreds of years ofreligious wars, persecutions, and hatreds in the west, thedeepest minds of our civilization, religious and secular,asserted the need for religious liberty and its conse-quence, religious pluralism. For James Madison and somany of the American Founders, religious liberty was aninalienable right.

Before it even addresses freedom of speech and of thepress, the First Amendment of the United StatesConstitution recognizes freedom of religion. It declares,“Congress shall make no law . . . respecting an establish-ment of religion or prohibiting the free exercise there-of.” This simple phrase fulfills two vital purposes, as the

RELIGIOUS LIBERTY: A BASIC PRIMER

U.S. Supreme Court explained in its celebrated decisionin Cantwell v. Connecticut (1940). First, the “Establish-ment Clause” of the First Amendment “forestallscompulsion by law of the acceptance of any creed or the

practice of any form of wor-ship.” In other words, free-dom of conscience and thefreedom to choose and tobelong to a religion or reli-gious organization, or tonone at all, cannot be re-stricted by law. The gov-ernment may not establish a

religious orthodoxy, nor advance a specific religion, norpromote religion in general. This principle—that thegovernment must be neutral on the subject of religion—has been confirmed many times by the Supreme Court,most recently in the case of Zelman v. Simmons-Harris(2002). In its decision, the Court affirmed the constitu-tionality of school voucher programs in which the stategives funds for tuition assistance to individual citizenswho then may choose to spend it at either secular or reli-gious schools. The Court held that such programs areconstitutional because they have neither the “purpose”nor the “effect” of “advancing or inhibiting religion.”The program, said the Court, “is neutral in all respectstoward religion.” Second, the “Free Exercise Clause”protects the freedom of religious citizens to practice a


6

The Establishment Clause of

the First Amendment

prevents the state from

forcing any form of religion

or religious creed on the

individual.

chosen form of religion.The religion clauses of theFirst Amendment assureliberty not only to the citi-zen’s religious sensibilitiesand practice, but also tothe citizen’s moral, ethicaland conscientious preceptswhen these function for thenonbeliever in the same ways that religion functions forthe believer. “Thus,” the Supreme Court made clear inCantwell, “the Amendment embraces two concepts—freedom to believe and freedom to act.” In short, themeaning of the religion clauses was stated clearly by theSupreme Court in Zelman: The state may not “advance”(Establishment Clause) nor “inhibit” (Free ExerciseClause) religion.

The “freedom to act,” the freedom protected by theFree Exercise Clause of the First Amendment, is notunlimited, however. The government—and that includespublic universities, because they are governmental enti-ties whose powers are kept in check by the Bill ofRights—may restrict religious liberty under certain cir-cumstances.

The precise extent of the government’s ability to reg-ulate religious practice is the subject of much misunder-standing. Recent changes in the law, particularly in thecivil rights area, have led many university administrators

Religious Liberty: A Basic Primer

7

The Free Exercise Clause

of the First Amendment

protects individuals and

groups from government

interference in the practice

of their religion.

8


(and their legal advisers) to believe that they have vastauthority—even an obligation—to regulate the religiouspractices of students, faculty members, and religiousorganizations. This view, however, is profoundly mistak-en. In fact, the recent legal trend has been precisely theopposite: toward an expansion of the religious liberty ofindividuals and organizations, of believers and unbeliev-ers alike.

There is a widespread notion that religious belief andpractice must be curtailed to protect the civil rights ofothers. Laws and regulations indeed extend what arecommonly called “rights” to individuals. The Bill ofRights (the first ten amendments to the U.S. Constitu-tion), however, is the foundation and heart of our liber-ties. The First Amendment explicitly states a set of civilliberties protected by the Constitution, in particular, thefreedoms of speech, press, and religion. These libertiesset the boundaries to claims of newer and newer “rights.”Individuals claim “rights” of equal access to group mem-bership and leadership or “rights” of never being“offended” or “excluded.” In short, some individualsbelieve that “civil rights” might somehow trump the“civil liberties” of those who exercise such constitution-ally protected liberties as freedom of speech, freedom ofthe press, freedom of religion, and what follows fromthem, freedom of association.

For example, the Boy Scouts of America were recent-ly involved in litigation over a state’s attempt to compel

9

them to admit gay scouts and scout leaders. The U.S.Supreme Court, however, ruled that the Scouts have aright to determine the nature of their own voluntaryassociation, social message, and organizational mission.The issue, of course, is not whether governmentalauthorities, a majority of citizens, FIRE, or strongminorities agree or disagree with the Scouts, butwhether private groups like the Scouts, including gaypolitical or social groups, may determine their own mis-sion and membership.

Most recent confusion about religious liberty has aris-en from the issue of an appropriate legal “test” for gov-ernment action. Obviously, the government may restrictreligious practices that include murder, theft, and otherfelonies, but where do we draw the line? What uniformstandard will be used to judge the legality of governmentlimitations on religious practice? This standard haschanged twice in the last forty years.

In 1963, the Supreme Court decided the case ofSherbert v. Verner. In Sherbert, as it is known, a womanchallenged a state’s decision to deny her request forunemployment benefits. The state’s decision was basedon her refusal to work on Saturday, the Sabbath Day ofher faith. The Supreme Court held that the state violat-ed the Free Exercise Clause of the First Amendmentwhen it required, in exchange for a government benefit(unemployment compensation), a change in religiouspractice (nonobservance of Sabbath rest).


This decision, by itself, was unremarkable. What setSherbert apart, however, was the legal standard that itintroduced. Justice William Brennan, writing for theCourt, stated that if a government action imposes a sig-nificant burden on religious practice, that action couldbe justified only if

1) it advances a “compelling state interest”; and 2) “no alternative forms of regulation” would suffice.

Unless both requirements of that test could be satisfied,the government’s action would be unconstitutional andinvalid.

This standard is known, among lawyers and in courts,as “strict scrutiny.” It is not sufficient for the state to wishto regulate religion to achieve this or that “good.”Rather, to overcome the powerful presumption in favorof religious liberty, the state must have the mosturgent—that is, “compelling”—need to act, and it mustshow that this need could not be satisfied by some othermore narrowly tailored and less intrusive regulation.Further, the regulation may not be simply a disguisedattempt to interfere with a religious practice.

The standard set by Sherbert—although the SupremeCourt occasionally, but rarely, departs from it—marked avery significant advance in “free exercise” jurisprudenceand provided vital protection for religious liberty. It wasvery difficult for the government to prove that “com-pelling” governmental interests justified specific regula-

10


11


tions restricting religious liberty. Courts became andremain justifiably reluctant to believe that a governmentis “compelled” to limit core individual freedoms.

In 1990, however, the standard underwent a changewhose scope and application is both controversial andwidely misunderstood. In Employment Division v. Smith,the Supreme Court decided the case of two individualspunished for the religious use of peyote, an illegal drug.Peyote is ingested for sacramental purposes during someceremonies of the Native American Church. TheSupreme Court upheld the State of Oregon’s decision todeny unemployment benefits to the individuals, and, inso doing, it changed more than two decades of prece-dent.

Again, the crucial issue is the standard that the Courtestablished in Smith, as this case is known. That newstandard was that the government was not required tosatisfy “strict scrutiny”—that is, to demonstrate boththat its regulations furthered a “compelling state inter-est” and that no alternative forms of regulation wouldserve the same purpose. Instead, the government neededonly to demonstrate that its restriction of religious prac-tice arose not from any attack on religion, but on the basis ofa valid law, generally applicable to all citizens—in legalese, a“valid and neutral law of general applicability.” In otherwords, the Free Exercise Clause, by itself, would notprotect individuals from state restrictions on religiouspractice (such as the use of an illegal drug) if the state was

not specifically targeting religion, but was simply enforc-ing a law equally applicable to all. (By such reasoning,some argued, the state could have banned sacramentalwine in Catholic and other masses during Prohibition.)

In the controversy that followed this decision, manygovernmental bodies, in a rush to regulate religiouspractice, chose to ignore the clear force with which manyaspects of the Supreme Court’s ruling preserved certainstrict standards. First and foremost, the Court had statedemphatically that state action toward religious organiza-tions must be neutral. In other words, the government—although freed from the “compelling state interest”standard—did not have the right to enact laws designedprimarily (or even partially) to suppress the practice ofreligion. For example, in Church of the Lukumi BabaluAye, Inc. v. Hialeah (1993), the Supreme Court over-

turned the City of Hialeah’sattempt to ban ritual animalsacrifice, finding that thepurpose of the statute wasthe suppression of Santeriareligious worship (practicedby some Caribbean-Ameri-cans).

While Smith weakenedthe force of free exerciseclaims, religious individualsand groups could strength-

12


Religious individuals

and groups can enhance the

level of constitutional

protection by combining

their First Amendment free

exercise rights with other

constitutional rights—such

as freedom of speech and

freedom of association.

13

en those claims by “coupling” or “bundling” them withother constitutional rights. If religious individuals wereconfronted by a government policy that restricted theirreligious practice, they often argued rightly that the pol-icy violated not only free exercise rights, but also rights tofree speech and free association. If, indeed, state actionsaffect other constitutionalrights while regulatingreligious practice, then thestandard changes, and“strict scrutiny” again willoften apply to official ac-tions, thus reestablishingthe highest hurdle forgovernment activity toovercome. (“Freedom ofassociation” is not explicitlymentioned in the Con-stitution. However, theSupreme Court long hasheld that the right to free speech is virtually meaninglesswithout a corresponding right to form organizations,such as the NAACP, the Christian Coalition, the ACLU,and the Republican and Democratic Parties, for exam-ple, in order to advance particular viewpoints and toassociate with others of like mind. In short, “freedom ofassociation”—without which freedom of speech wouldbe profoundly weakened—is implied by the Constitu-


The First Amendment’s

Free Speech Clause limits the

ability of the government to

interfere with your right to

speak your mind. Courts

have ruled that religious

speech and worship are

forms of expression

protected by the Free

Speech Clause.

tion’s Bill of Rights. Indeed,there exists an explicit Con-stitutional right to freeassembly. The First Amend-ment protects “the right ofthe people peacefully toassemble,” a self-evidentprotection for private or-ganizations.)

Those standards—gov-ernment neutrality andstrict scrutiny when other

constitutional rights are involved—critically limit thestate’s regulation of religious practice. Administrators,faculties, and student judiciaries at public colleges anduniversities—eager to impose their secular orthodoxieson campus—often view the Smith decision as grantingthem a free hand to regulate religious practice on cam-pus. Nothing could be further from the truth. Campuspolicies that inhibit religious practices almost always inhibitthe rights of free speech, association, and assembly.

Furthermore, and this has affected more recent Courtrulings, the Smith decision produced a very intense andcritical response from the public, from Congress, andfrom both mainstream and minority religious groups.Indeed, Congress passed and President Bill Clintonsigned legislation to correct what they saw as the seriousills of Smith, but the Supreme Court judged such

14


Freedom of association

protects your right to form

organizations, to advance

particular viewpoints, and to

associate with others of like

mind. Courts have ruled that

free association rights apply

to religious individuals and

groups.

15


attempts to be unconstitutional on grounds of the sepa-ration of powers. (The Court found that Congress didnot have the power to expand or to contract constitu-tional rights.) Nonetheless, the Court began to under-stand that it had entered dangerous territory in limitingthe religious rights not only of Native American Churchmembers, but also of all Americans. In subsequent casesthe Court has pulled back dramatically, narrowing theapplication of the Smith doctrine and keeping much of“strict scrutiny” intact. For example, in the Hialeah casementioned above, Justice Kennedy’s opinion reads as avirtual “how-to” guide for lawyers who wish to circum-vent Smith and apply strictscrutiny to governmentdecisions. Hialeah restoresstrict scrutiny to many situ-ations: when a law specifi-cally mentions religiouspractice, when there arehints of antireligious mo-tives by the government, orwhen the law affects reli-gious practice alone.

