Religious Discrimination at Vanderbilt, Part 2:
Why Is Vanderbilt Violating the
Constitutional Rights of Its Students?
Dr. Steve Lemke is Provost, Professor of Philosophy and Ethics, and McFarland Chair of Theology at New Orleans Baptist Theological Seminary. He also serves as Director of the Baptist Center for Theology and Ministry, and the Editor of the Journal for Baptist Theology and Ministry.
This is the second in a four-part series on the crisis of religious freedom at Vanderbilt University. Part 1 was entitled, "Why Is Vanderbilt University Persecuting Its Christian Students?" the series continues tomorrow with Part 3: "Is the Vanderbilt University Administration Disseminating Misinformation about ItsPolicies to Repress Christian Organizations on Campus?"
The first article in this series detailed how Vanderbilt University is denying religious liberty to its students by forcing Christian campus organizations off-campus unless they take all Christian beliefs out of their constitutions, as well as removing requirements that leaders of Christian groups hold Christian beliefs. Vanderbilt also denied any expectations that leaders of Christian groups be expected to lead in Bible studies, prayer, or worship experiences. Christian groups had to make themselves completely vulnerable to hostile takeovers by anti-Christian groups to retain their registered student group status on the Vanderbilt campus. Hundreds of Christian students on campus protested the change in policy, but to no avail.
Apparently terrified by a threatened lawsuit from an openly practicing homosexual student who was asked to resign from a Christian fraternity, Vanderbilt University has swung so far in the opposite direction that its current policies appear to be violating at least three First Amendment rights of its students. Its concern for tolerance for sexual preference has made them intolerant toward religious convictions. It appears to be beyond debate that at Vanderbilt University, sexual orientation issues trump religious liberty issues. Charles Haynes, Senior Scholar at the First Amendment Center described the anti-religious posture of the Vanderbilt administration with these telling words: “In my view, such a policy promotes discrimination in the name of nondiscrimination” (in a recent Tennessean article). Likewise, Robert Shibley, Senior Vice President of the Foundation for Individual Rights in Education, expressed a similar concern in his scathing letter to Vanderbilt administrators:
The message here is clear: Vanderbilt believes that its institutional ideological beliefs should take precedence over students’ own beliefs or consciences, particularly when it comes to its students’ attitudes towards sexual activity. Vanderbilt, as a private university, has the right to demand . . . the modification of student groups’ religious and ideological beliefs to fit those of Vanderbilt administrators. But by doing so, Vanderbilt is effectively creating modified versions of every religion on campus and establishing them as the variant of that religion officially favored by the university. An institution that chooses to take this path can hardly claim to allow its students freedom of religion or association, or to tell students that they “are entitled to exercise the rights of citizens.”
What Constitutional rights of Vanderbilt students are being abrogated by these new Vanderbilt policies? First of all, the “free exercise” clause of the First Amendment guarantees the right to the “free exercise” of religion. The student Christian Legal Society on the Vanderbilt campus was forced by the Vanderbilt administration to remove Bible verses and the words “Jesus Christ is Lord and Savior” from the group’s constitution (see the article in Opposing Views). Even after CLS compromised on their faith statement at these points, the Vanderbilt administration was still not satisfied. With their anti-religious zeal, the Vanderbilt administration also denied that leaders of the group could even be asked to lead Bible studies or worship. The Christian Legal Society could not in good conscience compromise any further. The Vanderbilt rule violates this constitutional protection by disallowing the Christian students the right to gather with their fellow believers for Bible study and prayer. Obviously, gathering together as fellow believers is different from having unbelievers and atheists present who would be a disruption by challenging and dismissing the beliefs of the Christians.
Charles Haynes, Senior Scholar at the First Amendment Center, who also directs the Religious Freedom Education Project, affirms the Christian Legal Society’s position – that in light of the competing principles at play -- barring discrimination versus supporting the freedoms of religion and association -- that a fair compromise would require religious groups to open their meetings to everyone while permitting restrictions on who can serve in leadership positions. “They want to maintain their Christian identity by having leaders who make a faith commitment. It would be absurd to say a Jewish group can be led by a Christian” (cited in a Tennessean story). However, the Vanderbilt administration refuses to allow even this minor concession.
David French, Senior Counsel for the American Center for Law and Justice, characterized the anti-religious stance of the Vanderbilt administration without mincing words: “You are talking about a zealous commitment to stop faith-based decision making. Of course religious groups make their decisions based on religious beliefs. What else would they make their decisions on?”
In the famous School District of Abington Township, Pennsylvania v. Schempp, 83 S.Ct. 1560, the case in 1963 that made Madelyn Murray O'Hare famous because her son was one of the petitioners, the Supreme Court struck down the practice of students in public schools reading ten verses from the Bible each day. However, the majority opinion of the Court made it crystal clear what they were not advocating:
It is insisted that unless these religious exercises are permitted a "religion of secularism" is established in the schools. We agree of course that the State may not establish a "religion of secularism: in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.”
(Abington, supra at 1573.)
Clearly, the Vanderbilt decision does precisely what the Supreme Court here denies – it creates a religion of secularism which privileges “those who believe in no religion over those who do believe.”
The case for the Christian student organizations is further buttressed by a January 11, 2012 Supreme Court decision (Hosanna-Tabor vs. EEOC) that by a 9-0 ruling asserted the fundamental importance of governmental noninterference with the leadership standards of religious entities. Chief Justice John Roberts, writing for the majority (unanimous) opinion, pointed out that “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission” (cited in the Connecticut Political Reporter). Supreme Court Justice Alito wrote in this ruling regarding religious association (as reported in Fox News) that "a religious body’s right to self-governance must include the ability to select, and to be selective about, those who will serve as the very embodiment of its message.” That is precisely the right that Vanderbilt is denying to its students.
