And How Will This Be Constitutional?

Honestly, is it so hard to ask these yahoos who propose laws in our state to outline, even briefly, how they think they’re going to hold up in court? The state legislature is trying to pass a bill that would require all state schools to allow religious organizations that receive school funding to discriminate in who holds their leadership positions. This is in response to Vanderbilt now enforcing a rule that organizations that receive school funding cannot discriminate in who holds leadership positions. So, the Fellowship of Christian Athletes could have an atheist treasurer at Vanderbilt if said atheist got enough votes.

Now, I love Vanderbilt. Don’t get me wrong. And they can and often do wonderful things for great reasons. But they would not have a.) had this rule or b.) started more strictly enforcing it unless they felt it was going to cost them money at some point. I have no inside knowledge of that. I’m just speaking the truth. A staid slow-changing institution doesn’t suddenly go “Oh, hey, big change, happening quickly!” unless something is forcing it.

And while I would have loved for the state legislature to look into this to see why a slow-moving institution would switch course so rapidly, to see if there was some legal liability they might face by not changing, before the state legislature possibly opened all the state universities to that legal liability, I know that’s wishful thinking. So, instead, I’d just like to hear how the State thinks it can defend this law in Federal court. If you have to be Christian to serve in the leadership of a Christian organization at a State school, then someone, acting in the capacity of the state, is going to have to make a decision on who’s Christian.

Once the state is in the business of defining who isn’t and is a Christian, as if the state is the ultimate religious authority, it seems to me you run into church/state issues and the State is clearly going to be in the wrong.

If we have to have fiscal notes on bills, can’t we have legal notes on bills just outlining possible legal challenges the bills might face? And then folks can explain how they think those legal challenges are going to be overcome.

Because you know it’s not going to be the atheist at UT who can’t be the treasurer of the Fellowship of Christian Athletes. It’s going to be the Jehovah’s Witness or the Mormon or the Catholic kid.

And that’s going to be ugly.

35 thoughts on “And How Will This Be Constitutional?

  1. For someone to become Treasurer of FCA, they would first have to be a member of FCA, no? Why would someone who isn’t a Christian Athlete join FCA? I assume that these organizations are allowed to discriminate as to who becomes a member – and I think that’s generally OK. I do think it’s rather self-policing, though.

  2. No, I don’t think they are allowed to discriminate when choosing membership. Not and get school funding.

    But I think it’s easy to understand why an atheist might want to join FCA. Atheists and Christians aren’t, by definition, mortal enemies. If your friends are all in FCA and they’re doing cool stuff you think helps the community, you might join, even if you don’t believe, just to be a part of that. And your friends might encourage you to join, hoping you’ll convert.

  3. Well, if they’re not allowed to discriminate in their membership then it follows that they shouldn’t be allowed to discriminate in their leadership. Your state legislature sounds about as messed up as mine.

  4. Religious organizations are not the only ones threatened by this policy. Political organizations on campus present another sort of problem.

    Back when I was in college in KY the College Republicans managed to get one of their group elected as an officer of the campus Democrats. This was an election year and when the Democratic candidate for Senate or House came to that campus, the mole denounced him as a traitor to the party. It created a huge stink.

    Under the Vanderbilt policy, if there were more College Republicans at Vandy than College Democrats, then the Republicans could take over the Democrats and do as they wish with the party. And imagine a case where a campus organization had substantial money in the bank. A group of students could take it over and use the money as they wish.

    Now someone will say that this is unlikely if not absurd. But in today’s climate of increasing nastiness across our society, allowing groups to preserve the integrity of their membership does not seems as unreasonable as fifty evangelical Christians joining the Vanderbilt chapter of the Richard Dawkins Fan Club.

  5. Most university student organizations have explicit funding rules. If you want to exist as a student organization and meet in campus space, accept funding from the university to run your programming, etc, you usually MUST be open to all comers. Your group’s constitution must reflect that openness. Your meeting times have to be posted in public places, etc…it’s actually quite rigorously open.

