Religious Discrimination at Vanderbilt, Part 2:
Why Is Vanderbilt Violating the
Constitutional Rights of Its Students?

February 16, 2012

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:

  • Pray daily that God will intervene in the Vanderbilt situation. Please share this prayer request with your church and other believers. The more people who know about this crisis and are praying about it, the better.
  • Utilize this “Pray for Vanderbilt Religious Freedom” picture on your Facebook page or other publications to help create greater awareness of the problem nationwide. I do, and I hope you will, also. (Just right click and copy and paste it).

  • Sign and fax this online petition from the Restore Religious Freedom at Vanderbilt student group (see http://vanderbiltreligiousfreedom.com).
  • Email this suggested protest note from the American Family Association.
  • Call, email, or write the following university officials who have played key roles in defending the new policy:

Mr. Mark F. Dalton, Chairman, Vanderbilt University Board of Trust
Vanderbilt University
305 Kirkland Hall
2201 West End Avenue
Nashville, Tennessee 37240

Nicholas S. Zeppos, Chancellor, Vanderbilt University
(615) 322-1813
nicholas.s.zeppos@Vanderbilt.Edu
Office Address:
Vanderbilt University
211 Kirkland Hall
2201 West End Avenue
Nashville, TN 37240

Richard McCarty, Provost and Vice Chancellor for Academic Affairs
(615) 322-4757
richard.mccarty@vanderbilt.edu
Office address:
Vanderbilt University
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
(615) 322-8331
david.williams@vanderbilt.edu
Office address:
Vanderbilt University
305 Kirkland Hall
2201 West End Avenue
Nashville, Tennessee 37240


Technorati Tag: ,

Leave a Comment:

All fields with “*” are required

 characters available

Zack

Prof. Lemke:

I have read both of your articles carefully, and I agree that Vanderbilt’s actions are despicable and warrant a serious, well-reasoned response from the Christian community as well as all those who support freedom of religion.

That being said, does not the First Amendment only protect against infringement of these rights by the federal government? Vanderbilt University, as a private institution, is certainly not legally bound to ensure these rights.

I am not in any way disagreeing that these actions violate the general principles encompassed in the First Amendment or that we as Christians should be outraged at these tactics; however, I fail to see how this is a constitutional issue. Thoughts?

Steve Lemke

Zack, you raise a good question. Yes, the primary focus of the language of the Constitution is about Congress not making a law to limit the free exercise of religion. However, I believe that these Bill of Rights protections apply in this case for at least a couple of reasons. First, I believe it is commonly understood that the Bill of Rights is granting citizens rights more broadly than a narrow reading might suggest. For example, the Second Amendment grants the right to bear arms for the purpose of the “militia.” Most gun owners are not part of a militia, and nor do they intend to be, but they understand the right to bear arms in a broader sense than just for militias. This sense of “rights” has been utilized, for example, by human rights groups to insist that freedom of religion should be allowed in China and other countries which do not have this specific protection in their constitution. My article cites experts smarter than me on this issue, legal scholars and experts in the First Amendment, (such as the Senior Scholar from the First Amendment Institute), who believe that this is a violation of the students’ First Amendment rights, so I’m going with them. As more evidence for this, there are numerous legal cases involving, for example, Islamic workers who sued their (private) employer for the right to say prayers through the day, about Muslims or Jews to be allowed to wear particular religious attire at work, and about Christians being fired because they shared their faith at work. All of these have been understood as First Amendment issues and have been dealt with as such in the court system, even though in none of them is Congress directly involved.

Second, Vanderbilt receives millions of dollars of government funds. That is why the government can control and limit many things that they can do. Federal and state public money has “strings attached.” Every institution, even private institutions (particularly those which accept federal or state government) come under additional government regulations. (This is why, for example, NOBTS and most evangelical seminaries accept no federal aid, no Pell grants, and no state funding — it would bring us under additional government oversight). In other words, when an institution is spending millions of federal dollars, then they are in effect an agent of the government. So the rights that attach to government attach to the agents of the government as well.

Third, let’s just imagine that you’re right and there is no constitutional protection in this case. It is still an outrage, and something that Christians should stand against. There is the issue of whether it’s legal, and then there’s the issue of whether it’s right. I think it is not legal, but I am sure that it is not right.

Bob Williford

In reality, this is NOT a Constitutional issue. However, it is a Constitutional issue, too. No doubt Vanderbilt would claim the Constitution as a Protector of what it is doing here and would then enter the arena of the Constitution.

Dr. Lemke is also correct. This is a matter of right and wrong. These students have the absolute right or freedom of expression under the Constitution and under the Laws of God. What we see here is the continuing erosion of human freedom in our Nation. WE the People had best stand up and shout or we will be forced by our institutions…public and private to sit down…..forever. Can anyone say, COMMUNISM???

