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A court decision with sweeping ramifications

Moderator: Not a hazing issue but related to student groups.

Insider HigherEd.com
Septembef 17, 2007

A Clash of Rights

Public colleges’ anti-bias policies have been taking a beating in the
courts in recent years. Various federal courts have said that the policies
can’t be used to deny recognition to Christian student groups ­ even if
those groups explicitly discriminate against those who are gay or who don’t
share the faith of the organizations.

Many lawyers who advise colleges, even some who deplore these rulings, have
urged colleges to recognize that the force of their anti-bias policies has
been severely weakened. Students’ First Amendment rights of freedom of
religion and expression will end up trumping strong anti-bias principles,
or so the emerging conventional wisdom has gone.

But an unusual decision
from a federal appeals court on Thursday is challenging that conventional
wisdom. The decision upheld the right of a public college ­ the College of
Staten Island, of the City University of New York ­ to deny recognition to
a fraternity because it doesn’t let women become members. In ruling as it
did, the U.S. Court of Appeals for the Second Circuit found that the
college’s anti-bias rules served an important state function ­ and a
function that was more important than the limits faced by a fraternity not
being recognized.

In a statement that some educators view as long overdue from the courts,
the Second Circuit said that a public college “has a substantial interest
in making sure that its resources are available to all its students.”

Further, and this is important because many college anti-bias policies go
beyond federal requirements, the court said that it didn’t matter that
federal law has exceptions for fraternities and sororities from gender bias
claims. “The state’s interest in prohibiting sex discrimination is no less
compelling because federal anti-discrimination statutes exempt
fraternities,” the court said.

Some legal experts view last week’s ruling as a blip ­ a result perhaps of
unusual circumstances in the case, or a trio of judges who happened to see
the issue in a different way. An appeal is almost certain. But rulings by
federal appeals courts become law in their regions and precedents that can
be cited everywhere. And some lawyers, especially those trying to defend
college anti-bias laws, say that the decision could be significant.

In the new ruling, “the court is saying there’s no question but that the
government has a substantial interest in eradicating discrimination and it
recognizes that non-discrimination policies that condition funding
interfere [with students’ rights] only to a limited degree, and that’s
exactly the issue in our case,” said Ethan P. Schulman, a lawyer for the
University of California Hastings College of Law.

A federal judge ruled last year that
Hastings was within
its rights to deny recognition to the campus chapter of the Christian Legal
Society, which barred from the group students who engage in “unrepentant
homosexual conduct.” Based on other rulings, the Christian group has
appealed, but Schulman said that the Second Circuit’s finding showed that
colleges should not abandon tough anti-bias policies (as many have, when
faced with similar legal challenges).

“Ultimately it may well be that the U.S. Supreme Court is going to have to
decide these issues,” Schulman said. “But right now I think it’s a mistake
for colleges and universities to assume that they should abandon strongly
held policies of non-discrimination.”

Other lawyers had a range of predictions on what will happen as a result of
the Second Circuit ruling. Some anticipate a quick reversal. Others see a
new front in the culture wars, with anti-Greek educators seizing on the
ruling to attack fraternities ­ and lawmakers rushing to protect the Greek
system. Others say that non-Greek, single sex organizations on public
campuses ­ think about a cappella singing groups ­ could find themselves
under scrutiny. And others think that the fight over Christian groups that
discriminate against those who don’t share their beliefs is about to get
much more intense.

With so much potentially at stake, there is some irony about the origins of
the case at a CUNY campus. CUNY colleges generally don’t house students,
and Greek systems, to the extent they exist at all, are small and off
campus. The lawsuit challenging CUNY’s anti-bias rules was filed by a new
branch of Alpha Epsilon Pi, which was seeking recognition as an official
student organization at theCollege of
Staten Island. Such status would, among other things, allow the group to
receive funds, publicize and hold events on campus, obtain a campus
mailbox. The fraternity’s members said that their organization didn’t
permit the inclusion of women, and that adding women would alter the nature
of the group. Fraternity leaders testified that havine women as members
might lead to romance and “inevitable jealousies.” Even lesbians could be
problematic, the fraternity said, because having a female member is “an
issue itself.”

The fraternity sued CUNY, arguing that its rejection of the chapter on
grounds of sex discrimination violated its right to “associative freedom”
under the First Amendment. That argument carried the day at the district
court level, which issued an injunction against enforcement of the
anti-bias rule.

But the appeals court found that the fraternity was claiming associative
rights (which offer some protection to groups with common beliefs and
interests) while opening many of its events to non-members. In essence, the
appeals court found that the fraternity members couldn’t claim to be
selective about who they hang out with, while boasting about how open an
organization they have created. Further, the court noted that the
fraternity was free to meet off campus with its own money ­ and that the
college had legitimate reason to enforce its anti-bias rules.

In just about every way, this takediffered from the
analysis applied by a federal appeals court last year in a case over the
right of the Christian Legal Society to be recognized at Southern Illinois
University. In that case, an appeals court found that the society’s right
to religious freedom and free expression were violated by a university ban
on support for groups that discriminated against gay people.

“CLS’s beliefs about sexual morality are among its defining values; forcing
it to accept as members those who engage in or approve of homosexual
conduct would cause the group as it currently identifies itself to cease to
exist,” says that decision. “What interest does SIU have in forcing CLS to
accept members whose activities violate its creed other than eradicating or
neutralizing particular beliefs contained in that creed?”

