Phi Beta Cons

Inside Higher Ed on Religious Liberty

Today’s Inside Higher Ed features a lengthy (and fascinating) story by Scott Jaschik that builds on the string of recent court successes by Christian students and student groups. Scott begins by detailing three recent cases, and then moves to his thesis:

But experts on church-state issues and higher education law see something significant in the way these disputes and others are playing out: the long-term legal and political impact of a 1995 decision of the U.S. Supreme Court commonly called the Rosenberger case.
In that 5-4 decision, the Supreme Court ruled that the University of Virginia could not deny funds to student groups just because they engage in religious activities. In a dissent that might ring true to some dealing with church-state conflicts over student activities today, Justice David H. Souter predicted that the majority opinion would make “a shambles” out of student activity questions at public colleges.
While that case was fiercely argued at the time, advocates on both sides of church-state matters say that for a variety of reasons, its impact beyond the University of Virginia wasn’t immediately as dramatic as it might have been. But now, they said, the philosophy outlined in that decision is taking hold, both judicially and politically, in a way that could leave many colleges facing legal challenges. “I think these cases today are a continuation of the broad direction set by Rosenberger,” said Terence J. Pell, president of the Center for Individual Rights, which successfully represented the Christian students at UVa who wanted student fee funds to support Wide Awake, a publication based on their religious views.

Scott is on to something here. Rosenberger was immensely significant — and not just because it established that a religious group could receive student-activity fee funding. It was significant for the way in which it viewed religious speech: as free speech, not as a kind of second class, lower-order form of expression as so many in the academy see it. The justices surveyed an expressive landscape that featured dozens upon dozens of ideological student groups and multiple ideological publications — all funded by the student-activity fee — and asked a logical question: Why exclude religious speech from this marketplace of ideas?
In other words, the Court began to move the pendulum back from an extreme swing against religious expression and toward a more truly neutral view. If you look at all the legal cases that Scott describes, you’ll note that they have one common characteristic: Each of the Christian organizations merely wants to participate equally in a program (whether it be using empty classroom space, sharing in the student-activity fee that religious students also pay, or occupying a spot on fraternity row) that is broadly available to nonreligious students and nonreligious groups. In other words, Christian groups are searching for a level playing field.
Yet some folks still don’t get it. The typical academic mindset noted here:

[Lawrence] White, the legal consultant to colleges . . . said that there is a fundamental contradiction in the First Amendment’s protection of free expression and its separation of church and state. It really can be a “damned if you do and damned if you don’t” kind of situation, he said.

It is this very notion of “separation of church and state” that gets colleges in trouble. Either from ignorance or anti-religious hostility, all too many administrators read the so-called separation as an excuse to remove as much religious expression as possible from the public university campus — literally separating religion from the campus. The “damned if you do and damned if you don’t” scenario noted above is not a reflection so much of legal reality but of political reality. Colleges and universities often want to limit religious expression (typically because it is out of step with the cultural and moral norms of the campus), but then find that they can’t censor as much as they’d like to. There are many things that push universities to censor religious students — the constitution is not one of them.
Read the entire article. Scott does a great job with IHE, and he’s one of the few mainstream reporters who has been closely following constitutional issues on campus.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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