Xander

Zack is right, at least partially. The Constitution, including the Bill of Rights, deals with the role of federal and state government. The First Amendment prohibits the federal government and, together with the Fourteenth Amendment, state (and local) governments from infringing on religious freedom. It has absolutely no applicability to a private school and its students. (On the other hand, it would apply if this were a public school.)

That doesn’t mean that what the school is doing is right or not contrary to the values of religious freedom and freedom of speech But it undercuts the argument (and perpetuates a misunderstanding of basic civics) to frame the issue as being about constitutional rights when it isn’t.

Tom Taggart

A private, religiously-based university could legitimately require student organizations to be lead by members of that faith, or, for that matter, impose other requirements on the students in connection with that faith, such as adhering to a code of conduct (think Brigham Young) or requiring church attendance on Sundays. Without violating the 1st amendment rights of the students.

Vanderbilt has clearly embraced an aggressive form of secular humanism, apparently with the intent to banish Christianity from the campus. Unless this discrimination is racially based, they are probably immune from suit.

The effective response is a form of guerrilla warfare; not letter writing to the present crop of university administrators (who obviously could care less).

1. Have the leadership of the various campus Christian organizations contact alumni of those organizations, urging them to not contribute to the University;
2. Recruit some respected alums to contact other alumni, request they not contribute to the University until these policies are reversed.
3. Sports MONEY! Ads in the program, on billboards? Contact those sponsors and urge them to withdraw their support.

When the annual fund drive fails, & the football program has a lot of white space, then the administration and trustees will take notice. Given the liberal way, they will probably try to purge those students who were involved. Given the rampant political correctness portrayed here, they might be better off at a different school, instead of having to put up with this nonsense.

    Steve Lemke

    Tom,
    I agree. The agenda-driven Vanderbilt administration has turned a deaf ear on this issue, and only pressure from the outside will turn them at this point from their determined end.
    swl

Steve Lemke

Xander,
I understand what you’re trying to say, but again, going back to my response to Zack, there are dozens of cases that the Supreme Court has dealt with, most of them dealing with private employers, dealing with a host of religious issues as First Amendment issues — being fired or chastised for wearing various religious clothes or markings, or for not working on Fridays or other holy days for religious reasons, or for witnessing in the workplace, or for taking certain illegal drugs, or reading the Bible or praying to Mecca during work hours, or having various forms of religious art in the workplace, and a number of other instances. In each of these cases, it did not concern Congress making a rule. It was a broader interpretation of the First Amendment. So, I think ya’ll are a little off target about the legal history of suits going to the Supreme Court dealing with the First Amendment.

And, again, I cited a number of legal experts in this article, specialists in the First Amendment, who claim that this is a First Amendment. I’ll cite even more examples in article 4 of this series. I hate to pull rank on you, but these guys have expertise that you don’t, so I’m gonna have to rank their expert opinion over yours.

Zack

Prof. Lemke:

If I may beg of your indulgence, I would like to respond to your comments to me and to Xander. I am not trying to nitpick; nor am I trying to beat a dead horse. Rather, I sincerely hope that this response is received for what it is: a prayerfully considered continuation of this dialogue.

For the sake of clarity, I will first respond to each of your numerical points in your comments to me, followed by a response to your comments to Xander.

***

First, a response to your comments to men:

1. a) The First Amendment to the US Constitution prohibits the federal government from infringing upon the rights of free speech, assembly and freedom of religion. Understandably, these rights are not absolute. One cannot claim that it is his religion to commit murder freely. Nor can one yell “FIRE!” in a crowded theater, thus causing a riot. It is not a “narrow” reading of the Constitution to limit this right, and there is no case law out there which says that these protections have been “grant[ed] . . . more broadly,” as you say. As Xander has correctly pointed out, these prohibitions against the federal government have been incorporated to the individual state governments through the Fourteenth Amendment and through US Supreme Court case law. (For what it’s worth, I left that part out of my original comment, simply because I didn’t feel it had any application here.) Thus, neither a state government nor the federal government can unreasonably infringe upon the rights.

b) When a human rights organization or any other individual uses the term “rights” we must always be careful not to mix and mingle those terms with US Constitutional rights and law. Humans may very well have a natural, God-given right to freedom of religion or freedom of speech, but that doesn’t mean that a violation of that right is a violation of similar-sounding “rights” in the US Constitution. Vanderbilt is no doubt discriminating against these groups based upon religious grounds and stifling speech, but that, in and of itself, does not make this a constitutional matter. As Xander stated perfectly, “it undercuts the argument . . . to frame the issue as being about constitutional rights when it isn’t.”