In the wake of theHialeah case, it is nowunclear whether the Smith test retains much viability. Ifthe government takes an action or enacts a law thatimpinges upon religious rights alone, then there is a

Even in light of recent limits

on the Free Exercise Clause,

courts will still give strict

scrutiny to government

regulations that mention

religious practice, that are

motivated by antireligious bias

or have an impact upon

religious practice alone.

good chance that Hialeah would offer the religious indi-vidual or group the protection of strict scrutiny. If thegovernment action implicates more than just religiousrights (such as rights to free speech or free association),then religious individuals or groups will be able to “bun-dle” their religious rights with these other rights andagain be protected by strict scrutiny.

For many first-rate legal minds, then, the test estab-lished by Sherbert, that of “compelling state interest,” isstill unsettled in its scope, and may still apply to a broadrange of cases. What is wholly clear, however, is that forthe state legally to regulate religious practice, the restric-tion in question must, at the very least, be neutral andmust not inhibit the exercise of other, related constitu-tional freedoms. If a public university discriminates amongviewpoints by limiting specific religious practices or by denyingto one religious group or individual a benefit that it offers toother religious groups or to secular organizations, then itsactions will almost certainly be deemed unlawful.

What Does It Mean, Legally, To Be “Religious”?

The right to religious liberty is not limited to membersof mainstream churches, or to fundamentalistProtestants, or to observant Catholics, or to OrthodoxJews. Indeed, the rights of religious liberty are not theexclusive realm of those who would define themselves asparticularly “religious.” It is a common misperception

16


17

that only those individuals who attend church, mosque,or synagogue regularly either care about or are affectedby issues of religious liberty.

The right to the free exercise of “religion” is not lim-ited by conventional or orthodox understandings of thenature of “religion” or “religious practice.” Indeed, theFree Exercise Clause protects both the beliefs and prac-tices of those whose religion may not be based uponbelief in God (nontheists) and those whose religion isfounded upon belief in a Supreme Being (theists). TheSupreme Court has madeclear that freedom of reli-gion includes a wide varietyof deeply held nontheisticbeliefs that play a role insomeone’s life similar tothat played by the belief inGod in the life of a moretraditionally religious per-son. The religion clauses ofthe First Amendment arebest understood as guard-ians of everyone’s freedom of conscience—and of every-one’s particular ideas of ultimate meaning and ultimatespiritual authority, including the freedom of those whodisbelieve.

Although the Supreme Court has never preciselydefined “religion,” it has given religious liberty stun-



protects both the beliefs and

practices of those whose

religion may not be based

upon a belief in God

(nontheists) and those whose

religion is founded upon

a belief in a Supreme

Being (theists).

ningly broad scope. First, asnoted, one does not have todefine oneself specifically as“religious” to receive con-stitutional religious protec-tions. In United States v.Seeger (1965), the Court

held that a “sincere and meaningful belief which occu-pies in the life of its possessor a place parallel to thatfilled by God” could be classified as religious.

In the groundbreaking case of Welsh v. United States(1970), the Supreme Court built on its decision in Seeger.It reviewed the appeal of an individual who had soughtconscientious objector status under a statute thatexempted from military service individuals who, by rea-son of “religious training and belief,” were conscien-tiously opposed to war in any form. Mr. Welsh, howev-er, had stated that he could not affirm or deny belief in a“Supreme Being,” and he had struck the words “my reli-gious training” from the form that requested the exemp-tion. He was convicted for refusing to accept inductioninto the armed services. Reversing that conviction, theSupreme Court found that Welsh’s beliefs—includinghis belief that taking any life was morally wrong—weremore than “a merely personal honor code” and wereheld with “the strength of more traditional religiousconvictions.” Consequently, he was entitled to receivethe “religious” exemption to military service.

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protects even those

individuals who do not

define themselves

specifically as “religious.”

19


Second, if individuals do define themselves as reli-gious, they do not have to belong to a theistic religion toreceive the protection of the religion clauses of theConstitution. The Supreme Court specifically rejectedany limitation of “religion” to theistic religions in Torcasov. Watkins (1961), a case in-validating a Maryland con-stitutional provision thatrequired appointees to pub-lic office to declare a beliefin the existence of God. Inextending protection to aSecular Humanist challeng-ing the Maryland law, Jus-tice Hugo Black, writing forthe Court, specifically listed a number of prominent,nontheistic religions, citing “Buddhism, Taoism, EthicalCulture, Secular Humanism, and others.”

Third, religious protections are not limited to mem-bers of an “organized” religious group. In Frazee v.Illinois Department of Employment Security (1989), theSupreme Court allowed a Christian who was not a mem-ber of an established religion or sect to receive unem-ployment benefits despite his refusal to work onSundays. Justice White, writing for a unanimous Court,explained that the protection of the Free Exercise Clausewas not limited to those “responding to the commands ofa particular religious organization.”

You do not have to belong

to a theistic religion to

receive the protection of the

religion clauses of the First

Amendment; nor do you

have to belong to an

“organized” religious group.

Fourth, individuals can assert religious liberty claimseven if their views differ from those of their church orfrom other members of their religion. In Thomas v.Review Board of Indiana Employment Security Division(1981), the Supreme Court reversed Indiana’s decision todeny unemployment benefits to a Jehovah’s Witness who

quit his job because his reli-gious beliefs forbade partic-ipation in the production ofarmaments. Indiana courtshad upheld the decision todeny benefits, finding thatThomas’s views regardingthe production of tank tur-

rets differed from those of other Jehovah’s Witnesses andwere not those of “his religion.” The Supreme Courtemphatically disagreed with such a requirement of con-formity, holding that “it is not within the judicial func-tion and judicial competence to inquire whether thepetitioner or his fellow worker more correctly perceivedthe commands of their common faith. Courts are notarbiters of scriptural interpretation.”

These decisions may be seen as the Supreme Court’srecognition that not only are minority religions entitledto constitutional protection (a doctrine that has longbeen established), but that quite unconventional reli-gions, and even what might be called “substitutes” forreligion, are entitled to the same protection. The doc-

20


You can assert religious

liberty claims even if your

views differ from those of

your church or from other

members of your religion.

21


trine of protected religious diversity has taken profoundhold in constitutional jurisprudence.

Religious liberty, thus, exists for all individuals—believers and unbelievers—who hold sincere and mean-ingful beliefs about ultimate issues in life. Such beliefsare of transcendent importance to many individuals.State actions that strike at those beliefs, that offend one’sconscience, may very well involve and implicate the FirstAmendment. Citizens should not limit their liberty—norshrink back in the face of repression—simply becausetheir consciences place them outside the mainstream ofAmerican life, or because their “church” is small, orbecause no one else shares their views. Liberties exist fora minority as much they do for the majority. That is thenature of a free and decent society.

Public Versus Private: The Limits ofConstitutional Protection

To this point, this discussion of religious liberty hasfocused on protections offered by the First Amendmentand constitutional law, which restrict the behavior of thestate, including public colleges and universities.However, it is as important to understand what theConstitution does not protect as it is to understand whatit does protect. The Constitution of the United Statesprotects individual freedoms from government interfer-ence. It does not, as a rule, protect individual freedoms

from interference by privateorganizations, such as cor-porations or private univer-sities. For example, while astate could never create aChristian academy or man-date attendance at Bibleclasses and chapel services,voluntary private organiza-tions have a right to do pre-cisely such things. Thou-

sands of church-based schools and colleges exist inAmerica, and these private, religious organizations arefree to mandate religious practice, to forbid what theyjudge to be immoral behavior, and to restrict speech.Private organizations have freedoms denied to govern-ment—the freedom to impinge on constitutional liber-ties that are protected from governmental interference.Indeed, the Constitution guarantees the “free exercise”of those liberties, because we could not have a free andpluralistic society if private organizations did not enjoythis freedom of belief and practice.

The case of private universities serves well to illustratethis distinction. Despite their theoretical freedom torestrict speech, private, secular universities once pridedthemselves on being special havens for free expression—religious, political, and cultural. Indeed, many ofAmerica’s great private educational institutions have tra-

22


The Constitution of the

United States protects

individual freedoms from

government interference. It

does not, as a rule, protect

individual freedoms from

interference by private

organizations.

23


ditionally chosen to allow greater freedom than publicuniversities, even permitting forms of expression thatpublic universities could legally prohibit. Until recently,few places allowed more discussion, more diverse stu-dent groups, and more cutting-edge expression thanAmerica’s elite private universities.

Unfortunately, that now has changed. Even America’sbest private, secular, and liberal arts colleges and univer-sities are becoming centers of censorship and repressionon behalf of campus orthodoxies. Speech codes, sweep-ing “anti-harassment” regulations, and broad and vagueanti-discrimination policies increasingly have stifled dis-course. More and more,vaunted Ivy League andsimilar universities are be-coming places where a vastnumber of religious tradi-tions and ideas are simplynot welcome. Many secular,private schools appear ascommitted to their anti-religious orthodoxy as BobJones University is to itsfundamentalist Christianity and anti-secularism.

Although these private institutions are not bound bythe First Amendment, there still are limits to what harmthey may do to those who seek to exercise their religiousliberty. Contrary to the wishes of many administrators

Freed from Constitutional

restraint, some of America’s

best private, secular, and

liberal arts colleges and

universities are becoming

centers of censorship and

repression on behalf of

campus orthodoxies.

24


and faculty members, pri-vate organizations do notpossess unlimited powerover the lives of members ofthose communities. Beyondthe Constitution, we stilllive in a society of bothcommon and statutory law.Here, a complex web offederal and state statutesand state common law pro-vides considerable protec-

tions for the religious rights of individuals and groups. For example, Title VII of the Civil Rights Act of 1964

is a federal statute that prohibits private employers fromdiscriminating against anyemployee “because of suchindividual’s race, color, reli-gion, sex, or national ori-gin.” (“Titles” are parts orsections of an Act.) Whilesomeone may be fired froma job for loudly criticizing asupervisor, a person may

not be fired or otherwise discriminated against simplyfor being a man, or a black, or a Methodist. This provi-sion is the legal source of workplace sexual harassmentlaws and regulations.

Private universities do not

have unlimited power over

their students. They still

must comply with a complex

web of federal and state laws

that provides considerable

protections for the religious

rights of individuals and

groups.

Statutes are laws written

by legislatures—both state

and federal—that often limit

a university’s ability to act

against the interests of

its students.

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Another sort of protection arises from conditions thatCongress may place on private organizations that chooseto accept and use federal funding for various programs.Title IX, for example, famous for its impact on collegiateathletic programs, prohibits sexual discrimination at anyschool (private or public) that receives federal funds:“No person in the United States shall, on the basis of sex,be excluded from participation in, be denied the benefitsof, or be subjected to discrimination under any educationprogram or activity receiving Federal financial assis-tance.” (Here, however, Congress recognized the neces-sity of not interfering with the free exercise of religion byexempting from the act “educational institutions of reli-gious organizations with contrary religious tenets.”)Title VI prohibits discrimination on the basis of race andethnicity: “No person in the United States shall, on theground of race, color, or national origin, be excludedfrom participation in, be denied the benefits of, or besubjected to discrimination under any program or activ-ity receiving Federal financial assistance.” Since virtuallyevery university in America receives some amount offederal funds, they are almost all bound by these restric-tions. Further, individual states have passed their ownlaws, some of which simply mirror federal laws and con-stitutional requirements, and some of which create theirown unique requirements.

