America's First Liberty and Free Association on Public University Campuses
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RELIGION & LAW
America’s First Liberty and Free Association
on Public University Campuses
“…[t]he vigilant protection of constitutional freedoms is nowhere Legal Society (CLS) alleging the mem-
bership and leadership policies of the
more vital than in the community of American schools…. society preclude active homosexuals
The college classroom, with its surrounding environs, is peculiarly from becoming voting members or offi-
cers which resulted in a violation of the
the “marketplace of ideas,’ ”.1 nondiscrimination statement and poli-
cies of the university.3
By Mark A. Wohlander sity policies regarding mandatory diver- In response to the complaint, the dean
sity training for students, and 5) of the law school reviewed CLS’s state-
F
OR YEARS, administrators at university policies restricting the use of ment of faith which specifies, among
public universities took pride mandatory student fees. other things, a belief in the sinfulness of
in proclaiming their individual “all acts of sexual conduct outside of
institutions as being places NONDISCRIMINATION STATEMENTS God’s design for marriage between one
where freedom of speech both flour- Standing alone, it would seem that man and one woman, which acts include
ished and contributed to the free university nondiscrimination statements fornication, adultery, and homosexual
marketplace of ideas. Today, because of would be exempt from challenge. This conduct.” The dean found the statement
the diversity of our public universities, is especially true in view of nondiscrim- of faith to be in violation of SIU’s
administrators at many of those same ination statements mandated in the areas nondiscrimination policies. As a result,
institutions have now found themselves of employment and benefits available at the dean revoked CLS’s status as a stu-
pressured to adopt policies which pro- the public university. However, in many dent organization. Revocation of its
hibit any speech which might be other areas of university life, nondis- status as a student organization resulted
deemed offensive. crimination statements are relied upon in CLS’s loss of numerous benefits
Unfortunately, while many speech by university administrators to justify including “access to the law school List-
codes and restrictions at public universi- unconstitutional restrictions on the free Serve (the law school’s database of
ties were likely adopted and intended speech rights of university students. e-mail addresses), permission to post
for a good purpose, an unintended con- At first glance, as written, most information on law school bulletin
sequence has been to literally confuse nondiscrimination statements appear rel- boards, an appearance on lists of official
the boundaries of what is and is not atively harmless. One such example is student organizations in law school pub-
acceptable speech on public university the 2005 nondiscrimination policy at the lications and on its website, the ability to
campuses. Another unfortunate result is Southern Illinois University (SIU) and reserve conference rooms and meeting
that these policies have also placed its school of law which stated the uni- and storage space, a faculty advisor, and
many college administrators in the versity would “provide equal law school money.”4
unenviable position of being named as employment and education opportuni- In challenging SIU’s revocation of its
defendants for violating the free speech ties for all qualified persons without status as a student organization, mem-
rights of the very students they had regard to race, color, religion, sex, bers of CLS filed suit and argued,
intended to protect. national origin, age, disability, status as among other things, that the university’s
The crossroad where speech codes a disabled veteran of the Vietnam era, nondiscrimination policies violated their
and restrictions often clash with free sexual orientation, or marital status.”2 First Amendment right to expressive
speech is when the restrictions infringe As a result of the employment nondis- association. Although the district court
on the religious liberty and free associa- crimination policy adopted by the denied CLS’s motion for a preliminary
tion rights of university students The university, the Board of Trustees estab- injunction, the Court of Appeals
policies most often found to be uncon- lished a second policy which provided reversed and found that enforcement of
stitutional, especially in cases involving that “[n]o student constituency body or SIU’s nondiscrimination policies which
the religious liberty of university stu- recognized student organization shall be resulted in the revocation of CLS’s sta-
dents, usually fall within five separate authorized unless it adheres to all appro- tus as a student organization “violated
