Wednesday, September 19, 2007

Academic Media Suggests CLS is Prevailing in Campaign Against Discriminatory University Student Organization Rules

A September 17th article by by Scott Jaschlik of Inside Higher Ed ( has as its context a Second Circuit decision affirming that a state-run college may constitutionally put the kibosh on Greeks on campus. But it is the subtext of the article that we found intruiging - that Christian Legal Society and similar religious liberty advocacy groups are making headway with the academy in their campaign to establish that prohibiting a religious student group from "discriminating" in membership on the basis of religion is in fact religious discrimination.

For some reason, Jaschlik closely links the issues in Chi Iota Colony v. City University of New York to the ongoing debate over whether universities may condition registration for student organizations -and the benefits that accompany same - on agreeing not to restrict membership on the basis of religion, creed and/or sexual orientation. See, e.g., Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006); Christian Legal Society v. Kane, 2006 WL 997217 (N.D. Cal. May 19, 2006). One wonders why, as the cases have little resemblance; Chi Iota involved a fraternity's claim of intimate association as against a gender discrimination policy, not expressive association involving the highly protected status of religious belief and association. But "Public colleges' anti-bias policies have been taking a beating in the courts in recent years," Jaschlik writes. "Many lawyers who advise colleges... have urged colleges to recognize that the force of their anti-bias policies has been severely weakened." The "emerging conventional wisdom" among university administrators, he reports, is that "Students' First Amendment rights of freedom of religion and expression will end up trumping strong anti-bias principles."

We hope so, at least where it comes to sincerely religious groups who know that defining and perpetuating their religious message depends on selecting leaders and members who agree with its views. University officials who are looking to Chi Iota to "challenge" the "conventional wisdom," as Jaschlik reports, may look for encouragement for their unconstitutional views where they like, but when most public colleges and universities that have tried to exclude CLS and similar groups simultaneously sponsored Greek systems - and the Chi Iota decision does not call into question their constitutional authority to embrace Greek life if they choose to - the Second Circuit's decision seems to offer shaky support to those who would shore up an increasingly untenable double standard for Greek and religious student groups.