For students at private colleges and universities, how-ever, the most relevant law is state common law. The

phrase “common law” is an ancient term for legal rulesthat are created, adapted, and applied not by legislaturesor city councils but by juries and judges over a long peri-od of time. Most arose from the rules that worked inkeeping the peace and fairness of civil society. The com-mon law typically encompasses legal rules that governcontracts and torts (that is, things that cause harm), or,more technically, “civil wrongs” (such as product liabili-ty, libel, medical malpractice, or car accidents involving

negligence or recklessness).Often, the origins of a spe-cific element of commonlaw—such as the impositionof monetary liability fornegligent acts that harmothers—stretch back hun-dreds of years to the fif-teenth and sixteenth cen-turies. Without commonlaw, there would have beenno rules but the right of thestrongest. Individual states

have each incorporated varying degrees of common lawinto their legal systems. In general, however, commonlaw prevents a private college or university from com-mitting fraud or breach of contract in its dealings withindividuals, or from harming them wrongfully.

Given this complex system, which varies state by state,

26


State common law rules can

provide considerable

protection to private school

students. In general, the

common law prevents a

private college or university

from committing fraud or

breach of contract in its

dealings with individuals

and groups.

27


it is difficult to talk about “student rights” as if they werethe same for everyone, everywhere. Students at BrownUniversity in Rhode Island have common law rights sub-stantially different from students at Harvard Universityin Massachusetts or at Vanderbilt University in Ten-nessee. Different states have different legal doctrines.

To understand your rights as a student, therefore, youmust ask the following questions: 1) Is my college or uni-versity a public institution? If so, its actions are limitedby the First Amendment and by federal and state statutesand state common law. If it is a private institution, it stillwill be limited by federal and state statutes and statecommon law. Thus, you will need to know 2) what aremy statutory rights? and 3) what are my state commonlaw rights? To help answer the third question, concern-ing your common law rights, it will be useful to knowwhat the school itself says in its student handbooks, cat-alogues, and disciplinary codes. In these, you will find itspromises to its students, many of which may be legallybinding. In the pages that follow, this guide will explainin more detail the significance of these questions and willprovide some universal, generalized guidance that willhelp you to identify some of the primary threats to reli-gious liberty on the modern campus and to plan respons-es to potential persecution, oppression, or unequal treat-ment.

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RELIGIOUS LIBERTY IN THE UNIVERSITY

This section is subdivided into two distinct parts: 1) adiscussion of religious liberty in the public university,where the Constitution applies and provides compre-hensive protections; and 2) a discussion of religious lib-erty in the private university, where state statutes and therules of common law govern.

Religious Liberty in the Public University

For the public university student concerned with reli-gious liberty, the Free Exercise Clause of theConstitution is much more critical than theEstablishment Clause. (It is very unlikely that a publicuniversity will attempt to establish Lutheranism as anofficial religion, for example. It is more likely that it willseek to restrict the free practice of a religion.) As

explained earlier, the Free Exercise Clause protects reli-gious individuals and groups from specifically targeted,anti-religious state action. In other words, a public uni-versity may not institute any policy designed primarily(or even partially) to suppress the practice of religion.

That means, among many other things, that no publicuniversity may restrict freedom of religion indirectly, byadopting some official campus secular political ortho-doxy—“multiculturalism” or “diversity,” for example—which it then uses to restrict religious beliefs and prac-tices that supposedly betray the “official” campusideology. Directly restricting religion and insisting thatall students adhere to some official campus orthodoxyare two sides of the same coin and are unlawful for thesame reason: they violate the First Amendment.

Recall that the Constitution permits religious groupsto “couple” their free exercise rights with other constitu-tional rights. This means that if religious individuals orgroups are confronted with a university policy that dis-criminates against their religious message, then they maynot only claim a violation of their free exercise rights butalso of their rights to free speech and to free association.In such a circumstance, it becomes much more difficultfor the university’s policies to prevail.

Because of the mutually strengthening and sustainingrelationship of free speech, free association, and the freeexercise of religion, public universities are severely lim-ited in their ability to regulate campus religious practice.

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31

Religious Liberty in the University

The key word that governs a public university’s obliga-tions is neutrality. If its behavior offers a benefit to indi-viduals or organizations with a particular viewpoint orreligion, then it must offer that same benefit or access toother individuals or organizations with different view-points or religions. Because they are agents of the gov-ernment, public colleges and universities may not engagein viewpoint discrimination.

You should know that there is a long-standing contro-versy between two different views of the proper applica-tion of the Establishment Clause. As discussed earlier,the Supreme Court has made it clear—as recently as inits “school vouchers” case (Zelman v. Simmons-Harris) in2002—that the government must remain “neutral in allrespects toward religion” and may not enact laws “thathave the ‘purpose’ or ‘effect’ of advancing or inhibitingreligion.” The controversy is over the meaning andscope of state “neutrality,” and, in particular, over cases

Public universities are severely limited in their ability to regu-

late campus religious practice. The key word that governs a

public university’s obligations is neutrality. If its behavior offers

a benefit to individuals or organizations with a particular

viewpoint or religion, then it must offer that same benefit or

access to other individuals or organizations with different

viewpoints or religions.

in which government seems to “advance” religion bysuch things as putting up Christmas trees in public placesor paying chaplains, with public funds, to open legisla-tive sessions and other public events. Some individualssee such acts as violating the Establishment Clause.Other individuals view such cases as either trivial or, attheir core, secular and not at all in conflict with theEstablishment Clause.

This Guide does not seek to resolve the controversy asto precisely where the line should be drawn to definestate neutrality. Rather, it seeks to give students practicaladvice about how they can protect their own right tobelieve and practice their own chosen religions—or noneat all—without official interference or penalty—exceptin the face of compelling social and governmental inter-ests that justify restrictions on practice, though never onbelief. For the state, given the doctrine of “neutrality,”neither religion nor irreligion enjoys any advantage overthe other; they are of equal status in their rights and free-doms. Religious students often look, above all, to theFree Exercise Clause (“don’t stop me from practicing myreligion”). Nonreligious students often look, above all,to the Establishment Clause (“don’t try to influence meto believe in or practice a religion or any belief system”).Both believers and nonbelievers often agree, however,that separation of church and state is vital to civic and toreligious life, many believers concluding that such sepa-ration protects religion from the secularism inherent in

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government. The Supreme Court, at any rate, insists onthe concept of state neutrality in matters of religion. Fornonbelievers, this arms them to argue that public uni-versities may neither favor nor promote religion overirreligion or secularism. For religious students, this armsthem to argue that public universities may not interferewith their religious belief and practice, even if such prac-tice has the incidental effect of offending or excludingothers.

Several major Supreme Court cases illustrate the prin-ciple of viewpoint neutrality. The first, Widmar v.Vincent (1981), held that once a university opens its facil-ities to a broad spectrum of student groups, it may notthen deny religious organizations that same access. Thisprinciple was reaffirmed inLamb’s Chapel v. CenterMoriches Union Free School(1993), a case involving apublic high school that de-nied religious organizationsequal access to school facili-ties. The Supreme Court’sconclusion was unanimous:“[I]t discriminates on thebasis of viewpoint to permit school property to be usedfor the presentation of all views about family issues andchild-rearing except those dealing with the subject mat-ter from a religious standpoint.”

If a public university opens

its facilities to use by

political or cultural student

groups, then it must allow

religious individuals and

groups equal access to those

facilities.

Under the authority of Widmar and Lamb’s Chapel,public universities that open gymnasiums, classrooms,auditoriums, and dorm facilities for use by groups asdiverse as College Democrats, African-AmericanStudent Unions, anti-International Monetary Fundprotest groups, feminists, and literary societies may notclose those same facilities to religious organizations.Any university that attempts such discrimination is inclear violation of the law. Indeed, these other groupsmay rightly use the principles laid out in this guide inorder to attain equal rights on those rare campuses thatfavor religious groups and discriminate against secularpolitical groups. The nature and virtue of this is precise-ly that it protects everyone equally.

In fact, the principle of equal access is one of the mostfirmly established doctrines in constitutional law. Asrecently as the summer of 2001, the Supreme Courtruled that public schools must offer equal access to reli-gious groups not only in colleges and high schools, butalso in elementary schools. This case, called Good News Clubv. Milford Central School, firmly and definitively removesany doubt about religious students’ access to public facil-ities. Every religious student or group at every level ofschooling is entitled to the same access to school facili-ties as secular students or groups. If a school opens itsfacilities to political or cultural clubs, it cannot shutthose doors to religious students.

The principle of neutrality extends not only to the use

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35


of facilities, but also to the use of university funds. InRosenberger v. University of Virginia (1995), the Universityof Virginia authorized payments from a StudentActivities Fund for the printing costs of publications bycertain student groups. This payment program was uti-lized by a wide variety of student groups to print a greatdiversity of publications espousing political, social, andeven religious views. Although the university supporteda wide range of groups, including Jewish and Shintopublications, it refused to support the publication of aChristian magazine.

In response, the Supreme Court found that the uni-versity was guilty of unconstitutional viewpoint discrim-ination: “Having offered to pay the third-party contrac-tors on behalf of private speakers who convey their ownmessages, the University may not silence the expressionof selected viewpoints.”

In fact, viewpoint neutrality is an absolute preconditionto any public funding for student organizations. In thecase of University of Wisconsin v. Southworth (2000), theSupreme Court provided a perfect description of theneutrality requirement. In Southworth, a University ofWisconsin student challenged the University’s mandato-ry student activity fee, alleging that to force him to fundstudent groups whose political and ideological speech hefound offensive violated his First Amendment rights.Although the Supreme Court agreed that a mandatoryfee involved the student’s First Amendment rights, it

36


held that those rights were not being violated as long asthe university allocated the funds on a neutral basis. In Justice

Sandra Day O’Connor’swords: “Viewpoint neutrali-ty is the justification forrequiring the student to paythe fee in the first instanceand for ensuring the integ-rity of the program’s opera-tion once the funds havebeen collected.”

In sum, public universi-ties that offer benefits to

nonreligious “expressive organizations” on campus (an“expressive organization” is one that exists, at least inpart, for the purpose of expressing a particular view-point) may not deny the same benefit to other studentsor groups simply because their viewpoint happens to bereligious. This is a valuable application of the generalprinciple—one might dub it the “Golden Rule” of con-stitutional decision-making—that citizens are entitled toequality before the law. That principle is one of theessential foundations of our liberty. It is what the draftersof the Fourteenth Amendment meant when they wrotethat no state may “deny to any person within its jurisdic-tion the equal protection of the laws.”

Campus religious organizations do face one form oflegal jeopardy that, some have argued, makes the “neu-

Just as public universities

must offer religious groups

equal access to campus

facilities, they must also offer

equal access to university

funds. All university funds

must be allocated on a view-

point neutral basis.

37


trality principle” inapplicable. Most contemporary legalattacks on religion make use of laws or regulations thatwere not, in fact, specifically designed to work againstreligion. These legal weapons instead are, for the mostpart, “neutral laws of general applicability” that simplyare applied in ways that defeat religious practice. Theperfect example, by its relevance to student religiousgroups, would be a university policy that prohibitsdiscrimination on the basis of sexual orientation. A uni-versity would argue that its policy is simply a “neutral,general law” applicable to everyone: biology professorsmay not refuse to hire lesbian teaching assistants; thefootball team may not exclude gay linebackers; and cam-pus religious organizations may not bar gay members. Inother words, the rule was not designed to target a par-ticular religion, or religionin general, but was insteadcreated to protect all indi-viduals from any discrimi-nation based on sexual ori-entation.