categories, including 1) university priate federal or state laws concerning its First Amendment freedoms.”5
nondiscrimination statements, 2) univer- nondiscrimination and equal opportu- An earlier and similar challenge to a
sity policies regarding student speech, nity.” Relying on SIU’s nondiscrimination statement involved
3) university policies regarding the use nondiscrimination statement, someone the State College Area School District.6
of speech zones on campus, 4) univer- filed a complaint against the Christian Although the case involved a school
January 2009 Bench & Bar 19district, the Third Circuit Court of intimidating, hostile or offensive envi- homosexuality is a sin. Plaintiffs further
Appeals provided an excellent discussion ronment.”9 The policy provided that any believe that they have a right to speak
on the scope of a student’s right to free- “harassment” would be a violation and out about the sinful nature and harmful
dom of expression while in school in could result in punishment “including effects of homosexuality. Plaintiffs also
light of the Supreme Court’s decision in but not limited to warning, exclusion, feel compelled by their religion to speak
Tinker v. Des Moines Independent Com- suspension, expulsion, transfer, termina- out on other topics, especially moral
munity School District.7 In Tinker, the tion, discharge…, training, education, or issues.”11 The district court dismissed
Supreme Court held that before the regu- counseling.”10 the free speech claims of the plaintiffs
lation of student speech was permissible and held, “Harassment has never been
only “when the speech would substan- ... if there ever was a bright considered to be protected activity
tially disrupt or interfere with the work of line rule regulating free under the First Amendment. In fact, the
the school or the rights of other students. speech zones on university harassment prohibited under the Policy
As subsequent federal cases have made already is unlawful. The Policy is a tool
clear, Tinker requires a specific and sig- campuses, that bright line which gives SCASD the ability to take
nificant fear of disruption, not just some has been forever blurred as action itself against harassment which
remote apprehension of disturbance.”8 university administrators may subject it to civil liability.”
In Saxe v. State College Area School In reversing the district court, the
District, the school board implemented
have struggled to promulgate Third Circuit explicitly rejected the dis-
an anti-harassment policy which stated, time, place, and manner trict court’s holding and held that the
“[h]arassment means verbal or physical regulations which will pass policy “appears to cover substantially
conduct based on one’s actual or per- constitutional scrutiny. more speech than could be prohibited
ceived race, religion, color, national under Tinker’s substantial disruption
origin, gender, sexual orientation, dis- In their complaint challenging the test. Accordingly, we hold that the Pol-
ability, or other personal characteristics, school district policy, two students icy is unconstitutionally overbroad.”12
and which has the purpose or effect of argued that they “openly and sincerely It would appear that for the most
substantially interfering with a student’s identify themselves as Christians. They part, unless a university nondiscrimina-
educational performance or creating an believe, and their religion teaches, that tion policy is narrowly drafted to meet
20 Bench & Bar January 2009Tinker’s “substantial disruption” test, the university campuses, in the same deci- versity, at least for its students, pos-
policy will be subject to court challenge sion the Court went on to affirm the right sesses many characteristics of a public
and will be found to be unconstitutional. of the University to establish reasonable forum.”16 Therefore, when university
time, place and manner regulations. The administrators attempt to restrict free
SPEECH ZONES Supreme Court specifically affirmed the speech to so-called free speech zones,
Many universities began establishing validity of cases which “recognize a uni- university regulations must be carefully
so-called “free speech zones” in versity’s right to exclude even First drafted and will only be upheld if they
response to campus protests in the 60’s Amendment activities that violate rea- “are content neutral, are narrowly tai-
and 70’s against the Vietnam War. Since sonable campus rules or substantially lored to serve a significant government
then, University administrators have interfere with the opportunity of other interest, and leave open ample alterna-
faced the troubling question of how to students to obtain an education.” tive channels of communication.”17
find a suitable balance between ensuring At first blush, it would appear the In a post Widmar decision,18 a pro-
the rights of students to engage in free Supreme Court’s decision in Widmar life student organization at the
