When federal appeals courts declare wholly inconsistent views on an important issue of constitutional law or policy, the Supreme Court usually steps in to resolve the conflict and establish a uniform national standard. Occasionally, however, the justices decline to intervene, leaving in place incompatible rulings. Confusion and uncertainty inevitably follow.
That is what has happened with regard to an issue of mounting importance to higher education—whether colleges may compel a student organization to abide by antidiscrimination rules when that organization’s religious views and values dictate otherwise. Institutions fervently hoped for the Supreme Court to resolve two contradictory lower-court rulings dealing with that issue, only to learn on the final day of the 2008-9 term that such relief had been denied. Because no justice ventured any thoughts on the issue, one can only speculate as to why the customary intervention did not occur.
The federal courts have debated the conflict between anti-bias policies and conservative student organizations for nearly a decade. Earlier rulings that involved secondary schools revealed a lack of consensus among federal circuits, and a split with regard to public colleges seemed inevitable. Then, around three or four years ago, two portentous cases reached the courts within months of each other, with nearly identical facts, after campus chapters of the Christian Legal Society sought recognition at the law school of Southern Illinois University at Carbondale and at the University of California’s Hastings College of the Law.
Both institutions denied the requests because the group’s membership rules—which include limitations on members’ religious affiliation and sexual orientation—conflicted substantially with the universities’ antidiscrimination policies. The society took both cases to federal court, claiming a denial of several First Amendment rights and of due process. Both district judges ruled in the institutions’ favor, rejecting the society’s challenges.
But disharmony surfaced at the appellate level. The U.S. Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, reversed the Southern Illinois ruling, mainly on the basis of what the court felt was a viable free-speech claim. The activity in which such student groups engaged, the court majority ruled, seemed clearly to be “expressive association” of the type the Supreme Court had cited in a case involving a gay applicant for a Boy Scout leadership role. To compel the society to agree to accept members with an uncongenial sexual orientation or disparate faiths would inhibit or abridge such a First Amendment liberty, the Seventh Circuit court ruled.
The U.S. Court of Appeals for the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) came to a different conclusion. That court had earlier upheld a Washington high school’s anti-bias policy as applied to a student group (named Truth) that espoused values and views comparable to those of the Christian Legal Society. When the Hastings case came before the court, the Truth judgment seemed to compel a decision in favor of the law school.
The stage was thus set for an expected Supreme Court intervention. Meanwhile, the issue had emerged on federal dockets elsewhere. District-court judges in Florida and Montana had ruled against Christian student groups’ challenges to anti-bias policies. In late October, the 11th Circuit’s Court of Appeals dismissed the Florida case, noting that the University of Florida had altered its rules to permit religiously conservative groups to register and share the benefits of recognition so long as they agreed to observe the nondiscrimination policy. Under the new provision, “a student organization whose purpose is primarily religious will not be denied registration … on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization.” That modification, in the appeals court’s view, made the case moot. The Alliance Defense Fund, which has represented student challengers in many of these cases, has either filed or anticipated similar litigation on other campuses across the country.
Perhaps most intriguing has been the highly visible settlement of several such suits by colleges that are apparently reluctant to risk litigation. Notably, the University of Toledo and Arizona State University agreed to accommodate the Christian Legal Society and its membership restrictions—although it should be noted that Arizona State signed such an agreement well before the Ninth Circuit (which includes Arizona) had declared its position even with regard to high schools, much less colleges. An indeterminate number of other institutions, notably Texas A&M University, have since received requests for recognition from conservative Christian-student groups.
Despite such a stark and inescapable conflict, the Supreme Court refused review, specifically of the Ninth Circuit’s high-school (Truth) case, without comment. That state of affairs, highly unusual in constitutional litigation, leaves administrators and lawyers with little guidance, unless they happen to be in the Seventh Circuit or the Ninth Circuit. If recognition matters to student organizations—and typically it opens the doors to financial support and use of campus facilities, among other benefits and perquisites—and if the institution is committed to barring discrimination by those groups it recognizes, confronting the issue is unavoidable. Having to resolve such disputes without definitive legal guidance makes judgments by academic officials unusually hazardous.
The courts that have dealt with the issue, however, have offered a few helpful hints about what colleges should do and what they should avoid:
- Any campus anti-bias policies should focus upon conduct or behavior rather than expression. It should be clear that the proscribed event is the act of refusing to sign or commit to a nondiscrimination policy, rather than any publicly stated views of, or positions taken by, the organization. Speech is protected by the First Amendment, even when the message may disparage or devalue equal opportunity. Conduct is protected to a lesser degree and is more easily regulated on content-neutral grounds.
- Any such regulations must be evenhanded in both their provisions and their application, binding as much upon liberal or apolitical student groups as on conservative organizations. The Christian Legal Society must be treated no differently than a homogeneous assembly of Jewish or Episcopal students. The Seventh Circuit expressed concern that Southern Illinois may have been less than consistent in applying its rules, raising a higher bar for the society than for other groups.
- Colleges should ask whether the anti-bias policy requires or restricts more activity than the underlying rationale warrants. The Florida district judge was favorably impressed, for example, by the University of Florida’s willingness to recognize student groups that restricted leadership positions to members of the founding faith or sect. Its anti-bias policy applied only to conditions on membership as such, leaving conservative groups free, in the judge’s words, “to consider the religious views of individuals who are candidates for leadership positions.” Some institutions might deem Florida’s accommodation incompatible with their equal-opportunity commitments, while others might feel they could be even more flexible without thwarting vital goals.
- More broadly, the potential array of less-restrictive options merits closer scrutiny in so volatile an arena. One approach that might seem extreme suggests the value of creative thinking: An institution’s equal-opportunity needs might be met by simply informing every student group of the applicable nondiscrimination rules, and perhaps requiring an acknowledgment as a condition of recognition. If, but only if, an aggrieved student filed a charge of discriminatory action would the organization’s status be at risk. Of course, such an approach would not find universal favor; it would place a heavy burden on the rare and bold student willing to step up and fight the system, and it might also appear to abdicate institutional responsibility for ensuring equal opportunity. But the key point is that colleges can and should be more creative in developing less-restrictive approaches.
- Any institution that imposes such conditions or restrictions on student groups must not only consider and invoke applicable federal or state laws but also embrace any institutional interests that warrant such action. In the preamble of an anti-bias policy, it should specifically cite a special commitment to, say, equality without regard to sexual orientation. That commitment should play a vital and visible role in the event of a challenge in court or the political arena. Every court that has ruled in favor of the institution against student groups’ challenges has emphasized the relevance of such interests and noted their applicability to the activity that is the focus of the challenge. Even the one court that ruled to the contrary—the Seventh Circuit regarding Southern Illinois—did not demean those interests; it simply found them outweighed by countervailing free-speech claims.
- Procedural matters deserve special care. The anti-bias policy must be clear, and its communication should be beyond doubt. The institution’s governing board should review and adopt the regulations, and the president should announce them. A campus official should regularly assess compliance with the regulations and report findings to the senior administration. Administrators should also review the policy periodically in light of changing legal parameters and potentially applicable court decisions, even if they are not geographically controlling. The board should approve any modifications, and those changes should be widely disseminated, especially to student groups most directly affected by them.
Such guidelines may be the best we can summon for quite some time. A Supreme Court that did not have even the four votes needed to take up the issue seems unlikely to experience a change of heart in the near future. Meanwhile, a few other circuits will probably enter the fray and side either with the Seventh or the Ninth. But on many campuses, conscientious administrators and lawyers must simply exercise their best judgment in a legal vacuum. Fortunately, even if the courts often have the last word, they do not always have the only one.
