FIRST AMENDMENT VICTORIES

Tim Burke, Manley Burke, tburke@manleyburke.com

The Center for Law and Religious Freedom has engaged in a series of lawsuits intended to protect the rights of private student organizations to maintain membership selection practices which deny membership to those who do not share the beliefs espoused by the organization.  The Center argues that there is indeed a First Amendment Freedom of Association protection afforded to groups which require their members or officers to subscribe to and comply with the religious beliefs proscribed by the organization.  Recently, these efforts have met with a series of successes which have direct implications for the membership practices and the right to recognition of fraternities and sororities.

The School of Law at the Southern Illinois University – Carbondale had a policy of providing certain benefits to registered student organizations, including opportunities to publicize the organization and its activities on law school bulletin boards, listing in law school publications and on its website, email access on the law schools computer net, and eligibility for certain funding through the law school.  The Christian Legal Society Chapter of the Southern Illinois University School of Law required that its members and officers maintain “biblical standards of conduct and adhere to beliefs that the organization regards as biblically orthodox.”  These beliefs include a prohibition on sexual conduct between persons of the same sex.  Such a prohibition evidently violated the Law School’s requirement that all student groups comply with federal and state nondiscrimination laws and the School of Law’s Affirmative Action Policy to provide equal opportunity for all qualified persons “without regard to race, color, religion, sex, national origin, age, disability, status as a disabled veteran or a veteran of the Vietnam era, sexual orientation or marital status.”  Because of that perceived violation, the Law School withdrew recognition from the Christian Legal Society.

That decision was challenged in the United States District Court for the Southern District of Illinois in Christian Legal Society Chapter at Southern Illinois University School of Law v. James E. Walker, which was filed earlier this year.¹  The Christian Legal Society sought an immediate injunction which would have required the Law School to recognize the organization.  The Trial Court Judge, Chief District Judge Murphy, denied the request for a preliminary injunction.  In the Judge’s Decision dated July 5, 2005, the Court found that the “revocation of recognized student organization status has not in any way forced Plaintiff to alter its message or expression” and that the organization’s “right to meet, assemble, evangelize and proselytize are not impaired.”  The Judge went on to hold that it was not clear that the Christian Legal Society would prevail on the merits saying that “the organization exists, will continue to exist, and will meet and carry on its business.  SIU’s withholding of recognized student organization status only means the Plaintiff will have to use other meeting areas and other ways to communicate with members and potential members.”

When denied the preliminary injunction in the trial court, the Christian Legal Society immediately appealed to the United States Court of Appeals for the Seventh Circuit sitting in Chicago, Illinois.  On August 22, 2005, on a two-to-one vote, the Court of Appeals granted a preliminary injunction² requiring that the Christian Legal Society be reinstated as a registered student organization at the Southern Illinois Law School.

The critical paragraph of the Court of Appeals’ order stated:

“First, the loss of the First Amendment rights presumptively constitutes an irreparable injury  for which there is no adequate remedy at law, and an injunction protecting First Amendment rights is also presumptively considered to be consistent with the public interest.  Joelner, 378 F.3d at 620.  The district court instead concluded that there be no showing of irreparable harm because CLS ‘continues to exist’ and may ‘carry on its business,” including holding meetings on campus.  This is contrary to Healy v. James, 408 U.S. 169 (1972).  In Healy, the Supreme Court held that a public university’s refusal to confer official student organization status on a Students for a Democratic Society chapter violated the students’ First Amendment associational rights.  The Court emphasized that the loss of the right to use campus facilities for meetings was the ‘primary impediment to free association flowing from non-recognition,’ but the Court also specifically stated that the loss of access to campus bulletin boards and the student newspaper as modes of communication were ‘impediments [that] cannot be viewed as insubstantial.’  Healy, 408 U.S. at 181.  The Court characterized the university’s denial of recognition as ‘a form of prior restraint’ and placed the burden on the university to justify it, saying also that this is a ‘heavy burden.’  Id. at 184.  Here, although the revocation of CLS’s recognized student organization status does not prohibit it from holding meetings on campus, it does prohibit it from any access to campus bulletin boards, private meetings space, storage space, a faculty advisor, and university website, publication, and email access.  Accordingly, under Healy, the law school’s revocation of CLS’s status as a recognized student organization constitutes a cognizable infringement of CLS’s First Amendment rights, and the law school bears the heavy burden of justifying the infringement.  The Supreme Court said in Healy that a public university’s interest in maintaining order and preventing disruption or violence on campus might constitute a sufficient justification for such an infringement, but the university policy invoked here is an affirmative action/anti-discrimination policy, not one that implicates the university’s interest in maintaining order and preventing disruption.”