speech, yet provide students with a safe had provided university administrators University of Houston requested permis-
university environment. It has become with a bright line rule for them to fol- sion to display their “Justice for All
even more challenging since the low when promulgating rules regarding Exhibit,” an outdoor photographic edu-
Supreme Court’s decision in Widmar v. free speech zones and the protection of cational exhibit which was intended to
Vincent,13 which involved a challenge to the religious liberty of university stu- “promote ‘justice and the right to life for
the policies of the University of Mis- dents. However, if there ever was a the unborn, the disabled, the infirm, the
souri at Kansas which infringed on the bright line rule regulating free speech aged, and all vulnerable people; [to] help
free exercise of the religious rights of zones on university campuses, that women and men in crisis pregnancies
members of a religious student group. bright line has been forever blurred as find support services for themselves and
From 1973 until 1977, Cornerstone, a university administrators have struggled for their unborn children; [to promote]
registered religious group at the Univer- to promulgate time, place, and manner programs designed to assist in abortion
sity of Missouri at Kansas, had received regulations which will pass constitu- recovery needs; [and to promote] discus-
permission to conduct its meetings in tional scrutiny. sion of related bio-ethical issues like
University facilities. However, in 1997, Traditionally, time, place, and man- stem cell research, in vitro-fertilization,
the group was informed that it could no ner regulations which restrict free RU 486, and ‘emergency contracep-
longer meet in University buildings as a speech “on governmental property that tion.’”19 University administrators
result of an apparently overlooked 1972 has been traditionally open to the public reviewed the application and deemed the
policy adopted by the University Board for expressive activity or has been exhibit to be potentially disruptive. As a
of Curators which prohibited the use of expressly dedicated by the government result the university’s dean determined
University buildings or grounds “for to speech activity is subject to strict the exhibit had to be relegated to one of
purposes of religious worship or reli- scrutiny.”15 As the Supreme Court has two more remote sites that he suggested
gious teaching.”14 As a result of the stated, the “campus of the public uni- for “potentially disruptive” events.20
prohibition, eleven student members of
Cornerstone filed suit alleging the pol-
icy was discriminatory and violated
their rights to the free exercise of reli-
gion, equal protection, and freedom of
speech under the First and Fourteenth
Amendments to the Constitution of the
United States.
In Widmar, the Supreme Court
rejected the University’s policy and
stated that while “[t]he University’s insti-
tutional mission, which it describes as
providing a “secular education” to its
students, the policy does not exempt its
actions from constitutional scrutiny. With
respect to persons entitled to be there,
our cases leave no doubt that the First
Amendment rights of speech and associa-
tion extend to the campuses of state
universities.” Although it would appear
that the Supreme Court had established
an unqualified right to free speech on
January 2009 Bench & Bar 21In striking down the policy, the dis- of the university code. Although the DeJohn decision is lim-
trict court district court relied upon the It appears the courts will review ited to public universities in Delaware,
Supreme Court’s decision in Forsyth speech codes under the same analysis Pennsylvania and New Jersey, the deci-
County which held that, “the success of applied to university nondiscrimination sion is clearly an affirmation of
a facial challenge on the grounds that an policies. Recently, in DeJohn v. Temple Supreme Court jurisprudence and
ordinance delegates overly broad discre- University,23 a Christian university stu- should provide both a roadmap, and a
tion to the decisionmaker rests not on dent challenged Temple’s speech code warning to other public university
whether the administrator has exercised which stated in pertinent part, “all forms administrators inclined to defend clearly
his discretion in a content-based manner, of sexual harassment are prohibited, unconstitutional speech codes.
but whether there is anything in the ordi- including . . . expressive, visual, or phys-
nance preventing him from doing so.”21 ical conduct of a sexual or STUDENT FEES
Another speech zone case which gender-motivated nature, when . . . (c) Another controversial free speech
bears watching involves a lawsuit filed such conduct has the purpose or effect of concern involves the distribution of stu-
on September 29, 2008, against Yuba unreasonably interfering with an individ- dent fees to religious campus groups.
