Institutions of higher education have struggled with the concept of "ordered liberty" seemingly even longer than the Supreme Court.' Many recognize freedoms of speech, expression, and association as essential to the health and function of a democratic polity and society. In the educational context, however, few concur on how best to balance the need for an environment of tolerance and mutual respect with individual students' rights and freedoms. While constitutional jurisprudence provides some guidelines for state universities,2 private schools are largely given a free hand in their efforts to balance diversity with civility. The result of the modern college's balancing act, particularly since the advent of political correctness, often manifests itself in speech codes; antiharassment regulations; and, in particular, "nondiscrimination policies."
Understandable concerns animate proponents of nondiscrimination policies. While the school administration serves to provide an environment conducive to both free inquiry and expression, advocates say such legitimate interests are undermined when students manifest bigotry and discrimination to create an atmosphere of exclusion and intolerance. While schools cannot regulate private attitudes, they certainly can and should limit speech or conduct which acts to defeat their respective educational missions. From there, it is almost a step back to affirm the schools' right to condition students' access to resources-such as organizational funds or use of the schools' facilities-via neutral, across-the-board nondiscrimination policies.
But who is to regulate the application of such policies? Can they be used to defeat legitimate student freedoms or expectations? Critics see in such regulations the shadowy outlines of a mainstream, politically correct orthodoxy, defined by a cultural agenda, which serves to restrict fundamental liberties and silence unpopular voices. A recent controversy highlights the issues at stake.
At Tufts University on April 13, 2000, the Tufts Community Union Judiciary (TCUJ) "de-recognized" the Tufts Christian Fellowship (TCF) for refusing to allow a non-heterosexual student who considered homosexual relationships biblically permissible to run for a student leadership position within the group." The decision was based on a perceived violation of the school's nondiscrimination policies.6 The case was eventually reversed on procedural grounds, but the circumstances leading up to it, and the subsequent controversy which embroiled the campus and much of academia, bring into sharp relief one of the critical issues in higher education today-the clash between religious freedom and nondiscrimination policies in the private educational institutions of modern America.
The Tufts incident is not an isolated case. In the past few years, no fewer than six other colleges and universities have confronted this issue.' Using the events at Tufts as a case study, this article will explore the implications of nondiscrimination policies as they are applied to student religious groups at private universities. I will argue that, while nondiscrimination policies may be promulgated simply to promote more inclusive student organizations, their inclusion of specified clauses facially discriminate against and legislate organized religious traditions and beliefs. In addition, private universities can apply and have applied them to restrict religious students' freedoms of speech and expressive association; to dictate the organization, running, and membership of religious groups; and to punish students who adhere to their faith in the face of school policies.
. Furthermore, this article will argue that private schools essentially should be allowed to follow the dictates of their charters and policies without government interference, but nondiscrimination policies-under the influence of the mainstream, politically correct campus orthodoxy of the day-- have provided an indirect "backdoor" method for universities to constrain religious freedoms in a way that defeats the reasonable ex ante expectations of their students. …