In July of 2004, the Foundation for Individual Rights in Education (FIRE) wrote to UNC-Chapel Hill, explaining for the second time in less than two years that constitutionally protected freedom of association is meaningless if a group cannot exclude people who do not share the beliefs of the group. This is both basic common sense and clearly established law. The College Democrats can exclude Republicans, the college environmental club can exclude students who hate environmentalism, and the college chess club can exclude members who hate the game and wish to see it abolished. In other words, if you form a group in order to express commonly held ideas or ideals, of course you can exclude those who disagree.
FIRE was writing in defense of Alpha Iota Omega (AIO), an evangelical Christian fraternity the very purpose of which is to spread their faith. AIO was stripped of its recognition in the fall of 2003 after it objected to signing a “nondiscrimination” clause that would have forbidden it from considering religion when determining “membership and participation” in the group. UNC administrator Jonathan Curtis told AIO that it was required to agree to the clause or face refusal of recognition; AIO refused and was derecognized. Yes, that is correct, an administrator at a public college was telling a religious group it could not “discriminate” on the basis of religion in choosing its members. How exactly could someone who did not share the faith of AIO help spread the beliefs of AIO? You make a poor Christian evangelical if you show up at someone’s house saying “while I don’t actually believe in the divinity of Christ, I think you should convert to Christianity.”
In August 2004, AIO brought suit against the university. In March 2005, a federal district court enjoined the university from enforcing the student organization nondiscrimination policy in such a way as to prohibit religious student groups from choosing members on the basis of religious beliefs. In granting the injunction, the court stated that was quite likely that the policy was unconstitutional.
Shortly after the injunction was issued, UNC-Chapel Hill changed its nondiscrimination policy to include the following language: “Student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization’s goals and agree with its beliefs….” In other words, AIO could now do what it had sued for the right to do. In September 2005, AIO applied for, and was granted, full recognition as a student organization. Not surprisingly, the court subsequently dismissed the case as moot in light of the fact that UNC-Chapel Hill had issued a new policy and recognized AIO.
All too predictably, the PR machine at UNC-Chapel Hill has tried to spin the court’s decision to moot the case as a victory for the university. To fully grasp the silliness of this position, let’s take a look at how events unfolded for UNC-Chapel Hill: (1) the university refused to recognize a student group because the group wanted to exclude people who do not share the group’s beliefs; (2) the university was slammed in the press and by national advocacy organizations for not understanding that the constitutionally protected freedom of association means nothing if you cannot exclude people who do not share your beliefs; (3) the university took inadequate steps to reform its policy and was then sued; (4) a federal court enjoined the university from enforcing the policy because it was likely unconstitutional; (5) the university changed the policy and recognized the student group; (6) the court dismissed the case because, under the changed policy, the student group may now exclude people who do not share the group’s beliefs. Would you call this a victory? Maybe if you were nuts or a little dim—or maybe if you were UNC-Chapel Hill.
UNC can spin this case however it wants, but the facts are not on its side. The university wasted countless hours and taxpayer dollars in a failed attempt to exclude a Christian group that only wanted to maintain its Christian identity, and then had to change its policies and recognize the group. It lost in its attempt to tell the InterVarsity Christian Fellowship it could not limit its leadership to Christians back in 2002 (an effort also apparently spearheaded by UNC administrator Jonathan Curtis), and it lost in its attempt to tell AIO it had to admit non-Christians this time around. No matter how it spins, the score is freedom of association at UNC-Chapel Hill: 2, UNC-Chapel Hill and administrators: zero.
Greg Lukianoff is an attorney and the President of the Foundation for Individual Rights in Education
Samantha Harris is an attorney and a Program Officer with the Foundation for Individual Rights in Education