The majority noted clearly that this case was and is still in its very preliminary stages.  The granting of a motion issuing an injunction pending resolution of the appeal, does not resolve this case.  In fact, the Court stated, “we cautioned that this order should not be read as expressing any ultimate view about the final outcome of this appeal.”

Even with those words of caution, the issuance of the injunction pending appeal clearly strikes a blow in support of the argument that the Freedom of Association First Amendment rights of student organizations requires public colleges to recognize student groups so long as they comply with campus conduct regulations.

In early September, just a week before trial, the Christian Legal Society scored another victory, this time at the Arizona State University.  According to the press release issued last November when the Center for Law and Religious Freedom filed suit³ on behalf of the Christian Legal Society at the Arizona State University.  Arizona State had a policy of nondiscrimination that “would prevent the Chapter from conditioning membership and choosing leadership on the basis of an individual’s agreement with the Christian Legal Society’s ‘Statement of Faith.’”  In the suit, filed in the United States District Court for the District of Arizona, the Christian Legal Society argued that the denial of recognition deprived it of a variety of benefits, including promotional publications, free photocopies, free posters, a university organizational account, lockers, mailbox, eligibility for funding, and the use of university buildings and facilities.  Steve Aden, legal counsel for the Christian Legal Society, described the settlement in an Agape Press statement as Arizona State University “agreed to amend their policies for registering student organizations to include an express statement that religious organizations may select members and leaders on the basis of religious faith.”  Arizona State University’s own spokesperson, Terri Shafer, said that the new policy applies only to religious organizations and that “if you are a religious student organization, you can require people to be a part of your religion.”

These victories for student organizations appear to be based on several factors recognized years ago by the Supreme Court of the United States.  First, there are two types of organizations which are subject to First Amendment Freedom of Association rights.  Intimate organizations, relatively small, which generally exist in family-like settings where at least certain aspects of the relationship are private and shielded from public view.  Expressive organizations have purposes which involve, at least in part, the expression of religious, social or cultural beliefs.

The Christian Legal Society qualified as an expressive organization.

Fraternity and sorority chapters may, depending upon the specific facts which apply to each organization, be able to demonstrate that they are either or both an intimate association or an expressive association.  The properly functioning fraternity chapter is indeed an intimate association.  Typically, their sizes are relatively small, though sizes vary, with a high-degree of selectivity in membership selection and many aspects of fraternity and Greek life, specifically ritual meetings and ceremonies, are open only to members.  As a result, chapters may qualify as intimate associations.  Many fraternities and sororities also engage in expressive activity.  Many fraternities have religious aspects that are a part of their ritual.  Some are founded on religious principles which are articulated in their founding documents.  Others engage in community service and philanthropic activity which promote certain beliefs or advocate certain public policy positions.  Such activities assist in qualifying fraternity chapters as expressive associations.

Fraternities and sororities should take pains to see that these practices and traditions, which establish them as intimate and expressive associations, are maintained.  Doing so, will help protect their Freedom of Association rights.

1 Christian Legal Society Chapter at Southern Illinois University School of Law v. James E. Walker; United States District Court for the Southern District of Illinois, Civil Action No.:  05-404070-GPM.

2 Christian Legal Society v.  Walker, United States Court of Appeals for the Seventh Circuit, Case No.  05 C 4070, August 22, 2005.

3 Christian Legal Society v.  Crow, United States District Court for the District of Arizona, Case No.  CV-02572-NMV-VAM.