    So, for example, I’m the advisor to our campus honors society. We get a big chunk of funding from our student association. But wait! Isn’t an honors society just for the kids who have met certain threshhold criteria? Yeeeesssss…and no. We have the general membership (kids who are interested in history and who we are supporting academically while they fulfill the requirements for induction) and then
    we have the people who have been inducted and are eligible to attend national events. We cannot discriminate on the basis of GPA, coursework taken, etc. If you’re enrolled as a student and you want to join, welcome.

    Therefore, our equivalent of FCA on campus — Brothers and Sisters in Christ — has to be open to accepting non-Christians if they want to exist as a student organization. From the university’s point of view, they are using campus resources and repping the university in their actions. Thus, they must conform to university policies.

    However, to address what Mark is saying, the bank accounts for student organizations are rather closely controlled and monies have to be spent for the purposes outlined in the charter and charters for student organizations are written very carefully. At least on my campus, it would be very difficult for a college Republican to spend the
    College Democrats Society’s money unless they were really willing to “engage in positive advocacy for the New York State Democratic Party, its platform issues, and its candidates.” You don’t get to use the money however you want. Charter revisions are actually quite cumbersome to do, moreover. These theoretical Republicans in Dem clothing will not be able to amend to “disseminate information about Democratic candidates” in less than a couple of semesters.

  6. “…I’d just like to hear how the State thinks it can defend this law in Federal court.”

    If I’m not mistaken, won’t someone actually have to spend the time and money to oppose this in court? And if the defendants land a sympathetic judge with Dominionist leanings (not a stretch considering the many years of GOP legislative and executive dominance and calculated Democratic fecklessness in appointing federal judges), then the case would have to go higher and become more costly.

    I wouldn’t doubt that the legislators in question know their law flies in the face of the spirit of the Constitution. They probably understand that most right wing legislative victories are the result of throwing massive amounts of shit on the wall and seeing what sticks. Given that the Democrats are too busy chasing some of the same corporate campaign dollars to put up an honest fight, I’d say the right wingers have good reason to be confident that they’ll get away with this.

  7. Sam, if this were a federal level law, I’d agree with you. But following these state-level yahoos, I can tell you that the scariest realization I’ve had is that they don’t understand how our government works and, if they did, they wouldn’t like it.

  8. Yeah, Mark, I’m with Bridgett. I just don’t find that a scary or likely scenario. Any group that wants to have strict membership rules can. They just can’t take university money.

    How is that a problem?

  9. This is a reflection of the same issue we’re seeing in the contraception debate. You take the federal government’s money, you play by the federal government’s rules. It’s a pretty simple concept, when you get right down to it.

  10. But with the contraception debate no one is TAKING the federal government’s money. The federal government is TELLING THEM HOW TO SPEND THEIR OWN MONEY…

    Key difference, that.

  11. Aunt B. and NM,

    In both cases the problem is that the universities and the federal government define the money to their advantage specifically to give them the power to meddle.

    Take the more simple case of the universities. From where does the university funding for student organizations come? Probably almost entirely from student fees that are built into tuition. So the university is taking money from the students and calling it ‘university funds’ in order to impose a rule denying those same students the constitutional right to free association.

    When one looks particularly at private schools like Vanderbilt where some students effectively get charged to pay for other students, that seems particularly unfair.

    The issue raised by KC is in the same vein but infinitely more complicated. Over the years the federal government has aggressively but selectively expanded the definition of ‘federal money’ in such a way as to expand federal power in ways that often exceed the scope of any legislative action.

    One needs only to look at the Hillsdale College and Grove City College cases to observe how the federal government has broadened its reach to include things like social security payments and Pell grants which go to individuals as ‘federal funds’ for the purpose of giving it greater power over the use of those monies. On the other hand, GI education benefits can be used like a voucher at religious institutions like Notre Dame with no regard for the First Amendment.

  12. From where does the university funding for student organizations come? Probably almost entirely from student fees that are built into tuition. So the university is taking money from the students and calling it ‘university funds’

    That’s how payment works. When you pay someone money, it becomes their money. If I hire an auto mechanic to fix my car, that money becomes his in exchange for the service of my car getting fixed and I don’t have the right to tell him how he can or cannot spend it. Likewise if a student pays the university tuition for education (which entails extra curricular activities as well), that money indeed becomes university funds. All of us have money only because somewhere along the lines we’ve been paid it. That’s the way our entire economic system functions.

    in order to impose a rule denying those same students the constitutional right to free association.