This, of course, is not the first challenge to religious liberty through American history. Patrick Henry, best known for his line “give me liberty or give me death,” rode 60 miles to defend three Baptist preachers—John Waller, Lewis Craig, and James Childs, in Spotsylvania County, Virginia, charged with “preaching the gospel of the Son of God” (before approval of the Bill of Rights). Henry said to the court, “May it please your worships, permit me once more: For what are these men about to be tried? This paper says, ‘For preaching the gospel of the Son of God’! Great God! For preaching the Savior to Adam’s fallen race!” (The charges were dismissed). May it be that sane minds will prevail at Vanderbilt, that First Amendment rights are honored, and that Vanderbilt students can share together their belief in “the gospel of the son of God” without harassment or religious discrimination.
Second, the First Amendment guarantees the freedom of speech. The Vanderbilt rule functionally disallows these students’ right to speak or write their beliefs freely. They cannot even write their most basic beliefs (such as, “Jesus is Lord”) in their group’s constitution. While the Vanderbilt administration went through the ruse of having a town hall meeting, the message was entirely one way. They denied the requests of the Christian students to have the Christian Legal Society counsel speak for them, and they cut off the comments of the Vanderbilt football quarterback, who is a member of the Fellowship of Christian Athletes. The Vanderbilt administration turned their deaf ear to the complaints and protest of hundreds of white-shirt wearing students, and indeed pleas from Christians and attorneys from all over the country (this will be detailed in a forthcoming article). By the Vanderbilt administration forcing a situation in which anti-Christians must be allowed to come into Christian groups, cannot be disallowed from office, and can functionally destroy one Christian group at a time, it effectively takes away the rights of the students to speak freely. Likewise, by denying their students the right to speak freely of their personal religious beliefs with fellow believers on campus, by denying the right to have leaders who lead in worship, and by denying Christian students the ability to hold meaningful times of Bible study and prayer without the threat of small non-Christian groups from disrupting or taking over Christian meetings, Vanderbilt has functionally denied their Christian students the freedom of speech. Clearly, many students would feel too intimidated to speak freely in this hostile situation.
Third, the First Amendment grants Americans the right to freedom of assembly (sometimes called freedom of association). This right allows people to meet and congregate as they choose. As Joshua Charles, a member of the Christian fraternity Beta Upsilon Chi at another institution, told The Blaze, “Freedom of association — the ability to mingle with those you wish to mingle with, to connect with those you wish to connect with, and to join in common cause with them, is a fundamental liberty.” The Vanderbilt administration is now clearly and egregiously violating this constitutional right.
If such a claim seems stretched, consider this: a Fox News story reported that in the town hall meeting a Chinese student who had attended an illegal underground church in his home country appealed to the university administrators at the meeting for answers on what would happen if he were a part of a campus Christian group that met secretly in violation of the policy. Provost Richard McCarty did not provide a straight answer, but instead made a sarcastic joke out of the student’s earnest question: “We won’t send you to Duke [University],” he said. First of all, this was a callous answer to a student whose family and who himself had been victims of religious persecution. But note that McCarty provided no assurance that the students could indeed meet for prayer and Bible study on the Vanderbilt campus, even in secret. Christian students will feel that they have to be secretive in speaking of their faith, meeting behind closed doors. This should not happen in our country.
This is a sad day in America when citizens can be denied their First Amendment rights with impunity. I believe it is not unlikely that someone will take Vanderbilt to court over these constitutional issues. However, let me be clear: I am not a legal expert, and whether or not Vanderbilt’s actions are technically legal or illegal is a secondary issue to me. Does Vanderbilt’s status as a private university which accepts millions of dollars of public monies protect them from charges of violating First Amendment rights? Maybe so, maybe not. A case could be made either way. Interestingly, Vanderbilt has argued that without its nondiscrimination policy they would lose millions of dollars of federal funding (see the third article in this series). So they seem to acknowledge that constitutional rights apply to how the university treats its students and employees. Anyway, the legal decision might depend on which courtroom, which judge, and what day it is tried. Were someone to take Vanderbilt to court over these new policies, I don’t know what legal basis might be claimed for the lawsuit. The suit might be based on some of the other cases mentioned in these articles, such as CLS vs. Martinez orHosanna-Tabor vs. EEOC, or it might be based in another section of the Constitution altogether. But again, my main concern is not whether Vanderbilt’s actions are legal or not; my main concern is that the new policies are wrong. These onerous new policies take away from Vanderbilt’s Christian student groups the First Amendment rights that citizens of the United States typically enjoy, and that students at Vanderbilt have enjoyed for the last 85 years.
Even if there were to be a lawsuit, it takes a long time to go through trials and appeals. The Christian community cannot wait for help for the courts. If the Vanderbilt decision distresses you and you want to stand with and support the Vanderbilt students standing up to defend their religious liberties, here are some things you can do:
Mr. Mark F. Dalton, Chairman, Vanderbilt University Board of Trust
305 Kirkland Hall
2201 West End Avenue
Nashville, Tennessee 37240
Nicholas S. Zeppos, Chancellor, Vanderbilt University
211 Kirkland Hall
2201 West End Avenue
Nashville, TN 37240
Richard McCarty, Provost and Vice Chancellor for Academic Affairs
205 Kirkland Hall
2201 West End Avenue
Nashville, TN 37240
David Williams II, Vice Chancellor for University Affairs, General Counsel and Secretary of the University
305 Kirkland Hall
2201 West End Avenue
Nashville, Tennessee 37240