BALANCING UNIVERSITY NON-DISCRIMINATION POLICIES AND THE FIRST AMENDMENT: THE CLASH BETWEEN UGA AND BYX

Elizabeth Hutton

At numerous universities across the country, heated conflicts have arisen between universities that have adopted nondiscrimination policies and fraternal and other organizations that on the one hand wish to restrict membership to those who hold specific religious beliefs and on the other still desire to be officially recognized student groups. Often, this sort of membership restriction directly conflicts with university-imposed nondiscrimination policies, forcing organizations to decide what they would rather have: exclusive membership or university recognition. This contentious debate is aptly illustrated by a recent dispute between Beta Upsilon Chi and the University of Georgia (“UGA”).

The conflict began when UGA removed Beta Upsilon Chi (or “BYX” for “Brothers Under Christ”) from its roster of recognized student groups due to the fraternity’s requirement that members and officers “profess faith in Jesus Christ, affirm the Doctrinal Statement^1, and adhere to the Code of Conduct.”² This requirement conflicted with UGA’s nondiscrimination policy, which requires, in relevant part, that membership in a student organization may not be denied on the basis of religion. Losing its official recognition meant that the fraternity would be stripped of numerous rights and privileges, including the use of university facilities for meetings, advertising, a campus mailbox, the right to apply for certain funding, access to audiovisual equipment, fundraising on campus, and other benefits.

When the president of BYX, Jacob Webster, approached UGA’s Assistant Director of Student Activities to explain that the fraternity is a registered social or recreational organization under I.R.C. 501(c)(7) and is thus exempt from any University-imposed requirement not to discriminate on the basis of religion,³ UGA responded that the organization fell under the jurisdiction of the educational code, not the tax code. As a result, UGA argued, the fraternity must comply with any University-imposed nondiscrimination policy. Refusing to compromise its religious beliefs by expanding its membership to include non-Christians, BYX sought to enforce its legal rights in court.

On December 5, 2006, the local chapter of BYX at UGA, as well as the national organization, Beta Upsilon Chi, Inc., filed suit in the United States District Court for the Middle District of Georgia against UGA seeking declaratory⁴ relief and an injunction permitting the fraternity to re-register as a recognized student organization with all rights and privileges stemming from such recognition. The plaintiffs were represented by the Alliance Defense Fund and the Center for Law and Religious Freedom (CLRF).

In the complaint, plaintiffs argue that they have a “basic organizational purpose: to provide a fraternity for Christian men where close bonds of brotherhood can be cultivated while avoiding the unchristian lifestyle often associated with college fraternities.” Because of this, plaintiffs explain, membership is limited to those embracing, and living by, the basic tenets of Christianity. The complaint sought to enforce plaintiffs’ constitutional rights, namely their right to freedom of expressive association, freedom of intimate association, free speech, free exercise of religion, and their right to equal protection under the law.

On December 7, 2006, only two days after suit was filed, UGA capitulated and acknowledged that a student group like BYX could be formally recognized as a fully-functioning student organization even if it did not adopt the University’s nondiscrimination policy if that policy would force the inclusion of individuals whose religious beliefs would directly conflict with the declared purpose of the organization. In a letter from the UGA’s Associate Director for Legal Affairs, Arthur H. Leed, to Timothy J. Tracey, attorney at the CLRF, BYX “will have all of the rights and responsibilities of a registered student organization except that they will be exempt from the provisions of the University’s Non-Discrimination and Anti-Harassment Policy relating to membership in the organization based upon religion.” The letter further stated that UGA would immediately register BYX as a student organization.

While the controversy at UGA has been resolved, at least for the time being, the same issues will spring up again as universities and fraternal organizations work to strike a delicate balance between promoting tolerance and acceptance while still preserving the free exercise of constitutionally protected rights.

¹ In sum, the Doctrinal Statement requires that all members of BYX affirm a belief in one God, the truth and authority of the Bible, Jesus Christ, the Holy Spirit, and that man was created in the image of God.

² Complaint, page 6, Beta Upsilon Chi et al. v. Michael F. Adams, et al., filed in the USDC for the Middle District of Georgia, December 5, 2006.

³ BYX’s gender and religion membership and leadership requirements are federally recognized associational classifications, not invidious discrimination. See Complaint, pg. 13.

⁴ A declaratory judgment is a “binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement.” Blacks Law Dictionary, West Publishing, 1996.