    Unless I’m sorely mistaken, students are allowed to associate or not associate with anyone they choose. The only restriction that is being placed is within the confines of school-sponsored and funded activities. There is no constitutional right to have your exclusive club paid for.

  13. “When one looks particularly at private schools like Vanderbilt where some students effectively get charged to pay for other students, that seems particularly unfair.”

    Nonsense. It’s the price you pay for a university experience that includes something other than just class attendance and tests.

  14. Dolphin,

    And why do universities fund student organizations? To encourage students to pursue interests that may or not be related to academics but which will enhance the college experience. So how does requiring such organizations to allow other students who do not share their interests benefit the members of those organizations? This policy will only worsen divisions on campuses, not improve them.

  15. Gee, a Catholic friend of mine joined the Jewish Students group at his university. No one stopped him, and he was respectful enough of what they were doing that one year he was elected the group’s president. How did this hurt the group? How did it worsen Jewish/Catholic relations?

  16. In my experience, people almost always get more benefit from working to achieve common goals with a variety of others than they do attempting the same thing from within an entirely homogenous group. But that’s really neither here nor there. All students pay to attend the school, so all students should share in the opportunities provided by their tuition payments.

    I fail to see how this worsens divisions. At worst, it leaves them neutral. At best it improves them. If an athiest sees the things the FCA group is doing and wants to help out, I see that as an amazing opportunity for all of those students to grow. If a Republican student sees the things the College Democrats are doing and wants to help them out, I likewise think it’s an amazing opportunity to grow.

  17. NM,

    I am sure that the majority of such instances are positive. But I am also positive that your Catholic friend went with an open mind and heart and was greeted in the same way.

    My issue is that policies like those at Vanderbilt do not allow the Jewish Students group to exclude a Catholic student who liked to make references to Pius XII or to the good old days of the Reconquista. Or what about a Black Student organization allowing white participants wearing ‘Justice for Zimmerman’ {and I recognize the irony of that in light of what such Justice for Zimmerman should probably entail} t-shirts?

    Prohibiting closed groups seems like a bad idea until one considers that now the universities will have to start deciding when organizations can prohibit individuals from participating based on their speech. I cannot wait until students at Vanderbilt shout down a speaker like Ann Coulter but then allow a liberal organization to bar a student for the content of his or her comments.

    Which is to say that going down this path inevitably puts colleges in the position of judging what is acceptable speech instead of allowing student organizations to rise and fall on their own merits. After all, obnoxious groups that limit their membership will decline and get less funding until they are meaningless. Which, by the way, is the result of students making their own decisions within a reasonably free market of organizations and ideas. Sort of like they were adults.

  18. Dolphin,

    As I noted above, I believe that left to their own devices, your view would be the most common result. But the reality of campuses today is that, as reflections of the larger society, they are subject to the uncivil behavior of partisans and extremists on all sides. That is why groups need the freedom to choose their members and decide who participates in their events.

  19. Mark, harassment has long been prohibited on college campuses. You’re arguing against a problem that doesn’t exist.

    College students are (mostly) adults, but adults, whether in college or out, are still bound by the rules of the organizations and institutions they choose to be a part of.

  20. Yeah, what Dolphin said. If someone shows up to be provocative, one asks that person to go away and points out how the behavior is counter to the group’s written-and-filed-with-the-organization-of-student-organizations-whatever-its-name-happens-to-be-at-that-campus. If the behavior continues, that is grounds for removing the person from the group. Problem solved.

    (BTW, the good old days of the Reconquista were pretty good for Iberian Jews. It was the effective end of the Reconquista over the course of the 14th century that was a problem. I trust that the Pius XII-loving provocateur would do a little research before dropping bombs that turned out to be duds.)

  21. Dolphin and NM,

    “Harassment has long been prohibited on college campuses”

    If by that you mean speech that is offensive to liberal students and faculty, I agree. When the prohibition is extended to speech that is offensive to conservatives, then I will accept your point.