The difference betweenthis kind of situation andthe situation faced by thereligious individuals inWidmar and Rosenberger isobvious. The plaintiffs inthose cases were attacking

Because college

anti-discrimination policies

apply to all members of the

campus community,

viewpoint discrimination

rules do not apply. Religious

students and groups must

rely on free association

rights to preserve their

religious liberties.

policies that were designed to benefit everyone exceptreligious organizations. The viewpoint discriminationwas clear. Most campus anti-discrimination policies aredesigned to apply to everyone, including religious organ-izations. In such a case, there appears to be no viewpointdiscrimination whatsoever.

Prior to the Supreme Court’s recent decisions inHurley v. Irish-American Gay, Lesbian and Bisexual Groupof Boston (1995) and in Boy Scouts of America v. Dale(2000), it was unclear whether an expressive or religiousorganization’s constitutional rights to freedom of associ-ation would “trump” the state’s generally applicable anti-discrimination policies. If not, then the consequences forreligious groups that exclude legally “protected” individ-uals for religious reasons could be disastrous. Sincerescriptural objections to certain behaviors could be sweptaside in the interest of “tolerance” and “diversity,” andreligious student groups could be required to conform tocontemporary campus policies or be forced to disband.

Boy Scouts addressed this issue quite directly. Itinvolved a gay former Eagle Scout’s attempt to challengethe Boy Scouts’ ban on gay scoutmasters. He argued thatthe anti-discrimination provisions of New Jersey’s publicaccommodation law compelled the Boy Scouts to altertheir policy. “Public accommodation laws” ban discrimi-nation in “public” places. The classic public accommo-dation laws, for example, ban discrimination on the basisof race and sex in restaurants, hotels, and stores.

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Historically, public accommodation laws were adoptedfor the beneficial purpose of making it possible for mem-bers of racial minorities, particularly black Americans, totravel from state to state and to be able to purchase serv-ices—hotels, restaurants, and the like—that were previ-ously available only to white citizens. Recently, however,public accommodation laws have been used to ban dis-crimination even in private clubs. New Jersey’s publicaccommodation law included a ban on discrimination onthe basis of sexual orientation. Expanding public accom-modation laws in order to restrict the First Amendmentrights of speech and religion is a relatively new phenom-enon that has become subject to considerable debate,criticism, and litigation.

In response to New Jersey’s use of public accommo-dation law to force the Boy Scouts to alter its policies,the U.S. Supreme Court reaffirmed its commitment tofreedom of association. It stated that “implicit in theright to engage in activities protected by the FirstAmendment is a corresponding right to associate withothers in pursuit of a wide variety of political, social, eco-nomic, educational, religious, and cultural ends [emphasisadded].” This right, the Court proclaimed, is “crucial inpreventing the majority from imposing its views ongroups that would rather express other, perhaps unpop-ular, ideas.” Consequently, the Court held that the“forced inclusion of an unwanted person [in this partic-ular case, an openly gay scout] infringes the group’s free-

40


dom of expressive association if the presence of that per-son affects in a significant way the group’s ability toadvocate public or private viewpoints.”

As a consequence of the decision in Boy Scouts v. Dale,a public university simply may not use its anti-discrimi-nation policies to dictate the leadership or membershipof religious organizations. If a public university allowsexpressive organizations to exist at all, then it must allowreligious organizations to exist, to select their own lead-ers, and to order their own affairs. Furthermore, if a pri-vate university claims that federal or state law compels itto coerce religious organizations to conform to suchanti-discrimination policies, it is demonstrably wrong. Inthe words of the U.S. Supreme Court, “While the law isfree to promote all sorts of conduct in place of harmfulbehavior, it is not free to interfere with speech for nobetter reason than promoting an approved message or

As a consequence of the decision in Boy Scouts v. Dale, a public

university simply may not use its anti-discrimination policies

to dictate the leadership or membership of religious

organizations. If a public university allows expressive

organizations to exist at all, then it must allow religious

organizations to exist, to select their own leaders, and to order

their own affairs.

41


discouraging a disfavored one, however enlightenedeither purpose may strike the government.”

The Boy Scouts decision reaffirmed the U.S. SupremeCourt’s thinking about freedom of association and free-dom of expression already expressed in Hurley, whichhad been decided five years earlier. In Hurley, theSupreme Court unanimously held that the private spon-sors of Boston’s annual St. Patrick’s Day parade had aFirst Amendment right to exclude from the paradegroups of marchers that insisted on parading with ban-ners identifying them as gay and lesbian Irish. Such anidentified group marching under its own banner woulddilute—indeed, would conflict with—the conservativesocial and religious message that the parade sponsorsmeant (and had a right) to send to the world. The gayIrish group’s attempt to brand the parade a “publicaccommodation” did not impress the Court, which ruledemphatically and without dissent that the parade was anexpressive event protected by the First Amendment.Similarly, while a religious student group clearly is notfree to do anything it wishes—we live, fortunately, underthe rule of law—it surely has the right to define the stan-dards and criteria of its leaders and membership, and itsurely has the right to determine the message that thegroup will disseminate to the campus and to the world.Here, freedom of speech, religion, and association allcombine very powerfully. Of course, this same principle

42


likewise ensures a gay student group’s right to define itsown message by its own lights and to exclude religiousfundamentalists hostile to its message from leadershippositions and even from membership.

SUMMARY OF RELIGIOUS RIGHTS ON PUBLIC CAMPUSES

If a public university permits expressive organizations toexist at all, then the following basic rights belong to reli-gious organizations on the same basis as other expressiveorganizations:

1) Equal access to campus facilities;2) Equal access to university funding;3) Freedom from university interference in the cam-

pus religious group’s internal governance andcomposition; and

4) Basic due process of law before any rights or priv-ileges are revoked, even for legitimate reasons.(“Due process of law” is a constitutional require-ment that governments must provide individualsor organizations with notice, an opportunity to beheard, and fundamental fairness before they aredeprived of “life, liberty, or property.”)

Religious Liberty in the Private University

The administrators of private universities often behaveas if their freedom from constitutional restrictions givesthem complete discretion and free rein to restrict or

43


destroy student liberties. They enact speech codes, theyapply rules unequally, and they sometimes discriminateagainst religious individuals and groups at will. However,as increasing numbers of students have fought backagainst abuses of authority and outright oppression, pri-vate universities are beginning to understand the civicand legal realities to which they are subject. While pri-vate universities are not bound by constitutional con-straints, state laws often substantially restrict theirability to engage in “Star Chamber” practices. (Courts ofStar Chamber—secretive panel tribunals that violatedaccepted rules of fairness and acted only to protect estab-lished power—were used in Tudor England against theperceived enemies of the Crown.) Public opinion and thecourts are becoming less and less inclined to put up withdouble standards, with disciplinary actions aimed againstthose who dissent from campus orthodoxy, and with theduplicity and outright fraud that have come to charac-terize private university judicial procedures and adminis-trative repression.

Secular liberal arts institutions that advertise them-selves as welcoming the fullest pluralism and debate toooften seek to advance a particular political orthodoxy.Significantly, this agenda protects and serves the careersof college administrators, who are loathe to risk thedemonstrations and bad academic publicity they fearwould follow if they were to support equal freedom overfavored political positions. Unlike many schools that

openly declare a sectarian mission, most secular, liberalarts institutions still present themselves to the public asdiverse institutions dedicated to a free exchange of ideas.They should be held to that standard. Indeed, the vul-nerability of college administrators at such liberal arts

institutions lies precisely inthe gulf between their pub-lic self-presentation (inwhich they claim to supportacademic freedom, freespeech, and the protectionof individual conscience)and their practice (which alltoo often shows a flagrantdisregard of such values). Ifa private college admittedin its catalogue that it wasdevoted to a particular esta-blished orthodoxy, and that

it would assign rights unequally, it would have consider-ably more leeway to impose its views on the studentswho gave their informed consent by attending.

Despite a tidal current of illiberal orthodoxy on themodern campus, there still is hope for civil liberties,including the indispensable right of religious liberty.Private colleges and universities may not deprive stu-dents of their legal rights in a society of law. Indeed, legaldoctrines long reserved for more traditional commercial

44


At many private colleges,

there is a vast gulf

between their public

self-presentation—in which

they claim to support

academic freedom, free

speech, and the protection of

individual conscience—and

their practice—which all too

often shows a flagrant

disregard of such values.

45


arrangements now have new applicability to the campussetting, and they may be used on behalf of the rights ofbelief and conscience. The suppression of religiousexpression and association can be ended not only by therequirements of fair process and good faith, but also,indeed, by the ancient and enduring maxims of civilizedcontract law.

To prevail in the battle for religious liberty, besiegedmembers of a private university community must under-stand and apply several appropriate legal doctrines.These doctrines, as noted, can vary from state to state,but enough common principles exist to provide somegeneral guidance. For those who treasure liberty, the lawcan still provide a refuge (although, as we shall see, pub-licity may sometimes be a more effective and powerfultool, because university administrators are hard pressedto admit and justify publicly the private basis of theiractions). The strength of that legal refuge depends onmultiple factors—the laws of the individual state inwhich the university is located; the content of universitycatalogues, handbooks, and disciplinary rules; and theprecise governance and funding of the institution.

INDIVIDUAL STATE LAWS AFFECTINGPRIVATE INSTITUTIONS

In America’s federalist structure, the states have remark-ably diverse legal systems. Rights can vary tremendous-ly from state to state. However, the U.S. Constitution

limits the extent to which any state may regulate the pri-vate universities in their midst, since the Bill of Rights(which applies both to the states and to the federal gov-ernment) protects private institutions from excessivegovernment interference. In particular, the FirstAmendment protects the academic freedom of collegesand universities at least as much as (and frequently morethan) it protects the individuals at those institutions.

Decent societies have historically found ways to pro-tect individuals from indecent behavior. State law oftenreflects that tradition of decency, and it is particularlyrelevant to how a university applies its policies and tohow university officials behave toward students (and fac-ulty). For example, some states have formulated com-mon-law rules for associations—which include privateuniversities—that prohibit “arbitrary or capricious”decision-making and that require organizations, at an

absolute minimum, to followtheir own rules and to dealin good faith with theirmembers. These standardscan be profoundly valuabledefenses of liberty in thepolitically supercharged en-vironment of the moderncampus, where disciplinewithout notice or hearing iscommonplace.

46


Because states have diverse

legal systems, your rights

can vary dramatically from

state to state. In general,

however, states will protect

individuals from fraud

and other types of

misrepresentation.

47


It is not uncommon for students or groups that devi-ate from campus orthodoxy to be essentially “railroaded”off campus. Campus officials or judicial courts mighthold closed, late-night meetings; they might not informaccused students or groups of the charges against them;they might not offer protection from threats and intimi-dation to “offensive” students holding poorly under-stood religious views. It may also be the case that, whileseveral other individuals have committed the sameoffense, or other groups have the same policies, religiousgroups are the only ones to be prosecuted. In such cases,they may be able to force the university literally to takea step back and to begin to employ sound procedures ina fair way. Good faith requires fair process and often pro-hibits extremes of arbitrary decision-making.

State law also provides common-law rules against mis-representation. Simply put, there is a long tradition oflaws against fraud and deceit. Very often, a university’srecruiting materials, brochures, and even its “admittedstudent” orientations—which are designed to enticeindividuals to attend that institution rather than anoth-er—will trumpet a school’s commitment to “diversity,”“inclusion,” and “tolerance.” Sometimes religious stu-dents will be personally assured that they will find a“home” or be “welcome” in the campus community.Promises such as these will often induce religious stu-dents to bypass opportunities (and even scholarships) atother schools and to enroll in the private secular univer-

48


sity. If these promises of “tolerance” or of a place in thecommunity later turn out to be demonstrably false, auniversity could find itself in serious legal jeopardy.