c) None of the experts you have cited thus far support your argument. I’ve read each of their quotes carefully, as well as the links you have provided. In addition, I spent some time doing my own research of recent news stories surrounding this issue in order to see if other scholars were couching this as a First Amendment violation. Mr. Haynes’s article merely states that this is a discriminatory practice based upon the University’s own privately stated commitment to religious freedom. Nothing in his article mentions First Amendment, and just because he works for a First Amendment advocacy center does not mean he implicitly believes this to be a First Amendment case. Mr. Shibley’s letter merely states that this goes against the “American tradition of religious pluralism.” Again, he makes no mention of this being a First Amendment issue. Likewise, Mr. French, of the ACLJ, merely described this as a private institution making a stance against religion, without any mention of First Amendment law. Finally, Mr. Charles, the final source cited, is merely a fraternity member at the University of Kansas whose expertise appears to be that he has worked with Glenn Beck, (according to the article you cited).

d) Employment discrimination law is not based upon the First Amendment. The “numerous legal cases” to which you refer are based upon different legal principles. They are simply not applicable to a discussion of First Amendment law, unless, of course, the employer was a government entity. Employment discrimination case law is based primarily upon the Fifth Amendment, the Fourteenth Amendment, and the Commerce Clause. First Amendment law constitutes a wholly different body of law.

2) Simply because an institution receives some federal funding of some kind does not automatically make it an agent of the government. It can, potentially, in some cases. But that’s not the case here. When congress exercises its power of the purse against a recipient of federal funding, there isn’t some automatic incorporation of all federal law. Rather, congress has the power to condition the granting of funds based upon compliance with certain specific requirements. NOBTS and other seminaries are right to refuse federal funding, but it’s not because they would automatically be agents of the government, bound by every single government regulation. The strings attached to government funding are more specific and more narrowly tailored. If we were to use the logic that the mere receipt of government funds creates a situation of government agency, then any person receiving food stamps could be sued for violating an individual’s freedom of speech. With all due respect, that’s simply not how federal funding works.

3) As I said very clearly, Christians should be outraged at these actions. It’s egregious. It’s outrageous. It’s despicable. These actions do nothing but tarnish the reputation of Vanderbilt University and serve to foster a fear and hatred of religion, all in the name of political correctness. Does this violation common sense? Yes. Does this violate general notions of decency and freedom? Of course. It does not, however, mean that it is a constitutional issue.

***

Second, a response to your comments to Xander:

1) Again, employment discrimination law and First Amendment law are apples and oranges.

2) I sincerely hope that you know Xander personally; otherwise, the comment “I hate to pull rank on you, but these guys have expertise that you don’t” comes across as rude and condescending, especially when the cited experts don’t support your conclusions. Xander’s comments were well-written, concise, and legally sound. If I were to guess, I’d bet that Xander has at least some legal training and some real knowledge in the field.

***

Again, I hope these comments are received in a spirit of cooperation and with the intent to hone our shared goal of furthering the Gospel of Christ.

If you have other cites to legal scholars who consider this specific case to be a First Amendment case, or if you have any citations to case law which addresses private discrimination as a First Amendment violation, I would gladly welcome it.

Zack

cc: Xander

Steve Lemke

Zack (and Xander,
It appears that I’ve not communicated my intent very clearly. It was not my intent to engage in an extended disputation about constitutional law. I’m issuing a call to action. I do think the Vanderbilt policies violate First Amendment rights, but if you disagree, that’s fine with me. As long as you agree that Vanderbilt’s actions are “egregious,” “outrageous,” “despicable,” they “tarnish the reputation of Vanderbilt University and serve to foster a fear and hatred of religion, all in the name of political correctness,” violate “common sense,” and “violate general notions of decency and freedom,” then I’m happy. Now my question is, What are you doing about it? What steps are you taking to address this greivance? That, at least, is my focus.

No, I don’t know Xander, and I doubt that is his real name. I don’t know what his profession is. I’m sorry that I came across as rude or condescending, though it doesn’t seem that way to me. I would feel the same about your advice about a cold vs. my doctor’s, your advice about my taxes vs. my CPA, or your advice about cuts of meat vs. my butcher’s. All I was saying is, I’m trusting the experts. If I misread the experts I cited, then I apologize to them and you.

Again, I would encourage us all to focus on righting this wrong, not debating the fine points of constitutional law while Vanderbilt is burning.

Noonzie

I think they should just re-write the requirement to say, “leadership position requires that you must be a wretched sinner that has broken all of God’s commandments and deserves an eternity of God’s wrath in an eternal hell, but by no merits of his own has been given grace and has not his own righteousness, but the righteousness of Christ imputed upon him/her”.

Anyone who is a non-Christian will never believe they are horrible enough to fill this role. Problem solved :)

Leave a Comment:

All fields with “*” are required

 characters available

Read Next

Religious Discrimination at Vanderbilt, Part 3:
Is the Vanderbilt University Administration Disseminating
Misinformation about Its Policies to Repress
Christian Organizations on Campus?

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 third in a four-part series on the religious liberty ...