RALEIGH – By now it is well known that the University of North Carolina at Chapel Hill made national headlines again for something that, depending upon whom you ask, demonstrates its animus against Christian groups or its passion for the principles of diversity. Specifically, UNC-CH is being sued by a Christian fraternity, Alpha Iota Omega, for officially derecognizing the group because the group wouldn’t sign a “nondiscrimination” pledge.
For the uninitiated, “derecognition” is the academic equivalent of Big Brother declaring Comrade Withers an “unperson.” UNC-CH declared AIO derecognized, then froze their university account containing the money the group had raised on its own, shut down their web access, denied them meeting space, and cut off their access to student-fees funding (which AIO didn’t use). Being dead to them, so to speak, AIO wasn’t even told when it was derecognized.
Why all the fuss? Why didn’t AIO sign the agreement? Because it would forbid the organization from discrimination on the basis of religion, and as AIO’s president, Trevor Hamm, explained in announcing the lawsuit, “Alpha Iota Omega was formed with the express purpose of sharing the Christian faith with members of other Greek fraternities” and its members are must adhere “to a Christian statement of faith, tenets of belief, and certain biblical standards of conduct.” It would be “impossible” for someone else “to adhere to and fulfill the purpose of the organization,” Hamm said, and since AIO’s standards include “honesty,” they “cannot in good conscience sign the university’s nondiscrimination policy.”
Well, then, why doesn’t the university let AIO meet on campus? Because, in the words of Chancellor James Moeser, “[t]here is sometimes a tension between the First Amendment to the Constitution and the equal protection provisions in the Fourteenth Amendment” which “all public universities” must somehow resolve. So UNC-CH “must strive to balance constitutional rights and protections.”
UNC-CH resolves this “tension,” Moeser said, by requiring any student group seeking official recognition to allow “membership and participation without regard to age, race, color, national origin, religion, disability, sex, or sexual orientation.” Thus, “Baptist student groups are open to Presbyterian students; Jewish student groups are open to Christian students; the Italian Club is open to Korean students; and the Black Student Movement is open to white students.”
Tension between the First and Fourteenth Amendments? What a hidebound, mossbacked beast of purblind lunacy! But apparently the beast’s bite is infectious, because many students, student newspaper editorial staffs, and outside editorialists are sounding the same theme. UNC-CH is right to withhold recognition and meeting space to a group of discriminatory Christians, they say. Who do they think they are? You can’t discriminate in America!
Here’s the deal: You can, AIO can, but UNC-CH can’t. And there is no tension between the First and Fourteenth Amendments; both protect individuals from actions by the state, not by other individuals. A person cannot cite rights to free assembly or rights of nondiscrimination in order to have government force a private group to admit him. UNC-CH therefore cannot require a group like AIO to guarantee those “rights” to any theoretical person.
As stated by the Supreme Court in Hurley v. Irish-American Gay Group of Boston (1995), “the guarantees of free speech and equal protection guard only against encroachment by the government and ‘erec[t] no shield against merely private conduct'” [quoting from Shelley v. Kraemer (1948)].
In Rosenberger v. Rector (1995), the Supreme Court ruled that university programs such as UNC-CH’s that grant fees and meeting space to a wide spectrum of student groups are constitutional even when one of those groups receiving favor is Christian. The Court found that “[i]t does not violate the Establishment Clause for a public university to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups, including groups which use meeting rooms for sectarian activities, accompanied by some devotional exercises.” Tension?
Furthermore, in Boy Scouts of America v. Dale (2000), the Court ruled that “implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Driving the point home, the Court ruled that “forced inclusion of an unwanted person infringes upon the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” Tension?
A ‘decidedly fatal objective’
In Hurley, the Court ruled on the issue whether a group, the South Boston Allied Veterans War Council, had the constitutional right to exclude from its annual St. Patrick’s Day parade the Irish-American Gay, Lesbian and Bisexual Group of Boston. Here was a case of a group giving public access and public funds (even use of the city seal!) being challenged because it wanted to exclude individuals who differed over the group’s message. In Hurley, as later in Boy Scouts, the Court affirmed that group’s rights to exclude the unwanted speakers.
In doing so, the Court made an interesting note. “It might, of course, have been argued that a broader objective is apparent: that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases,” the Court held then, as if anticipating the argument Moeser would use in 2004. “Requiring access to a speaker’s message would thus be not an end in itself, but a means to produce speakers free of the biases, whose expressive conduct would be at least neutral toward the particular classes, obviating any future need for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective.” Indeed!
The Court further noted that the group, “[h]aving availed itself of the public thoroughfares ‘for purposes of assembly [and] communicating thoughts between citizens,’ [it] is engaged in a use of the streets that has ‘from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.'” In other words, there can’t be any “antidisciminatory” strings attached; the group’s right to express its message is still protected from government meddling.
The Court then puts a silver bullet in the beast. “The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis,” it held. “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Tension?
In short, the Constitution isn’t offended when universities grant meeting space and fees to Christian groups, too, but it is offended when they try to force the groups to admit unwanted persons. Whatever tension there really is, it’s between the academic left’s Diversity Über Alles approach and the U.S. Constitution’s protections of the individual against interference by public officials.
Jon Sanders (jsanders@popecenter.org) is a policy analyst for the John W. Pope Center for Higher Education Policy in Raleigh.