“ALL COMERS” NON DISCRIMINATION POLICY: InterVarsity Christian Fellowship et. al. v Board of Governors of Wayne State University;

Stephen R. Bernstein, Stephen R. Bernstein Law Offices, srb@srbernstein.com

United States District Court for the Eastern District of Michigan;

Case 3:19-CV-10375

Introduction:

           Plaintiffs, InterVarsity Christian Fellowship et.al., brought this lawsuit against Defendants, who are board members and administrators at Wayne State University; after the University denied the group recognition as a registered student organization. The Complaint alleged violation of InterVarsity’s rights to internal management, free speech, freedom of association, freedom of assembly, and free exercise, and violation of the Establishment Clause of the United States Constitution.  InterVarsity sought damages and injunctive relief.

Facts:

 Wayne State’s non-discrimination policy states:

[Wayne State] embraces all persons regardless of race, color, sex (including gender identity), national origin, religion, age, sexual orientation, familial status, marital status, height, weight, disability, or veteran status and expressly forbids sexual harassment and discrimination in hiring, terms of employment, tenure, promotion, placement and discharge of employees, admission, training and treatment of students, extracurricular activities, the use of University services, facilities, and the awarding of contracts

           There are no written exceptions, although the policy states that the university is not precluded “from implementing those affirmative action measures which are designed to achieve full equity for minorities and women.”

lnterVarsity has operated a Christian student organization at Wayne State University since the 1930’s. In 2017, Wayne State revoked InterVarsity’s recognition as a student organization and cancelled its pending events on campus, because InterVarsity imposes certain limitations on which students can become leaders. InterVarsity allows all students to join the group as members, but leadership positions are limited to those who agree with its statement of faith.

Many registered student organizations at Wayne State require their leaders to adhere to its mission and purpose; including restrictions based on gender identity, political partisanship, ideology, ethnicity, GPA, and even physical attractiveness. However, religious groups were not allowed to require that its leaders share the group’s religious beliefs. Registered student organizations include fraternities, sororities, and club sports teams which are single gender.

 Registered student organizations are entitled to reserve free or reduced-price meeting spaces on campus; access to tables in the main Student Center to recruit new members; the ability to apply for funding from the school; access to special lockers; the opportunity to participate in the two main campus recruiting events; inclusion on a list of official student groups posted on the school’s website; and access to an online school platform used to communicate with students and post a schedule of events. Unregistered organizations are not automatically entitled to these benefits.^[1]

Registered student organizations must submit information on its members and its constitution or operating agreement; must register annually; and are required to update student information and file their current constitution.

In defending its policy, Wayne State relied heavily on Christian Legal Soc. v. Martinez^[2].  Plaintiff, Christian Legal Society, did not admit homosexuals as members, based on religious objections.  Defendant, Hastings Law School, denied Christian Legal Society recognition as a student organization, citing the membership prohibition as contrary to the school’s no exceptions, “all comers” policy. The Court ruled that Hastings could deny Christian Legal Society recognition unless the organization abided by the policy. Christian Legal Society had the option to operate independently without college recognition, as did some fraternities and sororities, if it did not wish to follow the “all comers” policy,

The Court found the present case “readily distinguishable” from Christian Legal Society:

“…Even for groups that appear to be covered by the non-discrimination policy, Defendants have intentionally created exceptions and allowed them to select members and leaders based on protected categories. Club sports teams, sororities, and fraternities were permitted to exclude members who did not fall within the groups’ sex or gender identity category… Defendants state explicitly that club sports teams, fraternities, and sororities were “exempt” from the non­ discrimination policy, although no such exception is found in the language of the policy…” (Opinion, P. 49)

The court concluded that requiring religious groups to accept leaders whose views were hostile to the beliefs of the group violated its constitutional protections. 

Decision:

The 83 page decision includes an extensive review and discussion of the relationship between universities and student organizations; and particularly enforcement of (“all comers)” nondiscrimination policies. Adjudicating various motions for summary judgment, the Court ruled, among other things:

1. That by denying recognition as a student organization; Wayne State violated InterVarsity’s rights to internal management, free speech, freedom of association, freedom of assembly, and free exercise as a matter of law.
2. That Wayne State violated the Establishment Clause of the United States Constitution, as a matter of law.
3. The Court enjoined Wayne State from revoking InterVarsity’s status as a registered student organization based on its religious criteria for student leadership selection.^[3]

Commentary and Takeaways:

The District Court Judge declined to apply Christian Legal Society to Wayne State’s “all comers” policy based on contitutional grounds; and the inconsistent application, and many exceptions made by the administration. Inferentially, assuming that a policy is enforced uniformly; universities can apparently deny recognition to fraternities and sororities which do not comply; particularly given the commentary in Christian Legal Society acknowledging their ability to operate independently.

The opinion did not address whether institutions which allow single gender Greek organizations relying on the Title IX exemption are still precluded from enforceing an “all comers” policy, nor whether Greek organizations have the right to operate independently at both public and private universities.

[1] InterVarsity provided uncontested testimony that being delisted by the school and having to conduct outreach outside the normal venues of a registered student organization “sent a message that [Plaintiffs] [were] an outsider” and “[t]hat stigma made [Plaintiffs’] recruiting efforts less effective.” (“Missing out on talking to students at WinterFest has made it harder to recruit new members for our chapter.”).) In fact, Plaintiffs’ members were asked if Plaintiffs “were …a real student organization.”

[2] Christian Legal Society v. Martinez, 561 U.S. 661, 665 (2010).

[3] Wayne State reinstated InterVarsity as a registered student organization before the Opinion was rendered. The Court also awarded InterVarsity one ($1.00) dollar in compensatory damages.