Discrimination in Registered Student Organizations

Abstract

Christian groups have filed lawsuits against several institutions across the country on behalf of students and student organizations. These lawsuits deal with the students’ rights to speak out against homosexuality and restrict homosexual students from joining Christian organizations on campus. These lawsuits follow a recent movement is fueled by gay rights activists and groups promoting universities to change their tolerance and anti-discrimination policies to include sexual orientation.

Discrimination in Registered Student Organizations

Is it discrimination to forbid someone to discriminate? Are tolerance laws intolerable? Is hate speech protected by free speech? These questions seem circular at first glance, but they are the foundation of a serious issue currently facing leaders in higher education. Institutions across the nation are reviewing their anti-discrimination policies and it seems students are protesting no matter what decision they make. The Human Rights Campaign is crossing the nation asking colleges to reassess their policies and consider adding sexual orientation to the list of traits that they will not discriminate against. In their wake, the Alliance Defense Fund is filing lawsuits for discrimination and violation of the first amendment. As university officials make decisions about these issues, they are setting a precedent that will affect the country in ways that extend beyond the campus borders.

GLBT Rights

The Human Rights Campaign (HRC) is an organization that works for Gay, Lesbian, Bisexual, and Transgender rights. “By inspiring and engaging all Americans, HRC strives to end discrimination against GLBT citizens and realize a nation that achieves fundamental fairness and equality for all.” (Human, 2004) On this issue they work to end campus discrimination for both students and employees based on sexual orientation. Several years ago they began asking campuses to change their policy and at last report 562 colleges have made the adjustment. (Jaschick, 2006) They offer several arguments for why the change should be made.

The first argument supporting gay rights seems to be the most simplistic. Sexual orientation should be added to anti-discrimination policies to stop and prevent discrimination. Anti-discrimination campaigns are not uncommon and they have created the policies that are currently in place. They stand behind the assertion that it is the responsibility of the institution to protect its students and staff. This side asserts that while no one deserves to be discriminated against in the first place, if discrimination is not prevented it leads to hate speech, and hate speech leads to hate crimes. The way for a college to be proactive is to stop the discrimination.

A second argument is that the University needs to update it policy in order to stay competitive. If they want to appear progressive and concerned with student rights they should change their policy before they are forced to. Both students and parents want to invest in a university that fosters a safe environment and actively deciding to permit or perpetuate discrimination does not convey that. It becomes an issue of what the institution wants to stand for. When discussing a recent decision by Virginia Tech to remove sexual orientation from the policy HRC national field director Seth Kilbourn said, “Virginia Tech needs to decide if it wants to be known as a place of higher learning or lower principles.” (Human, 2003)

Their final argument is directed more specifically at the recent opposition by Christian organizations. They assert that public institutions do not have the responsibility to uphold and promote religious ideals. GLBT staff and students have not decided to go to private religious institutions and demand special treatment. Rather, they have gone to an institution that they as citizens support with taxes. This argument has the fundamental weakness that most state policies do not include sexual orientation and therefore none of the other tax supported state agencies are required to include it in their policies.

Religious Freedom

This status quo argument is one of the strongest offered by the Christian organizations. The Federal Equal Employment Opportunity (FEEO) laws state, “We are an Equal Opportunity Employer and there fore do not discriminate on the basis of race, color, religion, national origin, sex, gender, age, or disability.” (Equal, 2004) This policy is in place for all federal employees. At the state level, the state governments have made their own policies for state employees. Since these policies represent a minimum requirement, the majority of states have based their policy off the federal standard just as the majority of institutions have based theirs off the state. At any level they have the freedom to expand upon the policy, and its affects will trickle down to any policies at a lower level. In this case the institution policies are trickling down into the student organization policies. The argument here is that if there are no federal or state changes, then there is no need for an institutional change.

The next two arguments supporting religious freedom both deal with the first amendment but they are separated by the rights being claimed and the types of trials that they are surfacing in. The first of these is the right to religious freedom. This argument is the basis for the cases where Christian student organizations on campus are being denied funding or RSO status because they have policies that keep homosexual students from being members or leaders of the group. Lawsuits like these have taken place at Southern Illinois University, Ohio State University, and Arizona State University. “Legal scholars see the cases as a conflict between the First Amendment's guarantee of free exercise of religion and its requirement that ‘Congress shall make no law respecting an establishment of religion.’” (Murphy, 2005) Students are saying that forcing them to accept members with different religious views negates the purpose of the organization and restricts their religious freedom. Other student organizations have the right to limit student access and so should they. This argument has had tremendous success in the courts. Southern Illinois was forced to recognize their student group, and several universities that are still waiting for a ruling have been told to recognize their groups in the interim.

