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Lawsuit may redefine discrimination on campus

By Wendy McElroy
web posted January 13, 2003

A federal lawsuit filed on Dec. 30 will determine whether Rutgers University can de facto ban Christian student groups. It may set national policy.

On campuses across North America, Christian student groups are being ordered to either accept leaders who violate their beliefs or lose the official "recognition" that allows them access to university funding and facilities.

The universities say the groups' exclusion of gays and non-Christians from leadership roles is sexual and religious discrimination. The groups reply that their membership is open to all but their leaders must hold certain beliefs or the group will cease to be Christian.

Civil libertarians add that the non-exclusion requirement violates both freedom of speech and freedom of association. Moreover, the universities are targeting the leadership of Christian groups while allowing gay, feminist and minority groups to determine their own leaders as well as membership.

One student commented that his university's "Women's Resource Center" holds "a vast array of events" from which he is explicitly barred from attending. "I was asked to leave meetings ... because my presence as [a] straight white male was unwelcome."

In recent months, the debate has heightened.

At Tufts University near Boston, a Christian Fellowship was placed on probation in October. At the same time, Central College in Pella, Ill., debated whether to strip InterVarsity Christian Fellowship of official recognition. In both cases, the proximate cause was the group's refusal to allow homosexuals to serve as leaders.

At Harvard, a grant to the Harvard-Radcliffe Christian Fellowship was postponed while administrators assessed the group. The associate dean stated that requiring leaders to share the Christian beliefs was discrimination.

The University of North Carolina at Chapel Hill agreed. In December, three Christian organizations were ordered to remove discriminatory language from their constitutions or have their recognition revoked. In the wake of national criticism, the University backed down.

Rutgers is standing by its suspension of the InterVarsity Multi-Ethnic Christian Fellowship (IVMECF). The Christian group isn't budging either. Its lawsuit against Rutgers is being financed by the Alliance Defense Fund, which supports religious organizations who conflict with government policy. David French -- the attorney representing IVMECF -- bluntly states: "You can't have a leader of a Christian group not be a Christian. That's nonsense."

Given that Rutgers is a state university -- as are most of those involved -- its actions may also violate its responsibility to respect the constitutional rights of students.

Several court precedents have found that freedom to exclude is part and parcel of "freedom of association." Although that phrase does not occur within the Constitution, Supreme Court decisions have protected freedom of association as an aspect of the First Amendment's protection of speech, assembly, petition for the redress of grievances, and the establishment of religion.

The protection applies especially to "expressive" organizations -- that is, to groups dedicated to a specific message or point of view.

For example, in the 1984 decision Roberts v. United States Jaycees, the court found that the ability to determine membership was essential to "expressive" organizations. Otherwise, black rights groups could be shouted down by white members, Jewish anti-defamation groups could be disrupted by Nazis. Freedom of assembly and free speech would be de facto denied.

But does the First Amendment protect groups with open memberships, which impose leadership restrictions?

The most relevant case is probably Dale v. Boy Scouts of America, decided by the Supreme Court of New Jersey in January 2000. This case addressed whether the Boy Scouts -- an organization with relatively open membership -- could terminate a gay scoutmaster. By a narrow margin, the court found that groups should not be forced to include people who would significantly damage "the group's ability to advocate public or private viewpoints."

Being forced to include non-Christians in its leadership would certainly affect IVMECF's religious mission. Indeed, French claims that universities are conditioning access to campuses "on compliance with an anti-discrimination position that essentially tears the heart out of the religious nature of the group."

Ironically, a victory for Rutgers might be more devastating to its politically correct policies than a defeat. If Rutgers successfully argues in court that no organization with "discriminatory leadership" can be officially recognized, then it may be required to impose that same standard on every organization -- especially those with discriminatory membership as well:

Feminist groups on rape and sexual harassment might have to admit males. Gay groups might have to welcome straight members. And, as many males and heterosexuals have discovered, a significant number of those groups viciously discriminate in both membership and leadership.

The key difference between such groups and IVMECF is honesty. Every group must submit its bylaws and constitution for review before being officially recognized. Politically correct groups include the standard non-discrimination language of the university, and then act in an exclusionary manner. Christian groups are refusing to lie. And, so, they are "derecognized."

If Rutgers wins, all student organizations may have to apply the non-discrimination standard not merely in words but in deeds as well. Or be disbanded. Simply by going to court, the IVMECF has won ... whatever the verdict turns out to be.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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