There are legal doctrines with strange-soundingnames, such as “promissory estoppel,” “detrimentalreliance,” and “fraudulent inducement,” that preventreal abuses, such as depriving an individual of the prom-ised rights and goods on which he or she relied in accept-ing someone’s offer. If a university promises religiousliberty and legal equality, and individuals rely on thatpromise, causing them to pass up other opportunities,the university may not walk away from its inducement. Auniversity has no right to let a student make a decisionbased on its enticements and then renege on its obliga-tions. To say the least, it may not promise religious lib-erty and then put someone on trial for exercising it.Private universities may rightfully be beyond the reachof the Constitution, but they have no license to deceivewith false promises. In short, prohibitions against fraud-ulent inducement to contract and against false advertis-ing can be used to force a change in an administration’sbehavior. Furthermore, such prohibitions can also be asource of substantial monetary damages for the wrongedstudent, a legal fact that can in turn be used to motivateadministrators to protect the rights and dignity of all stu-dents equally.

When applying to a college or university, studentsshould ask for its specific policies on religious liberty,

49


nondiscrimination on the basis of religion (including thelack of religion), and legal equality. Individuals already atan institution who find themselves and their religiousorganization subjected to disciplinary action shouldimmediately look very closely at university promotionalmaterials, brochures, and websites. They should alsoattempt to recollect (and to confirm with others) anyspecific conversations they may have had with universityofficials regarding their religious liberty. If those prom-ises or inducements are clear enough, then a court mayvery well hold the university to its word. This is an areaof the law, however, with many, many variations. Somecourts have given colleges vast leeway in interpretingand following their own internal policies and promises;thus, in some states, a college will be held only to “gen-eral”—as opposed to “strict”—adherence to its ownrules. In general, though, most state judicial systemsinsist that a college not ignore its own guidelines andpromises, and almost every state offers serious protec-tion from outright fraud. Also, the public does notrespect fraudulent behavior or institutional double stan-dards. If a college or university changes its rules in orderto discriminate against religion, its subsequent use ofdouble standards will not, as a matter of law, violate itsregulations or promises. Its behavior and motives, how-ever, will become obvious to everyone, which likelywould cause public disapproval, diminished enrollment,and reduced donations.

It is very common for religious individuals who dis-sent from the campus orthodoxy concerning Scriptureand sexuality to be the victims of hate campaigns andverbal abuse. Of course, just as religious students shouldhave the right to bear witness to their beliefs, it is theright of the critics of such religious students to expresstheir views and to bear their own moral witness. Thecrucial issue here is that the same rules should applyequally to all. For example, during an incident at TuftsUniversity, various student organizations covered thecampus with anti-Christian graffiti and hurled terms ofabuse at religious minorities. They told demonstrablefalsehoods about the Tufts Christian Fellowship(“TCF”), an evangelical Christian student group. If themembers of the TCF had engaged in similar behavioragainst its attackers, the judicial wrath of the Universitywould have fallen upon them with a vengeance. Forexample, the TCF might be charged with “homophobia”for its sincere religious belief that homosexual acts aresinful, but critics of the TCF never would be chargedwith anti-Christian bigotry. At Tufts, only one group wasexpected to change its beliefs and to change the lawfulbehaviors that follow from those beliefs. Such a doublestandard violates all promises of legal equality, nondis-crimination on the basis of creed, and religious liberty.

While the law does not protect either minority reli-gions or minority lifestyles from harmful statements of

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opinion, it does protect individuals from certain kinds ofdemonstrably false assertions and accusations. State lawsprohibit libel, slander, and defamation (although toomany of us confuse hurtful opinion with these torts).Further, if a hate campaign turns truly vicious—involv-ing, for example, physical intimidation, threats of vio-lence, harassing phone calls, and improper inquiries intoconfidential information—one indeed may be the victimof impermissible and punishable acts. Everyone has legalprotection from unlawful terrorist threats, intentionalinfliction of emotional distress, invasion of privacy, oractual harassment. Again, in all of these matters, therights and protections of religious students, in circum-stances of promised legal equality, should be the same asthose of all others.

THE ROLE OF UNIVERSITY CATALOGUES, HANDBOOKS, ANDDISCIPLINARY RULES

Ironically, the very universities that persecute religiousminorities may also be their best source of protection.The reason for this is simple and revealing: most private,secular universities make broad and glowing statementsabout the protected rights of their own students. Theyhave chosen to describe themselves to the world asdecent institutions dedicated to fairness, the search fortruth, tolerance, and legal equality.

Many of the catalogues,student handbooks, and dis-ciplinary codes of privateuniversities promise non-discrimination on the basisof religion, freedom ofspeech and association, and

a judicial system with fair hearings prior to any discipli-nary action. While it is a source of considerable aggrava-tion for many students to observe the rank hypocrisy ofcolleges and universities that make and then ignore suchself-presentations, these public assurances nonethelessprovide ample opportunity for forcing colleges and uni-versities to follow the principles that they advertise and

preach.As a general rule, if a uni-

versity has stated a policy inwriting, a court will requirethe university to adhere to thatpolicy. Most state courtshold that the contents ofuniversity catalogues andhandbooks constitute, atleast to some degree, con-tracts between the universi-ty and its students. Whilesome state courts have heldthat the university and its

52


A private university student’s

best protection against

persecution and abuse is

often the university’s own

written policies.

Most state courts hold that

the contents of university

catalogues and handbooks

constitute, at least to some

degree, contracts between the

university and its students.

Consequently, if a university

has stated a policy in

writing, a court will require

the university to adhere

to that policy.

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students are not in a contractual relationship, most ofthem use other legal theories to require universities tocomply with the terms of their own documents. Often, acourt perceives an inequality in bargaining powerbetween the university (which drew up the contract) andthe student, and it will resolve ambiguities in the lan-guage of the publications in favor of the student.

Unfortunately, the contents of these publications arerapidly changing, often upon the advice of lawyers paidto reduce a college’s exposure to liability from lawsuits(rather than help the colleges live up to their historicobligations to academic freedom and the rights of con-science). Instead of providing blanket free speech rightsto their students, universities now improvise speechcodes, usually found in the “verbal conduct” or “verbalbehavior” sections of harassment policies. Furthermore,instead of providing students with fair hearings, univer-sities increasingly hold secret proceedings. However,even the most outwardly repressive universities can pro-vide their students with a surprising number of rights,because even the cleverest lawyers have difficulty wipingout from a college catalogue all of the high phrases aboutliberty and fairness that colleges like to use to presentthemselves to the world.

The recent Tufts University incident presents anexcellent example of how handbooks can affect and pro-tect students, even at universities with selective andpolitically motivated harassment and anti-discrimination

policies. At Tufts, the Tufts Christian Fellowship wasderecognized (essentially banned) after it refused to per-mit an openly lesbian student to lead the group. Thederecognition decision was made—without notice to theTCF—by the tribunal of the Student Judiciary at asecret, late-night meeting.

Tufts’ student handbook stated that it was universitypolicy not to discriminate on the basis of religion. It alsostated that Tufts respected the freedom of association. Itadded, however, that student organizations were notallowed to discriminate on the basis of, among otherthings, religion and sexual orientation. Tufts wasremarkably unaware of the profound conflict amongthese various principles. It is simply impossible for a uni-versity to respect freedom of association and religiousliberty while simultaneously prohibiting religious groupsfrom using religious criteria as a basis for selecting mem-bers, let alone leaders.

Although the handbooks were confusing about thetrue extent of the TCF’s religious liberties, it was clearenough that the Student Judiciary’s secret, late-nightmeeting violated the TCF’s rights to fair process. Thestudent handbooks provided for at least two sets of openhearings, in front of impartial tribunals, before any stu-dent organization could be punished for violating schoolrules. Once Tufts was reeling from FIRE’s public expo-sure of the case, the University acknowledged its wrongwhen a University appeals panel reversed the Student

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Judiciary’s decision and re-recognized the TCF. Atlater hearings, the TCF’sability to cite its rights as setforth in Tufts’ handbooksprevented a host of furtherinjustices and proved in-strumental in securing theTCF’s eventual victory.

Thus, if students findthemselves or their organi-zation facing university discipline, or if they find thattheir university is trying to impose new or discriminato-ry policies on them, it is absolutely critical that they readevery word of the university’s handbooks and catalogues.Indeed, students should not stop with these documents.They should search the school’s website thoroughly andpick up copies of its admissions materials. Many courtswill be sympathetic to the argument that students’ tensof thousands of tuition dollars buy them not just an edu-cation but also a school’s good faith adherence to itswritten policies. Even if administrators don’t realize theimportance of following the rules, their lawyers almostcertainly will. If not, then most judges will.

THE ROLE OF UNIVERSITY GOVERNANCE AND FUNDING

A final source of possible legal protection for a student ata private university might be found in a particularly dif-

As the Tufts incident

illustrates, even if university

policy is ambiguous or

unfavorable, disciplinary

codes will often provide for

open hearings that allow

religious students and

groups to state their case.

ficult legal and political area, namely, the extent of thegovernment’s involvement in the financing and gover-nance of a school. If that involvement goes beyond a cer-tain point, it is possible that the school will be deemed,for legal purposes, “public,” and in that case, all consti-

tutional protections willapply. This happened, forexample, at the Universityof Pittsburgh and at TempleUniversity, both in Penn-sylvania. State laws thererequire that, in return forsignificant public funding, acertain number of state offi-

cials must serve on the schools’ boards. That fact ledthese formerly “private” universities to be treated, legal-ly, as “public.” In fact, however, this is a very rare occur-rence, and the odds of any private school being deemedlegally public are very slim, indeed. Unless a school isofficially public, one always should assume that the FirstAmendment does not apply there.

There are many students, faculty members, and evenlawyers who believe, wholly erroneously, that if a collegereceives any federal or state funding, it is therefore “pub-lic.” In fact, accepting governmental funds usually makesthe university subject only to the conditions—sometimesbroad, sometimes narrow—explicitly attached to thosespecific funds. (The two most prominent conditions

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On occasion, colleges that

advertise themselves as

private are—because of

excessive government

funding or governmental

control—actually public.

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attached to all federal funding are nondiscrimination onthe basis of race and gender.) Furthermore, the “strings”attached to virtually all federal grants are not alwayshelpful to the cause of liberty. This is one reason whypeople who worry about excessive government powercan be opposed to governmental funding of private col-leges and universities.

As a legal matter, there is no specific level of federalfunding that obligates a private college or institution tohonor the First Amendment. Many factors, such as uni-versity governance, the appointment of trustees, andspecific acts of legislation, need to be weighed in deter-mining the status of anygiven institution. Thatshould not stop students,however, from learning asmuch as they can about thefunding and governance oftheir institution. Do thetaxpayers truly want to sub-sidize assaults upon reli-gious liberty? Do membersof the Board of Trusteestruly want to be party tosuch assaults? Do donorswant to pay for an attack ona right that most Americanshold so dear? Information

Although private schools

rarely become public

through excessive

government funding or

control, knowledge about

funding and control can

enable students to alert

various institutions

(legislatures, alumni,

charitable foundations) that

can exert real influence over

even private university

administrations.

about funding and governance is vital and useful. Forexample, students may find that a major foundation is asubstantial source of funds contributed to their college,and they may undertake to contact that foundation toreport on how the university selectively abuses the rightsand consciences of students of faith. Colleges areextremely sensitive to contributors learning about officialbigotry and injustice at the institutions they support.