Given that differing analysis ­ and the longstanding tradition of
single-sex fraternities and sororities ­ what does the latest decision mean?

Timothy M. Burke, a lawyer who wrote a brief for the court on behalf of the
North American Interfraternity Conference, called the decision “surprising
and frankly disappointing.” He said he hoped that the fraternity in Staten
Island would win on appeal, perhaps by stressing its Jewish roots to win
some of the protection courts have granted to Christian fraternities. But
Burke acknowledged that most fraternities and sororities couldn’t make a
religious claim.

And that’s why he’s worried. “There has not been a huge clamor out there to
change a system that’s been in place for well over 150 years,” he said.
Further, the fact that fraternities and sororities were specifically
exempted from federal gender bias laws shows that there is a broad
consensus that their single-sex status shouldn’t be challenged, he said.

Attacking fraternities at public universities is especially unfair, Burke
said, in light of the 1972 Supreme Court decision in
Healy
v. James that upheld the right of Students for a Democratic Society to be
recognized as an official group at public campuses. “It’s a simple
argument,” he said. “If the SDS has to be recognized, then organizations
like Chi Omega and Sigma Pi ought to have that right.”

David French, senior legal counsel for the Alliance Defense Fund, said that
the Staten Island decision was decided incorrectly and that he was
“moderately concerned” about it. French’s group has been a major player in
challenging the enforcement of public colleges’ anti-bias policies against
religious groups. Because the groups he is representing make an argument
beyond associative rights, going to religious expression, French said he
didn’t see a legal threat.

But he said that “perverse incentives” were created by the court. That is
because the judges faulted the fraternity for wanting protection while also
conducting many activities with a broad group of students. “That reasoning
struck me as problematic for groups that want to identify themselves
somewhere in between” having an exclusive mission and complying with all
anti-bias rules. “The Second Circuit took that middle ground away,” he said.

And for any group that is traditionally all male or all female, such as
singing groups or athletic programs, that could invite scrutiny, French said.

Greg Lukianoff, president of the Foundation for Individual Rights in
Education, said that he believed the appeals court erred by underestimating
the impact of being denied official recognition as a student group. A more
realistic assessment of those burdens, he said, might have led to a
different conclusion.

Lukianoff predicted considerable fallout from the decision, even though he
thinks it is faulty. “At its worst, it provides a blueprint for public
colleges to refuse to recognize any fraternity or sorority, which I think a
lot of universities would love the opportunity to do,” he said. “I think
this opens the door to a lot of future controversy.”

And if there is such a move, he said, “there will be a predictable
backlash” from lawmakers who will try to protect Greeks. In the near term,
Lukianoff said that fraternities “are in a more precarious position.”

Schulman, the lawyer for Hastings, said he thinks part of the reason the
Second Circuit’s ruling will matter is that other courts are starting to
advance similar arguments. He cited a ruling last month by the U.S. Court
of Appeals for the Ninth Circuit thatupheld
the right of a Washington State high school that rejected a religious
group’s quest for recognition. The court ­ in a case being appealed ­-
ruled that the group was appropriately rejected under the school district’s
anti-bias policies because of religious limits on who could vote or hold
office.

Groups that want organizations at public universities to be able to
discriminate against gay people or non-Christians have been trying to argue
that the issue was settled by the Southern Illinois case or a few other
cases, Schulman said. While he acknowledged that some court decisions have
gone that way, he said that the two recent appeals courts rulings were
equally significant. “I think the issues posed by these cases are still
very much in play,” he said. “It’s too early for either side to declare or
predict victory.”

Lawrence White, formerly general counsel at Georgetown University and a
lawyer in the counsel’s office at the University of Virginia, and now a
consultant to colleges on legal issues, agreed. White thinks that many
public colleges avoid the kind of legal dispute that is going on at CUNY by
creating a specific exemption for fraternities and sororities to anti-bias
policies.

The real impact of the decision may be in giving public colleges and
universities the ability to enforce anti-bias policies against religious
groups that discriminate against gay students or others, he said.

“This decision breathes life into the notion that anti-discrimination
standards are standards that we should all adhere too, and that
universities can define those broadly,” he said. By declaring that
anti-bias policies “serve an important institutional interest,” he said,
“this decision does provide a lever.”

Sheldon E. Steinbach, a lawyer in the higher education practice at the
Washington firm Dow Lohnes, said that whatever one thinks of the latest
decision, it may complicate life for colleges and their lawyers.

“What American society in general expects from courts is uniformity and
consistency,” but this “revolutionary” decision takes an unexpected
approach on a ragne of issues, and one that is not consistent with other
rulings, he said. “This winds up being a very interesting case.”

­ Scot Jaschik

By Hank Nuwer

Hank Nuwer is the Indiana-based author of Broken Pledges: The Deadly Rite of Hazing, High School Hazing, Wrongs of Passage and The Hazing Reader. He has written articles or columns on hazing for the Sunday Times of India, Toronto Globe & Mail, Harper's Magazine, Orlando Sentinel, The Chronicle of Higher Education and the New York Times Sunday Magazine. His new book is Hazing: Destroying Young Lives from Indiana University Press.

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