(WNS) -- The Alliance Defense Fund has launched a nationwide campaign to convince state schools to change policies that restrict students' First Amendment rights.
Its strategy starts with persuasion but could culminate in lawsuits. The organization of Christian lawyers expects at least a few cases to end up in federal court, which could encourage the nation's highest court to wade into the fray.
"The Supreme Court really needs to step in and clarify for universities that they can't select particular views to censor," said Kevin Theriot, ADF senior counsel.
Theriot and his team have been working on the campaign for about a year, but the group's failure to convince the Supreme Court to hear what many believed would be a seminal case for religious liberty on campus helped bring urgency to the project.
On March 19, the Supreme Court declined to hear ADX v. Reed, a case involving a Christian sorority and fraternity at San Diego State University. The school told the groups they couldn't require leaders to sign a commitment of faith, and the 9th U.S. Circuit Court of Appeals agreed. In issuing its ruling, the 9th Circuit relied heavily on a 2010 Supreme Court ruling in CLS v. Martinez, in which the Justices said a state school could create an "all-comers" policy requiring all groups to open membership and leadership to all students.
But the court did not rule on whether an "all-comers" policy could have exceptions, an issue the ADF and other religious liberty advocates hoped the high court would clear up with ADX v. Reed. The court's decision not to hear the case does not mean it agreed with the lower court's ruling. It only means other cases took precedent on the docket.
The ADF hopes to persuade the court to take up the issue in the future by litigating several similar cases through federal courts around the country. Lawyers from the ADF and The Becket Fund for Religious Liberty are using the same tactic to challenge the contraception mandate included in the new health care law. Legal experts say the high court is more likely to take a case if circuit courts issue contradictory opinions on similar issues.
And the lawyers have plenty of cases to choose from. The CLS v. Martinez ruling has prompted several schools, including Vanderbilt University, in Nashville, Tenn., to adopt what they describe as "all-comers" policies, although administrators apply them selectively. Such discrimination is unconstitutional, Theriot said.
"It's really targeted toward Christian groups, no doubt about it," he said. "They are the only ones who want to select leaders on the basis of belief. These policies are a poorly disguised attempt to discriminate against religious groups."
Although the Vanderbilt case has received a lot of attention in recent months, it won't be on the ADF's list of offenders. As a private school, Vanderbilt is free to adopt policies that restrict constitutionally protected religious liberties. But plenty of state schools have scrambled to follow Vanderbilt's lead.
ADF lawyers have identified more than 160 public universities with unconstitutional policies. The team sent letters to 40 schools in 23 states last week in its first volley of challenges. Seventeen of the schools have policies that restrict the freedom of campus Christian groups to select members or leaders. The rest have policies that violate free speech, restrict protest activities to limited areas of campus or exclude religious groups from access to student fee funding.
The group saw its first victory shortly after mailing the first batch of letters. Elizabeth City State University, in North Carolina, agreed to change its policy limiting student expression to a small wooded area on campus. Courts have come down on the side of protestors in several similar cases in the last year.
The Alliance Defense Fund is just one organization pursuing campus religious liberty cases. Both the Foundation for Individual Liberty in Education (FIRE) and the Christian Legal Society regularly challenge unconstitutional policies. Individual groups facing discrimination on campus also fight attempts by school administrators to stifle their rights. The next case involving a campus Christian group could come from the State University of New York at Buffalo, where the student senate revoked official recognition for InterVarsity Christian Fellowship over violations of the school's nondiscrimination policy.
Gregory Jao, InterVarsity's national field director for the northeast region, said the group intended to follow the appeals process. But other InterVarsity leaders previously acknowledged their willingness to take the case to court if appeals and talks with administrators fail.
c. 2012 WORLD News Service. Used with permission.
Publication date: May 14, 2012