    To use just one tiny example, were any students or faculty at Duke ever called to account for their offensive comments {not to mention their published or printed statements} about the wrongly-accused lacrosse players? How long did it take the University to condemn those students and faculty for their behavior?

    If the playing ground were level, then I would happily agree with NM. But we all know that it isn’t. Today on an American college campus it is perfectly acceptable to call a white student a rapist and a racist but not to call a black student a ‘water buffalo’ or to collect signatures from students for a referendum on a ‘right to work’ law in Ohio.

    Which is why the schools should stay out of the issue of membership of groups unless there is a specific problem effecting the larger campus.

  22. Mark, honestly. If you can’t see the difference between calling a white person a racist or a rapist and calling a black student a water buffalo, you need to take a break from commenting here until you can.

    Attacking someone’s behavior and attacking who he or she is are not equivalent things.


  23. Mark, that’s some pretty selective myopia you’ve got going. I watched members of gay/lesbian groups get outed in student newspapers and individually harassed and hounded out of the dormitories they lived in, I’ve seen students from minority religions refused funding for their groups because that would have been too controversial, and I’ve seen plenty of individual conservative students show up to heckle left-wing and even moderate speakers. And I don’t see how the administration getting involved in policing membership of official student organizations (which is what you seem to mean by “schools should stay out of the issue of membership of groups”) would have changed any of that, any more than it would have changed anything that went on at Duke, because none of those events had the slightest thing to do with who got to join which organization.

  24. Aunt B.,

    Calling someone a ‘rapist’ before they are tried is much worse. The Duke students were cleared or does that matter? Especially if that person {or 80-some persons} has the power of being a faculty member. Calling someone accused of a crime a ‘racist’ before there is any evidence to that effect is much worse. Unless one believes that all crimes committed by whites against blacks are race-based. Or did I miss the outrage at the Duke faculty who publicly condemned students who were later proved to be innocent?

    And if calling someone a ‘water buffalo’ is deserving of punishment, what about calling someone ‘stork’ or ‘pig’ or ‘Hindenburg?’ Why don’t we just enact laws on campuses that prohibit any speech that offends someone? Or at least someone who isn’t white and middle class?

  25. Mark, you’re confusing free speech with harassment. There’s a BIG difference between expressing one’s own viewpoint publicly and actively seeking out others for harassment. If you believe that that distinction disproportionately affects conservatives, than that says more about the conservatives you hang out with than it does about the distinction itself.

  26. NM,

    My point about the Duke and Penn incidents is that college administrations actually do ‘play favorites’ in the application of rules. If a group of professors at Duke had taken out a newspaper ad demanding a fair trial for the lacrosse players, they would have been run out of the University on a rail.

    As for ‘outing students,’ that is detestable. When it involves private citizens, I have zippo problem with the university punishing the person or persons responsible. To the extent that the outed student qualified as a ‘public figure,’ that is another matter. And some gay groups out people because of their positions on gay-related issues.

    But the heart of the original issue, and my main point, is that colleges create this situation by taking it upon themselves to dole out the money for student organizations. Let a Student Senate make those choices. Let a Student Life Committee make them. And let that student organization make the rules for groups and decide what exceptions to make for which groups. It would be good for the students and it would be good to keep the schools from having to get involved in the process and from having to apply the same rules to all groups as if all groups are the same.

  27. Dolphin,

    Do you have a definition of ‘harassment’ that applies equally to all people regardless of race, gender, religion, looks and sexual preference?

    Ultimately that almost always comes down to a case by case finding of fact. And that makes laws and rules about harassment particularly troublesome.

  28. college administrations actually do ‘play favorites’ in the application of rules

    They often do, but which side they favor depends on the university and the administration. In the instances I mentioned above, the administration approved of the harassment and there were no repercussions.

    What I find fascinating is that the TN legislature feels that it has the right to opt the state out of federal anti-discrimination standards at the same time that it claims the right to overrule local anti-discrimination standards. This is the only place I’ve ever lived where the primary business of state gov’t seemed to be enforcing the right to discriminate.

  29. NM,

    To go back to your point about federal money and hospitals {and to a lesser extent but of similar principal, student tuition and college money}, this is one of those few issues that transcends any specific issue of government policy {or college policy for that matter}.