SUMMARY OF RELIGIOUS RIGHTS ON PRIVATE CAMPUSES

Because private colleges have such broad freedom todetermine their own policies and because state laws varyso widely, it is best, as a matter of law, to speak only ofhaving “potential” rights on a private campus. However,the following generalizations can be made with a certaindegree of confidence, unless you have given informedconsent to be part of a voluntary association in whichyou have waived these rights:

1) You have the right to rational, nonarbitrary disci-plinary proceedings and, to a lesser extent, torational, nonarbitrary results;

2) You have the right to receive treatment equal tothat received by those who have engaged in simi-lar behavior;

3) You have the right to honesty and good faith fromuniversity officials; and

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4) You have the right to enjoy all of the rights prom-ised you by university catalogues, handbooks, anddisciplinary codes.

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IDENTIFYING THREATS TORELIGIOUS LIBERTY

The Tactics of Oppression

The methods of attacking religious liberty are limitedonly by the creativity of the oppressors. When guardiansof the new orthodoxy sense threats to their campuspower and rule, they often will use whatever means areavailable to them to purge, silence, or punish the“heretic.”

Sometimes the attacks on your beliefs and practiceswill come merely through ridicule and attempts at pub-lic humiliation, and you should not confuse these attacks,if they use lawful means, with assaults upon your liberty.Often, liberty means that you will need the courage tobear witness to your faith and conscience. Other individ-uals have the same rights of private and public expressionthat you have (but they should not have more than youdo). Freedom for you means freedom for all.

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At other times, however, there will be a formal assaultupon your religious liberty and your rights of con-science, with campus power using university “rules” and“courts” in an effort to eliminate the influence or pres-ence of religious students and groups whose beliefs andcreeds others find “offensive.” Sadly, experience teachesthat religious individuals and organizations are mostoften victimized by university policies that, in theory,were enacted to promote tolerance, diversity, and fairness.These are 1) anti-discrimination policies; 2) speech codes;and 3) harassment codes.

The Use of Anti-discrimination Policies

Many if not most campuses have adopted comprehensiveanti-discrimination policies. These policies apply notonly to hiring, admissions, and academic policies, butalso to student life. Often, student organizations will be

“The quality and creative power of student intellectual life to this day

remains a vital measure of a school’s influence and attainment. For

the University, by regulation, to cast disapproval on particular

viewpoints of its students risks the suppression of free speech and

creative inquiry in one of the vital centers for the Nation’s intellectual

life, its college and university campuses.”

JUSTICE ANTHONY KENNEDY

Rosenberger v. University of Virginia (1995)

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Identifying Threats to Religious Liberty

instructed to adhere to policies that prohibit discrimina-tion on the basis of “race, religion, gender, ethnicity,nationality, disability, sexual orientation, or marital sta-tus.” Anti-discrimination policies are introduced andtaught at mandatory student orientations that effectivelycoerce students into re-examining long-held beliefs.Often, student organizations are required to submit con-stitutions or other documents that contain promises toabide by university anti-discrimination policies. In fact,fidelity to these policies is often a prerequisite to enjoy-ing any university benefit. The anti-discrimination poli-cy is the “loyalty oath” of the modern academy.

Religious individuals and groups are most oftenaccused of violating anti-discrimination policies relatingto gender, sexuality, and religion. As noted, several cam-pus religious organizationsare under attack becausethey allegedly have “dis-criminated” by using reli-gion, religious doctrine, andreligious belief as criteria inchoosing their members orleaders.

A moment’s thought willreveal both the extraordi-nary threat to religious liberty and the utter wrong-headedness of using “anti-discrimination” policies todiscriminate against religious belief. The assault upon

Anti-discrimination codes

should not be used to limit

the freedom of religious

individuals and organizations

to make religiously

motivated decisions or to

engage in religious speech.

the liberty of a religious group usually begins when astudent member of a religious organization or, indeed,a student outside the organization feels discriminatedagainst by a religious organization or individual. Perhaps

the offended student wasrejected for a leadershipposition in the group on thebasis of theological dis-agreements (such as dis-agreements about virtuousand sinful behavior). Per-haps the student simplybelieves that the presence ofsuch religious groups con-tributes to an “atmosphereof intolerance” on campus.

Often, students are offended simply by the idea that“fundamentalists” and “traditionalists” are gathered intheir midst. On today’s campuses, people of faith arewidely viewed as uniquely intolerant because of theirtheological beliefs about such issues as gender roles,abortion, and sexual practices.

Whatever the reason for the initial complaint, oncethat complaint is made, religious groups often findthemselves waging a difficult, lonely, and defensivestruggle. The student or group filing a complaint is oftentermed a “victim,” so the accused find themselves as“victimizers,” confronting informal charges of bigotry

64


Students who are offended

by religious speech and

conduct often claim that

religious students have

discriminated against them

or others who share the

offended student’s race,

gender, or sexual

orientation.

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and formal charges of discrimination. Frequently, thevery students, faculty, and administrators who will bejudging the validity of the complaint are participating inprotests against the religious group. (Keep track of sucha thing: it is a clear violation of any promise of an impar-tial and unbiased hearing.) When faced with name-call-ing, an intimidating atmosphere, or formal charges,many religious groups simply collapse and cave in tocampus pressure. Rather than fight for their religiousliberty, many individuals and groups surrender and sub-mit to historically unprecedented administrative inter-ference in purely religious decisions, abandoning theirwitness to their deep convictions and to religious tradi-tions that have stood for millennia.

If religious groups continue to abandon their princi-ples and living beliefs in response to accusations of “dis-crimination,” they will find that they are no longerautonomous—self-governing by their own con-sciences—in any meaningful sense. Each group will be atthe mercy of the most easily offended individual at theirinstitution. Religious groups—defined as broadly as theU.S. Supreme Court has defined them—must draw aline of conscience and conviction in the sand. Students atpublic universities, believers and unbelievers alike, mustemphatically assert their rights to freedom of religion,conscience, association, and speech. Students at privateuniversities should use every protection of common law,contract, and public exposure at their disposal. To the

66


fullest extent possible, religious students must not allowtheir persecutors to frame the terms of the debate. Evenif the other side initiates the charge, students of faithshould restate it in their own honest terms: The issue isnot whether this or that group should be “protected”from “religious intolerance.” The issue is whether wepreserve or extinguish religious liberty and religious plu-ralism. The issue is whether a campus can overcome its

own political orthodoxyand tolerate the religioustraditions of others. Inother words, the issue is:Will the university permityou to follow the dictates ofyour conscience when youare neither interfering withthe legitimate rights of oth-ers nor threatening theirhealth or safety? In thatcontext, it is crucial tounderstand that the “legiti-mate rights of others” donot include the “right” notto be offended or excluded

by the membership criteria, beliefs, and activities of areligious group. There is no such “right.” Instead, eachstudent has a right to believe, to practice his beliefs, andto associate with others who are willing to associate with

In response to discrimination

charges, do not allow yourself

or your religious group to be

branded as “intolerant” or

“discriminatory.” The issue

is not whether this or that

group should be “protected”

from “religious intolerance.”

The issue is whether we

preserve or extinguish

religious liberty and

religious pluralism.

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him or her. No one has a “right” to force himself or her-self into another’s expressive or religious group.

In 1943, the Supreme Court issued one of its mostpowerful and eloquent decisions—a decision that is asmeaningful today as it was almost sixty years ago. In thecase of West Virginia Board of Education v. Barnette, theCourt ruled that the state of West Virginia could notrequire all children to salute the American flag. Severalstudents believed the flag salute was an act of idolatryforbidden by Scripture. For the modern American col-lege student, school anti-discrimination requirementsconstitute a “pledge to diversity” in the same way thatthe pledge to the flag is a “pledge to Americanism.” Inthe Court’s majority opinion, Justice Robert Jacksoncondemned the flag salute requirement because it com-pelled a student “to declare a belief …[and] to utter whatis not on [his or her] mind.” In some of the most famouswords ever written by a justice of the Supreme Court,Justice Jackson wrote: “If there is any fixed star in ourconstitutional constellation, it is that no official, high orpetty, can prescribe what will be orthodox, in politics,nationalism, religion, or matters of opinion or force cit-izens to confess by word or act their faith [in it].” For thepublic school administrator, those words are law. For theprivate school administrator, those words represent ournational conscience and ideal. They ignore them at theirperil.

Dramatically, Barnette was decided during World

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War II, when there was a social premium placed onpatriotic activities such as the pledge to the flag. If theSupreme Court could insist that even during such a timea Jehovah’s Witness child could not be forced to raise hisarm and pledge to the flag, then surely no universityadministration is within its rights to insist that religiousstudents pledge fidelity to a definition of “diversity” thatwould undermine their religious beliefs. True diversity isachieved by making the campus safe for an authenticmultiplicity of religious, secular, conservative, liberal,traditionalist, and radical groups alike.

Colleges often attempt to justify expansive anti-dis-crimination policies by stating that those policies are“required by law.” In reality, these policies often violatethe law. No state law or federal statute takes precedenceover the Constitution, period. Not even a private uni-versity can truthfully claim that state laws compel it toenact policies that violate your religious liberties. Whenconfronted by anti-discrimination policies, rememberBarnette. A public university cannot “prescribe what will

Colleges often attempt to justify anti-discrimination policies by

stating that those policies are “required by law.” However, no

state law or federal statute takes precedence over the

Constitution, period. Not even a private university can

truthfully claim that state laws compel it to enact policies that

violate your religious liberties.

69

be orthodox” in your and your group’s faith. A privateuniversity is never required to do so, and if it chooses toprescribe a new orthodoxy, then it chooses the path ofrepression.

The Use of Speech Codes

There are now many campuses that have either inher-ently oppressive speech codes, or, more commonly,politically biased speech codes that are enforced and sus-tained by double standards. (Who has ever been tried for“offending” a Catholic or Buddhist or an evangelicalChristian?) On such campuses, every religious individualor person of conscience risks prosecution.

Though almost never used by colleges and universi-ties themselves, “speech code” is the appropriate namefor such repressive policies.In a public university, aspeech code will almostnever meet constitutionalstandards, and punishmentof a religious individual fora violation should rarely lastlonger than the time it takesfor a lawyer to write a letteror make a phone call. FIRE is aware of no authenticspeech code at a public university that has survived judi-cial attack.


Speech code is the common

term for university

regulations that punish

speech that the university

(or others) find harmful or

offensive.

Recall, however, that private colleges and universitiesdo not have to respect constitutional free speech rights,and few of them do. The best legal and tactical responsein these circumstances, therefore, is to ensure that prop-er disciplinary procedures are followed. If cases receiveopen hearings or true public scrutiny, the absurdity ofthe underlying charge can be exposed. Exposure in turnoften leads universities to back away from their charges.Even if campus administrators are not initially swayed,the weight of alumni and public opinion can often bebrought to bear on your behalf. Speech codes are singu-larly unpopular in the wider world; people across thepolitical spectrum oppose them, and alumni generallydespise them. Letter writing campaigns and press releas-es to members of the media sympathetic to freedom ofspeech, freedom of conscience, and religious libertyoften can result in changed campus minds. This is acountry that truly believes in religious pluralism, and youcan use that moral reality to benefit your cause.Remember always to focus on the heart of the issue: theuniversity’s abusive intolerance of your beliefs and itsdouble standard in applying its rules.

Liberal arts institutions invariably promise academicfreedom, the rights of individual conscience, and respectfor each individual’s search for truth. Because of that, asnoted, speech codes are often in flagrant conflict withsuch assurances and can thus be attacked, in court if nec-essary, as violations of the institution’s contract with its

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students. Administrators arehard pressed to defendpublicly their obvious selec-tive double standards andhypocrisies. The real sensi-tivity of colleges and uni-versities to public opinionmakes media exposure apowerful weapon againstspeech codes.