Community College District officials. ual’s work, educational performance, or Most universities have adopted policies
The lawsuit was filed on behalf of a status; or (d) such conduct has the pur- which restrict the distribution of funds
Christian student who was attempting to pose or effect of creating an intimidating, from student fees to only those campus
“share a Christian message with fellow hostile, or offensive environment.” groups which agree to affirm university
students, engaging them through tracts, nondiscrimination policies. More often
signs, and conversation.”22 The student “the success of a facial than not, student religious groups are
was threatened with arrest and expul- challenge on the grounds that either denied recognition as a student
sion if he did not obtain permission in an ordinance delegates overly group, or the religious group is denied
advance and comply with university funds from mandatory student fees
policy which limited speech to two
broad discretion to the because the religious group is unable to
hours per week and required students to decisionmaker rests not on accept certain aspects of the university
obtain written permission two weeks in whether the administrator has nondiscrimination statement.
advance. exercised his discretion in a The Supreme Court has finally
resolved the issue in its decision in
SPEECH CODES content-based manner, but Rosenberger v. University of Virginia.26
University speech codes are often as whether there is anything in In Rosenberger, Wide Awake Publica-
problematic as university nondiscrimi- the ordinance preventing him tions, a religious student group, was
nation statements. This is especially true formed “to publish a magazine of philo-
from doing so.”21
when university speech codes are sophical and religious expression, to
accompanied by policies that punish At the time DeJohn challenged Tem- facilitate discussion which fosters an
speech which is held to be in violation ple’s speech code, he was involved in atmosphere of sensitivity to and toler-
writing his master’s thesis which con- ance of Christian viewpoints,” and “to
Mark A. Wohlander cerned women in combat and women in provide a unifying focus for Christians
received a B.A. the military. Because of Temple’s of multicultural backgrounds.”27
from Cleveland speech code, Dejohn was “concerned In 1990, Wide Awake Publications
State University in
1981 and earned a
that discussing his social, cultural, polit- (WAP), a registered religious student
J.D. from the ical, and/or religious views regarding group at the University of Virginia,
Cleveland-Marshall these issues might be sanctionable by applied for payment of printing costs for
College of Law in the University. Thus, DeJohn contends its publication. Although University of
1983. Mr. Woh-
lander currently
that the policy had a chilling effect on Virginia policy authorized the payment
practices law in his ability to exercise his constitution- of outside contractors for the printing
Lexington at Wallingford Law, PSC. From ally protected rights.”24 costs of a variety of student publica-
1990 -2007, he served as an Assistant In upholding the district court’s grant tions, it withheld any authorization for
United States Attorney in the Criminal
Division of the United States Attorney’s
of partial summary judgment on payments on behalf of petitioners for
Office for the Eastern District of Ken- DeJohn’s challenge to the university the sole reason that their student paper
tucky in Lexington. Prior to that, Mr. speech code, the Third Circuit again “primarily promotes or manifests a par-
Wohlander worked as a Special Agent for relied on the Supreme Court’s decision ticular belief in or about a deity or an
the Federal Bureau of Investigation. In
addition to working at Wallingford Law,
in Tinker, and its earlier decision in Saxe. ultimate reality.”28
Mr. Wohlander currently volunteers legal In its decision, the Dejohn court evalu- The University of Virginia attempted
services through his association with the ated Temple’s policy and concluded “that to justify its denial of funds to Wide
Alliance Defense Fund, a non-profit the Policy is facially overbroad” and Awake Publications based on the First
organization dedicated to defending reli-
gious liberty.
affirmed the district court’s injunctive Amendment’s prohibition against the
relief in favor of DeJohn.25 state establishment of religion. The
22 Bench & Bar January 2009Supreme Court struck down the policy consistently held, university policies 16. Widmar, 454 U.S. at 267 n. 5.
and held that notwithstanding the Estab- which implicate the First Amendment 17. Perry Educ. Ass’n v. Perry Local
lishment Clause “it was not necessary free speech rights of its students to be Educators Ass’n, 460 U.S. 37, 45
for the University to deny eligibility to found constitutional, a university policy (1983).
student publications because of their must be both narrowly drawn and view- 18. Pro-Life Cougars v. University of
viewpoint. The neutrality commanded of point neutral. Houston, 259 F. Supp. 2d 575 (S.D.
the State by the separate Clauses of the Although it is clear that not all Tx. March 2003).
