Academic journal article Harvard Law Review

Leaving Religious Students Speechless: Public University Antidiscrimination Policies and Religious Student Organizations

Academic journal article Harvard Law Review

Leaving Religious Students Speechless: Public University Antidiscrimination Policies and Religious Student Organizations

Article excerpt

In September 2003, the University of North Carolina at Chapel Hill (UNC-CH) withdrew official recognition of the Alpha Iota Omega Christian fraternity (AIO). (1) The religious student group had refused to sign the University's mandatory antidiscrimination statement, which requires that "membership and participation in your organization must be open without regard to age, race, color, national origin, religion, disability, veteran status, or sexual orientation." (2) AIO's self-defined purpose is "to uphold the Great Commission of Jesus Christ ... through evangelism and mentorship." (3) To further this goal, AIO's bylaws limit membership to those who subscribe to its "statement of faith, tenets of belief, and Christian standards of conduct," including a "code of personal behavior." (4) From AIO's perspective, these core principles are in direct conflict with the University's insistence that the club ignore "religion" and "sexual orientation" as membership criteria. (5)

AIO is not the first religious organization to be threatened with derecognition for refusing to adhere to university antidiscrimination policies. Not only has UNC-CH itself previously threatened similar derecognition of the InterVarsity Christian Fellowship, (6) but many public universities around the country also have either threatened or actually derecognized religious student groups for their unwillingness to sign religion or sexual orientation antidiscrimination policies. (7) Only a year ago, it could be said that "[i]n each case thus far, the university has retreated in response to public outcry," (8) but that is no longer true. Several universities have joined UNC-CH in resolutely insisting that "every student organization ... accept the nondiscrimination policy in order to be recognized" (9)--even in the face of lawsuits. (10)

This Note argues that applying antidiscrimination policies that directly conflict with the core expressive values of religious student groups strikes at the heart of the freedom of association protected by the First Amendment. Part I discusses how the policies underlying the freedom of association are especially salient in the context of student organizations and argues that, despite some ambiguity regarding the definitional limits of expressive association doctrine, religious student organizations lie well within the doctrine's protective boundaries. Part II examines the balance between a public university's compelling interest in pursuing its antidiscrimination policy against its students' interest in associating to express a religious message, with a special focus on the legitimate state interests compelling the antidiscrimination policy. Part III considers religion and sexual orientation antidiscrimination policies as applied to religious student organizations through the lens of the designated public forum analysis and argues that application of such policies to expressive religious student clubs is not viewpoint-neutral because religion is singled out for dissimilar treatment. Finally, Part IV addresses one response to this charge of nonneutrality--the attempt by universities to distinguish religion-as-status from religion-as-belief--and asserts that this unnatural bifurcation is neither meaningful nor desirable in the context of constitutionally protected expression. This Note concludes that religion and sexual orientation antidiscrimination requirements are unconstitutional as applied to religious student groups whose expressive purpose is undermined by such enforcement, whether analyzed under expressive association, unconstitutional conditions, or a designated public forum analysis.

I. RELIGIOUS STUDENT GROUPS AS EXPRESSIVE ASSOCIATIONS

A. The Significance of the University Context

The Supreme Court has long recognized that "[a]n individual's freedom to speak ... could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. …

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