The Use of Harassment Codes

Because the phrase “speech code” so clearly signifiesoppression and an assault on academic freedom, the termhas become rare in higher education, both public andprivate. Many professors lost their jobs in the 1950sbecause of assaults upon free speech, and many studentswere expelled in the 1960s for the exercise of their rightsof free expression. As a new generation of speech codesbegan to appear in the 1980s and were tested in court,however, it became obvious that, at public universities atleast, they were not going to pass constitutional scrutiny.Private universities, while not subject to FirstAmendment limitations, were often embarrassed to findthemselves in the position of seeming to offer their stu-dents fewer speech rights than were available for stu-dents at public institutions. Indeed, a university’s admis-

Speech codes at public

universities are almost

always unconstitutional.

At private universities, they

tend to be both unpopular

and incompatible with basic

notions of academic

freedom.

sion that it had a “speech code” often proved shamefulbecause the very term seemed so obviously incompatiblewith academic freedom. Thus, campuses began tochange not their repressive behaviors but the names theygave them. “Speech codes” increasingly were replaced by“harassment codes.” Who, after all, could object to a

code that forbade one stu-dent to harass another? Justas “speech codes” hadbecome an embarrassment,federal legislation and regu-lation began to take aim atsexual harassment, a phrase

that has now become ubiquitous. Harassment codes ini-tially arose from the common-sense recognition in fed-eral law that it was inconsistent to end job discriminationbut to permit hostile conditions that made it impossiblefor someone actually to work.

All universities prohibit sexual harassment—words orconduct that create a “hostile environment” on the basisof sex—and many also prohibit racial or religious harass-ment. Many of these policies are quite straightforwardand reflect simply the requirements of federal and statelaw (requirements that never, of course, can violate theConstitution or the Bill of Rights). Other policies, how-ever, especially (but not solely) at private colleges anduniversities, go far beyond the requirements of law andpermit or, indeed, require that any words or conduct that

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University prohibitions

against harassment should

not be used as disguised

speech codes.

73


are subjectively offensive toa member of a protected classbe treated as punishableharassment. In other words,if a person feels harassed,then, in the university’seyes, that person is har-assed.

An example of the kind ofharassment charges that religious individuals can facehappened recently at Cornell University. In the midst ofcampus debate about campus gay rights policies andordinances, a Christian professor posted some materialopposing the proposed gay rights policy and outlining anorthodox Christian position on homosexual behavior.Rather than engaging him in any kind of substantivedebate (or simply ignoring him), several studentscharged him with sexual harassment. The professor notonly became a pariah on campus but he was summonedto official hearings and faced charges that placed his joband career in jeopardy. It was only after the interventionof a legal foundation devoted to religious liberty thatsuch extraordinary charges were dropped and his careerpreserved.

For the public school student, the Constitution pro-vides almost absolute protection from the kind of harass-ment charges faced by the Cornell professor. In fact, afederal Court of Appeals, in the case of Saxe v. State

Harassment regulations

should not be used to

prohibit any words or

conduct that merely are

subjectively offensive to a

member of a protected class.

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College Area School District (2001), recently struck down ahigh school anti-harassment policy that—like many uni-versity policies—prohibited “verbal or physical conductbased on… race, religion, color, national origin, gender,sexual orientation, disability, or other personal charac-teristics, and which has the purpose or effect of substan-tially interfering with a student’s educational perform-ance or creating an intimidating, hostile or offensiveenvironment.” (This language, by the way, is foundeverywhere in harassment codes on and off campus, andis commonly called the “hostile environment” clause.From a First Amendment point of view, it is vital tounderstand that the First Amendment protects speecheven if someone subjectively decides that another per-son’s expression creates a “hostile environment.” Some

behaviors indeed may beoutlawed as true harass-ment, but causing discom-fort by the mere expressionof belief falls under the cat-egory of constitutionallyprotected speech.)

In Saxe, the Court foundthat the school district’s

broad policy, which prevented students from makingnegative comments about other students’ appearance,clothing, social skills, and even values, “strikes at theheart of moral and political discourse—the lifeblood of

At public universities, the

Constitution protects

individuals or groups from

being punished for speech

that is merely offensive to a

person or group.

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constitutional self-government (and democratic educa-tion) and the core concern of the First Amendment.” Inthe Court’s words, the fact that some speech may offend“is not a cause for its prohibition, but rather the reasonfor its protection.” Simply put, the government cannotprevent you from sharing your religious views justbecause some students may find those views offensive.

For the private school student, the situation is, again,more complex. You should be extremely familiar withstated school policy on stu-dents’ rights to an openhearing, and you shouldknow whether your schoolexplicitly promises to pro-tect religious belief andexpression. Ironically, thepolicies of many schoolsmay prohibit religiousharassment to the sameextent that they prohibitsexual harassment. Anti-religious students some-times use far more offensivelanguage to describe youthan you used to “harass” your “victim.” In such a situa-tion, filing a harassment counterclaim can bring thewhole proceeding to a crashing halt. Faced with theprospect of censoring anti-religious expression, colleges

Private school students should

attack unfair anti-harassment

regulations in the same way

that they do speech codes—

by seeking to apply public

pressure and by using, to

maximum advantage, other

school policies, such as

guarantees of academic

freedom and the right to a

public hearing.

and universities usually rediscover free speech and thedesirability of open debate.

There is perhaps a certain bizarre logic in the campusargument that an orthodox Muslim, Christian, Jewish, orother religious student who expresses religiously basedcriticisms of premarital sex, homosexual conduct, con-temporary gender roles, or abortion is thereby “harass-ing” students with different beliefs or practices. Thelegal definition of harassment, however, is quite differ-ent from what prevails in today’s campus codes.Traditionally, “harassment” applied merely to speech hasmeant speech delivered in a time, place, or mannerintended to disturb rather than to communicate. Thus,telephoning someone at three o’clock every morning tosay “I hate you” is harassment because of the disturbingtime and manner of delivery. Such conduct would also beharassment even if the message were “I love you,” unlessthe listener invited the message and the timing. If some-one calls a religious person a “born-again bigot,” forexample, that is the expression of an opinion, and intol-erance is no crime. If someone awakened a religious stu-dent every night to say, “I agree with you,” preventinghim from working or sleeping, that indeed could beharassment.

It is not, for example, harassment for a Catholic groupto argue vociferously that abortion is murder. Whilesuch an assertion doubtless would be seen as offensive orhostile by pro-choice individuals, or by women who have

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had an abortion and do not like to be called “murderersof innocent life,” Catholics who express such beliefs arefully protected. It would be wholly different, however, ifthe Catholic group continually phoned a woman andwhispered “murderer” into the phone, preventing herfrom working, or sleeping, or enjoying a certain peace.The problem, in short, is that many college administra-tors and students consider speech and expression thatupsets a politically favored student in any way to be“harassment.” In this respect, “harassment” codes aresimply “offensive speech codes” in disguise.

Despite the change of name, then, nothing haschanged since the days of openly named speech codes.When religious students are charged with “harassment”for expressing and practicing their beliefs, they can oftendefend themselves simply by clarifying the muddledthinking of their opponents. Making an analogy on thebasis of legal equality (ask, for example, if it is “harass-ment” when pro-choice activists offend pro-lifeCatholics by their actions or expressions) is often aninstructive and effective argument.

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FIVE STEPS TO FIGHTING BACK

When faced with an attack on your religious liberty:

1. Take careful notes of conversations and keep copies ofany written correspondence with university officials,whether administrators, faculty members, or studentleaders;

2. Carefully read your student handbook, disciplinarycode, and other policies applicable to you or yourorganization;

3. Reread the sections of this guide that are applicable toyour school—public or private;

4. Build a coalition—contact other students or studentgroups that may suffer from the same policies oraction;

5. Call FIRE.

When you are empowered with the knowledge containedin this guide, armed with the information applicable toyour unique situation, and allied with the committedadvocates at FIRE, you will no longer be helpless oralone. Time and again, courageous students who havefollowed these precise steps have turned the tide againstreligious persecution and restored true diversity to theiruniversity communities.

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CONCLUSION: FIGHTING BACK

It is easy for persecuted individuals and groups to feelalone. It is extremely rare for a persecuted student to bea part of a religious majority on campus or to be per-ceived as part of the mainstream of campus life.University officials often feel free to attack religiousindividuals precisely because such students (or faculty)often have little or no campus support.

This feeling of isolation is compounded when the per-secuted individual is instructed repeatedly to keep thedispute “in the community,” as if universities were some-how sacrosanct entities that would be corrupted by theknowledge and outrage of “outsiders.” Many southernsheriffs defending segregation used to talk that way inthe 1950s. The pressure to stay silent is reinforced by“secret” meetings and “confidential,” “informal” con-tacts. Administrators indicate to accused students that

80


they will receive reasonable treatment if they agree tocampus “dialogue” (a code word for what totalitarianscall “thought reform” and “re-education”). The power ofvocal anti-religious campus activists also serves to con-vince religious students that any extra attention to theirproblem will only cause them more harm. If the world isagainst them, why invite more of the world into the dis-pute?

Although it requires no small amount of courage tobear moral witness, you should never acquiesce todemands to “keep quiet” or to disingenuous pressure to“resolve” things “within the community.” Your freedomis the foundation of everyone else’s freedom, whetherthey know that or not. It is malicious for campus officialsto bring charges against isolated religious individuals orgroups and then reinforce their isolation by insisting thatthey cut off their access to outside assistance. This mal-ice is also a mark of weakness, because it arises ultimate-ly from fear. It is rare, indeed, for oppressors to survivethe glare of publicity unscathed, especially in a nation asdevoted to religious liberty and religious pluralism asAmerica historically has been. To say the least, you arenot alone.

In the long run, there are many individuals and groupsbeyond the walls of your campus who will support yourrights passionately and vigorously. This large groupincludes many, many people who may disagree thor-oughly with your religious beliefs, but who will never-

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Conclusion: Fighting Back

theless defend your crucial right to express your viewsand to live by the lights of your conscience without beingcharged with harassment. Such supporters will need toknow, of course, that the time, place, and manner of yourreligious expression did not interfere with the rights andsafety of others. If they know that you truly are beingprosecuted for the content of your beliefs, they will notbe indifferent. They will understand far more than cam-pus zealots could ever imagine that it is not a violation ofthe rights and safety of others to express or bear witnessto something that others merely find unpleasant, offen-sive, or psychologically uncomfortable.

Realize that while political orthodoxies may seem torule unchallenged at your institutions, they do not gov-ern mainstream American life. This is a nation that trulyvalues religious liberty and individual rights. Campus

“Both morals and sound policy require that the state should not

violate the conscience of the individual. . . . So deep in its significance

and vital, indeed, is it to the integrity of man’s moral and spiritual

nature that nothing short of self-preservation of the state should

warrant its violation; and it may well be questioned whether the state

which preserves its life by a settled policy of violation of the conscience

of the individual will not in fact ultimately lose it by the process.”

CHIEF JUSTICE HARLAN FISKE STONE

“The Conscientious Objector,” (1919)

oppressors, when forced to explain their actions to thepress, to alumni, or to judges, look foolish, hypocritical,and more concerned with advancing their academiccareers than with protecting the essential freedoms oftheir students and faculty.

Realize, too, that you cannot delegate your fight forfreedom to like-minded faculty members. If you want toprotect your rights, then you must act. Recent courtdecisions have resulted in less academic freedom for pro-fessors and administrators. Students generally possessmore free speech rights and religious liberties than anyother person or entity on campus, and therefore it is stu-dents who must take the lead in protecting those free-doms. The reason that students are generally freer thanprofessors is that they are legally customers of the college,while professors are its employees. As in any business, anemployer has considerable latitude to establish workingrules for its employees, although academic employeesare protected to some considerable extent by academicfreedom. Students, however, enjoy greater leeway. Astore may instruct its clerks to greet customers with“Good morning” and may punish them for not comply-ing. It may not deal in a similar manner, to say the least,with its customers.

