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Legal Watch: The Latest Debate Over Church and State



​By Ada Meloy

Concerns about the First Amendment rights of religious student organizations at higher education institutions have recently come to the fore in several cases, including one brought before the U.S. Supreme Court.

In support of their missions, American colleges and universities foster interaction among students in diverse extracurricular student organizations. In an age of multicultural globalization, supporting a variety of sectarian and secular student organizations enables campuses to provide opportunities for student growth and development, while simultaneously teaching students about civility, social tolerance, and mutual respect for others who harbor conflicting viewpoints. Many institutions view participation in student organizations as an integral component of a comprehensive educational program.

Notwithstanding the benefits of maintaining an inclusive environment on campuses, institutions are sometimes wary about opening up their forums to religious student groups wishing to organize and host events. One possible concern is that a religious student group may not advance the educational mission of the institution. Regardless of cause, institutions can be guarded when deciding whether to extend official recognition to religious student groups, cognizant of the fact that this designation generally carries the attendant benefits of funding, use of campus facilities and promotional systems, and use of the institution’s name and logo.

Last year, in a case called Christian Legal Society v. Martinez, the U.S. Supreme Court ruled that the decision of the University of California’s Hastings School of Law to deny official recognition to a student chapter of the Christian Legal Society (CLS) was constitutionally permissible under the First Amendment. CLS’s bylaws did not comply with the law school’s non-discrimination policy, because they mandated that all students wishing to join CLS sign a Statement of Faith requiring students to avow their belief in core Christian principles and denounce extramarital and homosexual relations. This Statement of Faith defied the school’s all-inclusive non-discrimination policy, which requires student organizations to allow any student, regardless of his or her status or beliefs, to participate in the group’s activities and meetings, and to become voting members and leaders of the group. The majority held that this “all-comers” non-discrimination policy was reasonable and viewpoint-neutral, and, deferring to academic judgment, sided with the law school.

More recently, on March 7, 2011, the Supreme Court declined to hear an appeal by the University of Wisconsin–Madison in the case of Badger Catholic, Inc. v. Walsh. In this case, the U.S. Court of Appeals for the Seventh Circuit, relying on the same progeny of cases that were distinguished in Christian Legal Society, held that the university violated the First Amendment when it refused to reimburse a registered and recognized student organization, Badger Catholic, for some of its programs involving “prayer, worship, and proselytizing.” In contrast to the holding in Christian Legal Society, the Seventh Circuit held that the university’s actions were not viewpoint-neutral and were therefore unconstitutional. The opinion noted that the university had opened itself up as a limited public forum, and that it had made the programs at issue equally available to secular participants. Under these circumstances, the university was precluded from molding the mission of an officially recognized and generally funded religious student group by “selectively funding the speech [the institution] approves, but not the speech it disapproves.”

So where does that leave campus officials who are confronting religious organizations that seek official recognition and resources? It should be noted that while the decision in Christian Legal Society is nationally controlling, the Badger Catholic decision does not bind states located outside the jurisdiction of the Seventh Circuit. In previous cases, the Second, Fifth, and Tenth Circuits have been careful to distinguish between religious “speech” and the practice of religious “worship” in higher education institutions. In those regions, under current law, public institutions are free to use their academic judgment to decide whether to deny groups funding to practice religious worship on their campuses—perhaps due to a view that such activities violate the separation of church and state mandate of the First Amendment—but they are not permitted to ban religious speech, such as an open panel discussion led by religious leaders.

Concerns about extending recognition to religious student groups and funding their activities are legitimate in light of the tough decisions these institutions face when doling out limited funds amidst diminishing resources. Most institutions impose a mandatory fee on all students, which is collected and used to provide funding to student groups, usually on a reimbursement basis. Moreover, particular student groups, bearing the imprimatur of an institution, may poorly represent and even contravene that institution’s mission. As the latest jurisprudence exhibits, institutions walk a sensitive line to ensure that their decisions to approve or deny student groups recognition are not discriminatory, while still abiding by their own policies, so long as those policies pass fiscal and constitutional muster.

Thus, in reviewing requests for official recognition by religious student organizations, institutions should be diligent not to run afoul of First Amendment protections of religious “speech,” along with religious worship for those institutions in certain jurisdictions. On the other hand, following the decision in Christian Legal Society, institutions with non-discrimination policies similar to that of Hastings School of Law should continue to support healthy debates and collaborations at their institutions, though they may choose to deny official recognition to groups that violate institutional policy.


Ada Meloy is general counsel for the American Council on Education. She gratefully acknowledges the assistance of Matthew Kane, law intern, in preparation of this article.