Student Religious Groups’
First Amendment Rights
After Hastings
g
NASPA Conference 2011
Dr. John Wesley Lowery
Indiana University of Pennsylvania
www.johnwesleylowery.com
Overview of the Program
Student Organizations & The First
Amendment
• Historical Context and Basis
• Recognition
R
iti
off Student
St d t Groups
G
in
i
general
• Funding of Religious Student
Organizations
• Religious Student Groups and NonDiscrimination
Focus on First Amendment
Rights
• Public Institutions
• Private Institutions engaged in
“State Action”
• Private Institutions that have
contractually pledged to provide
students “Free Speech” or
constitutional rights.
Amendment I (1791)
US Constitution
Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the press;
or the right of the people
peaceably to assemble, and to
petition the Government for a
redress of grievances.
1
Tinker v. Des Moines
Independent Community School
District, 393 U.S. 503 (1968)
Tinker v. Des Moines (1969)
“In our system, state-operated schools may
not be enclaves of totalitarianism. School
officials do not possess absolute authority over
their students. Students in school as well as
out of school are "persons " under our
Constitution They are possessed of
Constitution.
fundamental rights which the State must
respect, just as they themselves must respect
their obligations to the State. In our system,
students may not be regarded as closed-circuit
recipients of only that which the State chooses
to communicate. They may not be confined to
the expression of those sentiments that are
officially approved.” (p. 511)
Healy v. James, 408 U.S.
169 (1972).
“While the freedom of association is
not explicitly set out in the [First]
Amendment, it has long been held to
be implicit in the freedom of speech,
speech
assembly, and petition. There can be
no doubt that denial of official
recognition, without justification, to
college organizations burdens or
abridges that associational right” (p.
181).
2
Healy v. James’ Limits
Constitutionally permissible to deny
recognition to a group, if…
1. The group has a known “affiliation with
an organization possessing unlawful
aims and goals,
goals and a specific intent to
further those illegal goals” (p. 185).
2. The group poses a “substantial threat
of material disruption through its
conduct” (p. 189).
3. The group refuses to comply with
“reasonable school rules governing
conduct” (p. 191).
Access to Space
Widmar v. Vincent, 454 U.S. 263
(1981).
“Through its policy of accommodating
their meetings
meetings, the University has
created a forum generally open for
use by student groups. Having done
so, the University has assumed an
obligation to justify its
discriminations and exclusions under
applicable constitutional norms.”
Access to Space
• “Here UMKC has discriminated against student
groups and speakers based on their desire to
use a generally open forum to engage in
religious worship and discussion. These are
forms of speech and association protected by
the First Amendment. In order to justify
discriminatory exclusion from a public forum
based on the religious content of a group's
intended speech, the University must therefore
satisfy the standard of review appropriate to
content-based exclusions. It must show that its
regulation is necessary to serve a compelling
state interest and that it is narrowly drawn to
achieve that end.”
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Access to Space
“The basis for our decision is narrow.
Having created a forum generally open
to student groups, the University seeks
to enforce a content-based exclusion of
religious speech
speech. Its exclusionary policy
violates the fundamental principle that
a state regulations of speech should be
content-neutral, and the University is
unable to justify this violation under
applicable constitutional standards.“
Widmar v. Vincent
Association Rights of
College Students
• A right to organize;
• A right to be recognized by the
institution if it has a policy or
institution,
recognizing student groups; and
• A right to use meeting rooms, other
facilities on campus, and receive
funding the manner used by other
organizations.
Funding of Student
Organizations
Rosenberger v. Rector and Board of
Visitors of the University of Virginia,
515 U.S. 819 (1995).
• 5-4
5 4 Decision with Justice O’Connor
O Connor
filing the deciding concurring opinion.
• Involves payments to a 3rd party, not
to the student organization.
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A Metaphysical Public
Forum
“The SAF [the Student Activity Fee]
is a forum more in a metaphysical
than in a spatial or geographic
sense but the same principles are
sense,
applicable” (Justice Kennedy, p.
830).
Viewpoint
Discrimination
“By the very terms of the SAF prohibition, the
University does not exclude religion as a subject
matter but selects for disfavored treatment those
student journalistic efforts with religious editorial
viewpoints. Religion may be a vast area of inquiry,
b t it also
but
l provides,
id
as it did here,
h
a specific
ifi
premise, a perspective, a standpoint from which a
variety of subjects may be discussed and
considered. The prohibited perspective, not the
general subject matter, resulted in the refusal to
make third-party payments, for the subjects
discussed were otherwise within the approved
category of publications” (p. 831).
Mandatory Student Activity
Fees: The Supreme Court
Weighs In
5
Board of Regents v.
Southworth, 529 U.S. 217
(2000).
• 9-0 Decision
– 6 justices joining in
the majority
opinion (Kennedy,
R h
Rehnquist,
i t
O'Connor, Scalia,
Thomas, and
Ginsburg)
– 3 justices filed a
concurring opinion
(Souter, Stevens,
and Breyer)
Justice Anthony M.
Kennedy
Southworth
“The First Amendment permits a
public university to charge its students
an activity fee used to fund a program
to facilitate extracurricular student
speech
h if the
th program is
i viewpoint
i
i t
neutral. We do not sustain, however,
the student referendum mechanism of
the University's program, which
appears to permit the exaction of fees
in violation of the viewpoint neutrality
principle.” (p. 220).