When you defend your liberty, you will not fightalone. In the words of the late Supreme Court JusticeLouis Brandeis: “Sunlight is the best disinfectant.”Campus oppressors cannot justify in the light of day

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Conclusion: Fighting Back

what they do to students within what FIRE’s co-founders, Alan Charles Kors and Harvey A. Silverglate,term “The Shadow University.” The Foundation forIndividual Rights in Education exists to bring oppressionto light, and, once it has been exposed, to destroy it. Tothat end, FIRE sustains a formidable array of media con-tacts, academic relationships, and legal allies across thebroadest spectrum of opinion, all of whom are commit-ted to individual rights. Persecuted members of the aca-demic community—even if they are completely isolatedon campus—should not feel alone. Since 1999, FIRE hasdeployed its resources on behalf of individual students,faculty members, and student groups at schools smalland large, public and private. If your individual rights arebeing trampled, visit www.thefire.org. FIRE will defendyou, and, in similar circumstances, it will defend the realrights of your critics. Liberty and legal equality are notmerely for this or that individual or group. They are away of being human that leaves us capable, within thelaw, of moral choice and personal responsibility.Religious liberty, as the world has learned, is one of themost vital aspects of human freedom and dignity.

The struggle for campus religious liberties has trulybegun. After almost four decades of retreat, religiousindividuals are beginning to draw their own rightful linesand to make their own stands at universities across thecountry. The stakes could not be higher for those whotreasure free expression, who value true diversity, and

who understand that the right to private conscience isthe most fundamental and irreducible of liberties. Thoseof you who have experienced efforts to repress yourthoughts, convictions, and souls now must take a standon behalf of your foundational rights as human beings.For too long, the guardians of campus orthodoxy havebeen permitted to twist the meanings of “tolerance” and“inclusion,” denying both to persons of faith. It is timeto name and resist campus leaders who tolerate onlythose who bow before their chosen gods and whoinclude only those who worship at their particular ideo-logical shrines.

It is no exaggeration to say that the future of Americanfreedom is at stake in the struggle for campus liberty andlegal equality. America’s students cannot learn to respectfreedom if they participate in—or passively tolerate—tyranny. Today’s college campus is tomorrow’s public,political, educational, and civic culture. By standingagainst campus persecution, by fighting the tyranny ofenforced orthodoxy and legal inequality, religious indi-viduals and their supporters preserve not only their ownconsciences, but also the liberty of our entire society.

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CASE APPENDIX

The following cases were each discussed in the text of the guide.Their precise legal citations are below. The cases are listed in theirorder of appearance.

Cantwell v. Connecticut, 310 U.S. 296 (1940).

Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002).

Sherbert v. Verner, 374 U.S. 398 (1963).

Employment Division v. Smith, 494 U.S. 872 (1990).

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).

United States v. Seeger, 380 U.S. 163 (1965).

Welsh v. United States, 398 U.S. 333 (1970).

Torcaso v. Watkins, 367 U.S. 488 (1961).

Frazee v. Illinois Department of Employment Security, 489 U.S. 829(1989).

Thomas v. Review Board of Indiana Employment Security Division, 450U.S. 707 (1981).

Rosenberger v. University of Virginia, 515 U.S. 819 (1995).

West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

Saxe v. State College Area School District, 240 F.3d 200 (2001).

Widmar v. Vincent, 454 U.S. 263 (1981).

Lamb’s Chapel v. Center Moriches Union Free School, 508 U.S. 384(1993).

Good News Club v. Milford Central School, 121 S.Ct. 2093 (2001).

University of Wisconsin v. Southworth, 529 U.S. 217 (2000).

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515U.S. 557 (1995).

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

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FIRE’s GUIDES TO STUDENT RIGHTS ON CAMPUS

BOARD OF EDITORS

Vivian Berger – Vivian Berger is the Nash Professor of Law Emeritaat Columbia Law School. Berger is former New York CountyAssistant District Attorney, and former Assistant Counsel to theNAACP Legal Defense and Educational Fund. She has done signifi-cant work in the fields of criminal law and procedure (in particular,the death penalty and habeas corpus) and mediation, and continues touse her expertise in various settings, both public and private.Professor Berger is General Counsel for and National BoardMember of the American Civil Liberties Union and has writtennumerous essays and journal articles on human rights and dueprocess.

T. Kenneth Cribb, Jr. – T. Kenneth Cribb, Jr. is the President of theIntercollegiate Studies Institute, a nonpartisan, educational organiza-tion dedicated to furthering the American ideal of ordered liberty oncollege and university campuses. He served as Counselor to theAttorney General of the United States and later as Assistant to thePresident for Domestic Affairs during the Reagan Administration.Cribb is also President of the Collegiate Network of independentcollege newspapers.

Alan Dershowitz – Alan Dershowitz is the Felix FrankfurterProfessor of Law at the Harvard Law School. He is an expert on civilliberties and criminal law and has been described by Newsweek as “thenation’s most peripatetic civil liberties lawyer and one of its most dis-tinguished defenders of individual rights.” Dershowitz is a frequentpublic commentator on matters of freedom of expression and of dueprocess, and is the author of eighteen books, including, most recent-ly, Why Terrorism Works: Understanding the Threat, Responding to theChallenge, and hundreds of magazine and journal articles.

Paul McMasters – Paul McMasters is the First AmendmentOmbudsman at the Freedom Forum in Arlington, Virginia. Hespeaks and writes frequently on all aspects of First Amendmentrights, has appeared on various television programs, and has testifiedbefore numerous government commissions and congressional com-mittees. Prior to joining the Freedom Forum, McMasters was theAssociate Editorial Director of USA Today. He is also past NationalPresident of the Society of Professional Journalists.

Edwin Meese III – Edwin Meese III holds the Ronald Reagan Chairin Public Policy at the Heritage Foundation. He is also Chairman ofHeritage’s Center for Legal and Judicial Studies. Meese is aDistinguished Visiting Fellow at the Hoover Institution at StanfordUniversity, and a Distinguished Senior Fellow at The University ofLondon’s Institute of United States Studies. He is also Chairman ofthe governing board at George Mason University in Virginia. Meeseserved as the 75th Attorney General of the United States under theReagan Administration.

Roger Pilon – Roger Pilon is Vice President for Legal Affairs at theCato Institute, where he holds the B. Kenneth Simon Chair inConstitutional Studies, directs Cato’s Center for ConstitutionalStudies, and publishes the Cato Supreme Court Review. Prior to join-ing Cato, he held five senior posts in the Reagan Administration. He

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has taught philosophy and law, and was a National Fellow atStanford’s Hoover Institution. Pilon has published widely in moral,political, and legal theory.

Jamin Raskin – Jamin Raskin is Professor of Law at AmericanUniversity Washington College of Law, specializing in constitution-al law and the First Amendment. He served as a member of theClinton-Gore Justice Department Transition Team, as AssistantAttorney General in the Commonwealth of Massachusetts and asGeneral Counsel for the National Rainbow Coalition. Raskin has alsobeen a Teaching Fellow in the Government Department at HarvardUniversity and has won several awards for his scholarly essays andjournal articles. He is author of We the Students and founder of theMarshall-Brennan Fellows Program, which sends law students intopublic high schools to teach the Constitution.

Nadine Strossen – Nadine Strossen is President of the AmericanCivil Liberties Union and Professor of Law at New York Law School.Strossen has published approximately 250 works in scholarly andgeneral interest publications, and she is the author of two significantbooks on the importance of civil liberties to the struggle for equality.She has lectured and practiced extensively in the areas of constitu-tional law and civil liberties, and is a frequent commentator in thenational media on various legal issues.

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Board Of Editors

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ABOUT FIRE

FIRE’s mission is to defend, sustain, and restore individual rights atAmerica’s colleges and universities. These rights include freedom ofspeech, legal equality, due process, religious liberty, and sanctity ofconscience—the essential qualities of civil liberty and human dignity.FIRE’s core goals are to protect the unprotected against repressivebehavior and partisan policies of all kinds, to educate the public aboutthe threat to individual rights that exists on our campuses, and to leadthe way in the necessary and moral effort to preserve the rights of stu-dents and faculty to speak their minds, to honor their consciences,and to be treated honestly, fairly, and equally by their institutions.

FIRE is a charitable and educational tax-exempt foundation withinthe meaning of Section 501 (c) (3) of the Internal Revenue Code.Contributions to FIRE are deductible to the fullest extent providedby tax laws. FIRE is funded entirely through individual donations; wereceive no government funding. Please visit www.thefire.org formore information about FIRE.

FIRE

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Alan Charles Kors Harvey A. SilverglateCodirector Codirector

Thor L. HalvorssenExecutive Director

Greg Lukianoff Laura KulpDirector, Legal and Public Director, Center for Religious

Advocacy Freedom on Campus

Board of Advisors

David Brudnoy Herbert LondonLloyd Buchanan Michael Meyers

T. Kenneth Cribb, Jr. Daphne PataiCandace de Russy Virginia Postrel

Benjamin F. Hammond Milton RosenbergNat Hentoff John R. Searle

Roy Innis Teddy ShalonWendy Kaminer Ricky SilbermanWoody Kaplan Christina Hoff SommersLeonard Liggio Kenny J. Williams

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KNOW YOUR RIGHTSPROGRAM:

FIRE’s GUIDES TO STUDENT RIGHTS ON CAMPUS PROJECT

FIRE believes it imperative that our nation’s future leaders be edu-cated as members of a free society, able to debate and resolve peace-ful differences without resort to repression. Toward that end, FIREimplemented its pathbreaking Guides to Student Rights on CampusProject.

The creation and distribution of these Guides is indispensable to chal-lenging and ending the climate of censorship and enforced self-cen-sorship on our college campuses, a climate profoundly threatening tothe future of this nation’s full enjoyment of and preservation of liber-ty. We trust that these Guides will enable a wholly new kind of dis-course on college and university campuses.

A distinguished group of legal scholars serves as Board of Editors tothis series. The board, selected from across the political and ideolog-ical spectrum, has advised FIRE on each of the Guides. The diversityof this board proves that liberty on campus is not a question of parti-san politics, but of the rights and responsibilities of free individuals ina society governed by the rule of law.

It is our liberty, above all else, that defines us as human beings, capa-ble of ethics and responsibility. The struggle for liberty on American

campuses is one of the defining struggles of the age in which we findourselves. A nation that does not educate in freedom will not survivein freedom and will not even know when it has lost it. Individuals toooften convince themselves that they are caught up in moments of his-tory that they cannot affect. That history, however, is made by theirwill and moral choices. There is a moral crisis in higher education. Itwill not be resolved unless we choose and act to resolve it. We inviteyou to join our fight.

Please visit www.thefireguides.org for more information on FIRE’sGuides to Student Rights on Campus.

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CONTACTING FIREwww.thefire.org

Send inquiries, comments, and documented instances of betrayals offree speech, individual liberty, religious freedom, the rights of con-science, legal equality, due process, and academic freedom on campusto:

FIRE's website:www.thefire.org

By email: [email protected]

By mail:210 West Washington Square, Suite 303Philadelphia, PA 19106

By phone/fax:215-717-FIRE (3473) (phone)215-717-3440 (fax)

AUTHOR

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David A. French, a graduate of HarvardLaw School, is also author of A Seasonfor Justice: Defending the Rights of theChristian Home, Church and School(Broadman & Holman 2002). Mr.French has extensive experience repre-senting religious individuals and groupsand serves as Counsel for InterVarsityChristian Fellowship’s Religious Free-dom Crisis Team. Mr. French hadtaught at Cornell Law School and is amember of the FIRE Legal Network.

fire’s guide to religious liberty on campus · 2018-04-17 · fire’s guides to student rights...

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