First Amendment was compromised by speech codes at public universities will 19. Id. at
the University’s course of action. The be found to violate the free speech, reli- 20. Id. at 578.
viewpoint discrimination inherent in the gious liberty and free association rights 21. Forsyth County v. Nationalist Move-
University’s regulation required public of its students, it would be wise for uni- ment, 505 U.S. 123,(1992); see also
officials to scan and interpret student versity administrators to conduct an Southeastern Promotions, LTD v.
publications to discern their underlying inventory of those speech policies Conrad, 420 U.S. 546, (1975) (not-
philosophic assumptions respecting reli- already implemented on their campuses ing that “the danger of censorship
gious theory and belief. That course of to ensure that the policies will sustain a and of abridgment of our precious
action was a denial of the right of free constitutional challenge.30 First Amendment freedoms is too
speech and would risk fostering a perva- great where officials have unbridled
sive bias or hostility to religion, which ENDNOTES discretion over a forum’s use”).
could undermine the very neutrality the 1. Healy v. James, 408 U.S. 169, 180 22. “Free Speech on Tuesday and
Establishment Clause requires. There is (1972). Thursday” – California Catholic
no Establishment Clause violation in the 2. Christian Legal Soc’y v. Walker, Daily, September 30, 2008.
University’s honoring its duties under 453 F.3d 853, (7th Cir. 2006). 23. Dejohn v. Temple University, 537
the Free Speech Clause.” 3. Id. f.3d 301 (3rd Cir. 2008).
After Rosenberger, the distribution of 4. Id. 24. Id. at 305.
mandatory student fees continues to be 5. Id. 25. Id. at 320.
scrutinized by the courts, especially 6. Saxe v. State College Area School 26. Rosenberger v. Rector and Visitors
when a university policy fails to allocate District, 240 F.3d. 200 (3rd Cir. of the University of Virginia, 515
mandatory student fees in a viewpoint- 2001). U.S. 819 (1995).
neutral manner. When university 7. Tinker v. Des Moines Independent 27. Id.
policies provide unchecked discretion to Community School District, 393 28. Id. at 822, 823.
student government committees to make U.S. 503 (1969). 29. Southworth v. Board of Regents of
unbridled decisions regarding the distri- 8. Saxe at 204. the University of Wisconsin System,
bution of mandatory student fees, the 9. Id. 376 F.3d 757 (7th Cir. 2004).
policies will almost always be held to 10. Id. 30. For additional cases and guidance
be unconstitutional.29 11. Id. visit the Alliance Defense Fund’s
12. Id. at 217. (ADF) Center for Academic Free-
MANDATORY DIVERSITY TRAINING 13. Widmar v. Vincent, 454 U.S. 263 dom website at www.center
Recently, mandatory diversity train- (1981). foracademicfreedom.org, or The
ing has become a topic of concern for 14. Id. Foundation for Individual Rights in
incoming freshman at a handful of uni- 15. United States v. Kokinda, 497 U.S. Education (FIRE) website at
versities. Although the courts have not 720 (1990). http://www.thefire.org.
yet provided guidance regarding the
constitutionality of mandatory diversity Forensic Psychology Services
training at public universities, it is hard
to imagine that the courts would uphold Harwell F. Smith Ph.D.
mandatory diversity training, unless the • CRIMINAL R ESPONSIBILITY
university could show a compelling gov- • COMPETENCE TO STAND TRIAL
ernmental interest in requiring • PERSONAL INJURY EVALUATIONS
• I NDEPENDENT PSYCHOLOGICAL EVALUATION
mandatory diversity training as a
• DISABILITY EVALUATIONS
requirement to attend a public university. • EXPERT OPINION OFFERED TO DEFENSE OR PROSECUTION
CONCLUSION 29 years experience.
For the most part, the prevailing case Over 45 court appearances.
law provides substantial guidance for Special interest in criminal cases involving mental condition at the
university administrators interested in time of the incident — performed more than 500 of these evaluations.
ensuring that university speech policies Board Certified
859.276.1836 • 2201 Romany Road • Lexington, KY 40503 Clinical Psychologist
are constitutional. As the courts have
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