These cases are being fought by both the Alliance Defense Fund and the Christian Legal Society (CLS). The ADF is “a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation,” and CLS is a professional association of Christian attorneys. (About ADF, 2006) The second strain of lawsuits that they are filing focus more on the freedom of speech aspect of the first amendment. This argument asserts that tolerance policies that ban negative speech about homosexuality violate the first amendment right to free speech. Faculty have gotten more involved with this argument because of the implications speech bans may have on Academic Freedom. ADF’s Director for Academic Freedom David French says, “The old draconian speech codes were unconstitutional because they enabled university officials to engage in blatant viewpoint discrimination. The new policies make it impossible to punish a student expressing his or her viewpoint simply because someone finds that speech offensive” after an ADF victory that resulted in Penn State altering its speech code policy. (Penn State, 2006) Students are increasingly stepping forward to demand their right to speak out against homosexuality. A lawsuit has recently been brought forward against Georgia Institute of Technology and the hopes are that the precedent of Penn State will start another trend of success.

Significance

These rulings have the potential to impact every aspect of higher education. In the immediate future homosexual students and organizations can be expected to return this issue to the courts. This extends beyond the universities that have already begun this process to every college in the nation. These organizations will be reviewing campus policies in hopes of finding some that are weak or poorly worded so that making a change and claiming a victory will be easy. Both sides of this issue will be actively working to build up legal support. In more general ways, students, staff, and faculty will start including the institution’s stance on this issue when they make decisions about coming here. In this way it is no different than any other issue a college can take a stance on, but just like those other issues, decisions will have to be made about what the institution stands for and who they want to attract.

This issue will also affect higher education well into the future. As alluded to before, even campuses that are not currently facing litigation need to have a close look at their policies and their missions. It only took a few years for the issue of gay marriage to make its way through the nation’s state elections. There is reason to expect this issue to have the same driving power behind it. Universities need to consider how these decisions will affect students beyond extra curricular involvement and free speech areas. By altering campus tolerance policies, institutions may be setting the ground work for a hostile environment where students are turning societal issues into personal attacks. In addition, the campus is the student’s first interaction with their future profession. Universities are setting a standard of expectation that will follow the student to the work place and graduate school. Once again this is an issue of the institution comparing these decisions to their goals for the students.

Aside from the students these lawsuits are setting a standard that is already working its way into campus employment. If the faculty are demanding the right to discriminate then staff may soon follow. If the university has set a standard that allows discrimination, even if that standard is in an RSO, it makes the battle to include sexual orientation on employment policies even harder. It may seem like a slippery slope, but that is how legal precedent is used. For example, in these university lawsuits lawyers were using the recent ruling on the right of Boy Scouts of America to discriminate. If we continue to take this to the next step, campus decisions to exclude sexual orientation in equal employment could affect all state employees. This quickly becomes an issue that deals with all government jobs.

Personal Opinion

Though not intentionally, I may have already given my position on this issue away in the Significance section. I side with HRC and against the decisions made in the majority of these lawsuits. My initial, and often emotional, response is that Christianity does not necessitate speaking out against homosexuality. There are plenty of Christian faiths that tolerate homosexuality and there are even GLBT Christian churches. However, it is also my opinion that the worst possible reaction of a university leader would be to tell students, employees, community members, and peers that they don’t understand their religion.

After counting to ten and maybe some meditation, my opinion is still in full support of HRC and the two different types of cases have two different types of responses. In the first issue of allowing homosexual students to be members of Christian organizations the main thing that I find important is framing. This issue needs to be reframed. They are not Christian organizations. They are Student Organizations. They are not funded by the local churches; they are funded by student fees. Christianity is the interest that brings all of these students together, and as I mentioned before Christianity does not dictate anti-homosexuality. If I as a leader at an institution were faced with this issue, I would like to think that I would handle it similarly to Arizona State. Out of court, they decided to allow the student organization to continue as an RSO provided they, “opened membership to all students, heterosexual and homosexual, who uphold its religious values regarding sexual behavior.” (Murphy, 2005) I think that it is good for students to be involved with organizations that are formed with the basis of religious beliefs. It is great for students to have that kind of support as they make the transitions to independence and adulthood. I don’t want to see these student groups abolished, I want them to function within campus tolerance policies.

