Forcing Tolerance: How to Skate on Thin Ice

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Recently, Robert O’Neil commented in the Chronicle of Higher Education about the growing conflict between university anti-discrimination policies and the First Amendment rights of campus student groups to select their members according to the groups’ core religious beliefs. To his credit, Mr. O’Neil clearly grasps the critical importance of this issue. His commentary provides a detailed, thoughtful discussion of the current state of the matter in the federal court system and his call for clarification from the Supreme Court is well-taken.

Unfortunately though, Mr. O’Neil’s commentary concludes by providing a “how to” guide showing universities how they can apply their anti-discrimination laws to exclude religious groups from campus without violating the Constitution. While his suggestions that such policies be “clear” and administered “evenhanded[ly]” are not inherently problematic, his other proposals smack of a disdain for religious organizations that would not be tolerated if applied to other student organizations.

For example, Mr. O’Neil suggests that universities sanction student groups for the act of “refusing to sign . . . a nondiscrimination policy” rather than the “stated views of the organization” because conduct is less protected than speech. Under this formulation, student groups could hold to any religious beliefs they wanted . . . .as long as they signed away their right to act on those beliefs in the future. This proposal would render the students’ beliefs meaningless.

Similarly, Mr. O’Neil proposes that public universities utilize “creative thinking” by requiring religious groups to “acknowledge” the nondiscrimination policy, but only sanctioning them if and when an aggrieved student files a charge of discrimination. Again, such an arrangement provides no protection for the student groups whatsoever.

These and other of Mr. O’Neil’s proposals offer little in the way of real compromise. His implicit premise is clear: Universities and student organizations can get along if the student groups will forfeit any religious beliefs that do not comport with the university’s concept of “tolerance.” And by offering all the ways universities can implement their policies just shy of violating the constitution, Mr. O’Neil betrays an implicit—and sadly prevalent—bias against religious student organizations. Indeed, would Mr. O’Neil also advise universities how close they can come to the line of sexual harassment, racial discrimination, or sexual orientation discrimination? I think the answer is obvious.

As the Supreme Court has repeatedly held, public universities—like all government entities—need to give private organizations a wide berth for the exercise of First Amendment freedoms, rather than looking for ways to encroach as far as the Constitution will technically permit. Hopefully, university administrators will take this principle to heart, rather than skate on the constitutional thin ice provided by Mr. O’Neil. But the Supreme Court now has the chance to reaffirm this principle definitively as today it agreed to review the Ninth Circuit’s decision against the Christian Legal Society. May the First Amendment win.

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