    If the federal government wants to say that Catholic hospitals that receive federal tax revenues must provide contraceptive services as part of their employee insurance benefits, that is perfectly fair. But when the federal government classifies medicare benefits as federal funds, that puts us on a slippery slope.

    Currently the federal government classifies Social Security benefits, student aid like Pell Grants which go to students and a range of other monies that it controls as ‘federal funds’ just to ensure that they can use that control to manipulate recipients, even recipients not in violation of federal regulations. The end may be admirable but the cost is high in the sense that this approach allows the federal government to continue to absorb power not intended by Congress. And some day that power may be turned on institutions and groups that you value.

  30. Do you have a definition of ‘harassment’ that applies equally to all people regardless of race, gender, religion, looks and sexual preference?

    I do, but when it comes to applying such a definition in the real world, things aren’t always completely cut and dry. Like most things, in reality, there are gray areas. That’s life. And I agree with you, it makes rules and regulations of such things sometimes troublesome, but not unnecessary. That’s one of the reason our government is set up with a court system. If everything were black and white, there’d be little need for the courts, but the truth is there is very little in this world that is black and white.

    If a group of professors at Duke had taken out a newspaper ad demanding a fair trial for the lacrosse players, they would have been run out of the University on a rail.

    I hear alot of these “ifs.” Seems a bit unfair to make a supposition about what MIGHT have happened in a fictional scenario and then judge real world people by, not what they did, but what you think they might have done.

    And let that student organization make the rules for groups

    I can’t speak for any given school, but there are schools in which such non-discrimination policies (and other policies) for extra curricular activities ARE put in place by student government organizations. I’m having difficulty seeing how this suggestion is congruent with a state legislature enforcing a pro-discrimination policy on schools and their students.

  31. Dolphin,

    Please believe that I do not support that legislation for all sorts of reasons. Because I oppose Vanderbilt’s action, which I believe is at best motivated by the sort of slippery slope logic that results in irrational conclusions, does not make me an advocate for the legislature meddling.

    Far from it. The decision should be up to the individual school. Now the school should, as a recipient of state funds, be required to be consistent in its application of its rules. Vanderbilt is wrong on the merits but they have every right to make the call.

  32. Mark, it’s hard to argue with you when you just make shit up and then expect us all to pretend like it’s true. If conservative faculty had run an ad demanding a fair trial for the Duke lacrosse players, they certainly would not have been run out of town on a rail. Tenure works for everyone. Demanding that I accept otherwise, in the face of my knowledge of how higher ed works, is ridiculous.

    And, yes, I guess you did miss every single fucking discussion at the Chronicle or Inside Higher Ed about what the repercussions for the faculty that jumped to condemn the lacrosse players should be, but they happened.

    And, god damn, I am tired of this whole “you don’t know what’s in my heart!” bullshit. I’M NOT A CHRISTIAN. So, I don’t give a shit what’s in your heart. I’ll know you by your deeds. And if a dude’s deeds are racist–if, for instance, he calls the cops forty times complaining about black dudes or if he says “fucking coons” before he shoots an unarmed black kid–I’m going to think he’s racist.

    If he’s not racist, if that’s not what’s in his heart, then he can stop doing racist things.

    If kids want to be in groups that discriminate, then don’t take university money. Simple as that. Honestly, I’m with NM here. What decent person sits around arguing that they need to be able to discriminate against people without facing any negative consequences? Why is this even an argument that seems worth having? Why is this Tennessee’s position? It’s sad and hilarious.

    And yet, here we are.

    Back in my day, man, Christians wanted to invite you to all kinds of shit all the time, get you involved, on committees, just make you a part of the group before you even knew what was happening. And now they’re arguing for the right to keep out whoever they want while still getting government funds.

    Times have changed. But if you want your private enclave, pay for it yourself. Simple as that.

  33. Mark, the post was about indefensible legislation. If you agree that it’s bad legislation, what exactly are you arguing against? Against the common university policy that all students should have the opportunity to engage in the educational opportunities they pay for?

  34. I’m just trying to figure this out: does anyone remember what the original impetus for the whole issue at Vanderbilt was?

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