Southworth
“The University may determine that
its mission is well served if students
have the means to engage in
dynamic discussions of philosophical,
religious scientific
religious,
scientific, social
social, and
political subjects in their
extracurricular campus life outside
the lecture hall. If the University
reaches this conclusion, it is entitled
to impose a mandatory fee to sustain
an open dialogue to these ends” (p.
233)
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Southworth:
Referendums
“It remains to discuss the referendum
aspect of the University's program. . . .
To the extent the referendum
substitutes majority determinations for
viewpoint neutrality it would undermine
the constitutional protection the
program requires. The whole theory of
viewpoint neutrality is that minority
views are treated with the same
respect as are majority views” (p.
235).
Southworth continues
The Supreme Court order further
consideration of the case by the
federal district court to ensure that
the mandatory student activity fees
were distributed in a manner which
was viewpoint neutral. The district
court’s ruling was appealed to the
Court of Appeals for the 7th Circuit.
Limiting Discretion
The court identified a number of key
factors in determining that the student
government’s discretion was limited:
• Specific Funding Standards,
• Policy prohibiting viewpoint
discrimination,
discrimination
• Removal for such discrimination,
• Specific procedural requirements for
funding hearings,
• Specific deadlines for funding decisions to
be made, and
• Comprehensive appeals process.
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Forms of Viewpoint
Discrimination
The court also discussed several factors
which could easily violate the principle
of viewpoint neutrality:
• Consideration of the length of time a
student organization has been in
existence,
• Consideration of the amount of funding
received in past years, and
• Consideration of the popularity of the
speech.
Badger Catholic v. Walsh
• September 2010 decision from the
United States Court of Appeals for
the 7th Circuit.
• Involves the University
y of Wisconsin
at Madison (again)
• Badger Catholic was a registered
student organization.
• Badger Catholic was generally
eligible and applied for funding from
the mandatory student fee program.
Badger Catholic v. Walsh
• Badger Catholic was denied funding
on the grounds that its speech was
“religious in character.”
• UW-Madison’s p
policy
y did not allow
for funding of “worship,
proselytizing, and religious
instruction.”
• UW-Madison’s policy did allow for
“dialog, discussion or debate from a
religious perspective.”
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Badger Catholic v. Walsh
• Relying on Widmar, Rosenberger,
Southworth, and Christian Legal
Society, the court concluded:
There can be no doubt after Christian
Legal Society that the University’s
activity-fee fund must cover Badger
Catholic's six contested programs, if
similar programs that espouse a secular
perspective are reimbursed. (p. 781)
Badger Catholic v. Walsh
In his dissent, Judge Williams wrote,
The University of Wisconsin at Madison has
created a forum by designating funds with the
goal of enhancing the educational and
extracurricular experience
p
of its students. The
line it has drawn in defining the limits of its
forum is view-point neutral and
constitutionally sound—it neutrally allows each
student group equal access to the student
fund as long as the group identifies activities
that are reasonably within the goals of the
limited forum it has created. (p. 782)
Institutional
Non-Discrimination
Policies and Student
Religious Groups
9
Christian Legal Society
• Christian Legal Society refused to admit into
membership “anyone who engages in
‘unrepentant homosexual conduct’ or holds
religious convictions different from those in
the [group’s]
[group s] Statement of Faith
Faith.”
• Hastings rejected the group’s application for
registered student status because “the
group's bylaws did not comply with Hastings’
open-access policy because they excluded
students based on religion and sexual
orientation.”
Christian Legal Society
• The Supreme Court 5 to 4 in favor of
Hastings Law School.
• Justice Ginburg wrote the majority
decision and was joined by Justices
Stevens Kennedy,
Stevens,
Kennedy Breyer,
Breyer and
Sotomayor.
• Justices Stevens and Kennedy filed
concurring opinions.
• Justice Alito wrote the dissenting opinion
in which Justices Scalia, Thomas, and
Chief Justice Roberts joined.
Christian Legal Society
• The Court focused on a single question:
Whether a public institution can
constitutionally condition access to a
student-organization forum on compliance
with an all-comers policy.
p
y
• The majority concluded “The all-comers
policy is a reasonable, viewpoint-neutral
condition on access to the RSO forum; it
therefore does not transgress First
Amendment limitations.”
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Hastings Continued
• The U.S. Court of Appeals for the
Ninth Circuit recently rejected the
Christian Legal Society’s efforts to
claim on appeal that all
all-comers
comers
policy was not consistently applied,
because had not been previously
raised.
What does this mean in
practice?
• Carefully examine your policies:
– Do you require all student groups to
abide by the institution’s
institution s nonnon
discrimination policy?
– Do you require that all students groups
accept all student members?
– If so, do you consistently apply and
enforce that policy?
For more information contact:
John Wesley Lowery, Ph.D.
Associate Professor, SAHE
Department
Indiana University of Pennsylvania
206 Stouffer Hall
Indiana, PA 15705
724-357-4535 office
Visit www.iup.edu/sahe
[email protected]
http://www.johnwesleylowery.com
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