The second issue of free speech is the one that truly upsets me. Ruth Malhotra started a lawsuit in March because her university “bans speech that puts down others because of their sexual orientation.” (Simon, 2006) She is not upset because there is no free speech area on her campus. She is not upset because she is prohibited from discussing and debating the current issue of gay marriage. She is upset because she is not allowed to ‘put down others.’ A person’s rights only extend until they infringe on the rights of another, and homosexual students have the right to higher education with out personal attacks on the sexual orientation. Maybe I am nit picking with this particular case, but in my opinion it would be handled better with a student, a counselor, and maybe a diversity trainer. Unfortunately, involvement of organizations like ADF and CLS make that impossible at this point. I do not know the series of events that led up to her decision to pursue litigation but I would hope that the answer would fall somewhere before this point. Regardless, this is the situation that Georgia Institute of Technology is in right now. As a leader of this institution I would once again want to accomplish something out of court. In court I have the power to defend my decisions, but I do not have the power to make the decisions. I would try to work with this student to identify the differences between issue debates or protests and personal attacks. Together we may be able to work out an area or forum where these debates could be held and develop a code of conduct and a set of guidelines for it. Our goal should be to make sure that the guidelines are unbiased and still protect the students.

These are not easy issues to discuss. They are emotionally charged and polarized. It saddens me that they are being addressed through the court systems, but perhaps if enough colleges take heed, they can begin now assessing and justifying their policies so that legal disputes will be unnecessary.

References

ADF: Alliance Defense Fund (2006). About ADF Accessed December 5, 2006. http://alliancedefensefund.org/about/Default.aspx.

ADF: Alliance Defense Fund (2006) ADF Wins First Amendment Lawsuit For Christian Silenced By SUNY College Officials. May 24, 2006. Accessed December 5, 2006. http://alliancedefensefund.org/news/story.aspx?cid=3765.

ADF: Alliance Defense Fund (2006). Penn State Revokes Unconstitutional Speech Codes After ADF Intervention. May 22, 2006. Accessed December 5, 2006. http://alliancedefensefund.org/news/story.aspx?cid=3761.

ADF: Alliance Defense Fund (2006). University Life. Accessed December 5, 2006. http://alliancedefensefund.org/issues/ReligiousFreedom/UniversityLife.aspx.

Cohen, J. (2006). Southern Illinois University is told to recognize group. Chicago Tribune. July 11, 2006 Accessed through The Pew Forum on Religion & Public Life. Religion News December 5, 2006. http://pewforum.org/news/display.php?NewsID=10848.

Equal Employment Opportunity (2004). About Equal Employment Opportunity. April 20, 2004. Accessed December 5, 2006. http://www.eeoc.gov/abouteeo/overview_laws.html.

Human Rights Campaign. (2003). HRC Deplores Virginia Tech’s Move to Omit Sexual Orientation From Anti-Discrimination Policy. March 13, 2003. Accessed December 5, 2006. http://www.hrc.org/Template.cfm?Section=Home&CONTENTID=9879&TEMPLATE=/ContentManagement/ContentDisplay.cfm.

Human Rights Campaign. (2004). About the Human Rights Campaign. Accessed December 5, 2006. http://www.hrc.org/Template.cfm?Section=About_HRC.

Jaschick, S. (2006) Long-fought Win for Gay Rights. Inside Higher Ed. Sept. 18. Accessed December 5, 2006. http://www.insidehighered.com/news/2006/09/18/bias.

Murphy, K. (2005). Student Groups in a Clash of Church and State U. Religion News Service. November 26, 2005 Accessed through The Pew Forum on Religion & Public Life. Religion News December 5, 2006. http://pewforum.org/news/display.php?NewsID=5772.

Press Release (2004). Center for law & religious freedom sues Ohio state university over discriminatory “non-discrimination” policy: Christian Legal Society Chapter at OSU Law School Told to Accept Non-Christians, Practicing Homosexuals as Leaders and Members. March 12, 2004 Released by Christian Legal Society. Accessed December 5, 2006. http://www.clsnet.org/clrfPages/pr_2004-03-12.php.

Simon, S. (2006). Christians Sue for Right Not to Tolerate Policies. Los Angeles Times. April 10, 2006. Accessed through The Pew Forum on Religion & Public Life. Religion News December 5, 2006. http://pewforum.org/news/display.php?NewsID=10330