SWJ IVCF ruling

STUDENT-WIDE JUDICIARY UNIVERSITY AT BUFFALO _________________ INTERVARSITY CHRISTIAN FELLOWSHIP,

Petitioner, v.

UNIVERSITY AT BUFFALO UNDERGRADUATE STUDENT ASSOCIATION SENATE,

Respondent.

Argued: July 28th, 2012 Decided and Filed: July 28th, 2012 Before: STEBBINS, C.J., AYYAR, J., and WASHINGTON, J., Panel Judges. _________________ REPRESENTATIVES ARGUED: Nicholas C. D’Angelo, PRESIDENT, University at Buffalo InterVarsity Christian Fellowship, for Petitioner.

Darwinson Valdez, CHAIR, University at Buffalo Student Association Senate, for Respondent.

ON BRIEF: Nicholas C. D’Angelo, PRESIDENT, University at Buffalo InterVarsity Christian Fellowship, for Petitioner.

Darwinson Valdez, CHAIR, University at Buffalo Student Association Senate, for Respondent.

IVCF v. STUDENT ASSC. SENATE

Introduction Last year, after a Christian club, the InterVarsity Christian Fellowship (“IVCF”), asked an undergraduate officer-elect to resign because of his refusal to sign a pledge affirming the Bible as God’s word, the Undergraduate Student Association (“S.A.”) began redoubling its efforts to make the more than 100 student organizations on campus comply with the University at Buffalo (“U.B.”) nondiscrimination policy.

That policy does not allow IVCF, or any other student organization, to bar someone from membership on the basis of religious belief. The S.A. Senate (“Senate”) derecognized IVCF, after the club refused to change their decades-long policy of requiring students elected to leadership positions within the club to sign the aforementioned assurance. An organization formed to express religious beliefs was effectively forbidden.

As shown in the opinion (beginning on pg. 3), there is much pertinent history.

In the present case, there were several issues before our court: First, is membership the same as leadership? IVCF’s constitution requires officers – not members – to sign what is effectively a “basis of faith” statement. U.B.’s policy says an organization cannot exclude any student from becoming a member. IVCF did not do that; IVCF, as the Senate’s investigative committee recognized, has no restrictive membership clause.

Thus, the Senate made their decision based on an erroneous interpretation of the policy.

According to the S.A. constitution, the Senate may “[g]rant or deny Student Association recognition to clubs/organizations which request recognition according to such criteria as the Senate may establish from time to time, so long as such criteria and the decision to grant/deny recognition to a student club or organization

is not determined based on the political viewpoints of such student club/organization requesting recognition or its members, or based upon any other legally impermissible criteria.” (Emphasis our own.)

The S.A. constitution effectively prohibits viewpoint discrimination in the Senate’s determining of whether a club merits initial recognition (and therefore, continued recognition). Is forcing student organizations to abandon core leadership criteria to conform to nondiscrimination policies viewpoint discrimination? Further, is limiting group leadership positions to those who share the group’s founding belief or ideology expressive activity fully protected by the First Amendment? These questions, among others, were the more challenging issues before the court.

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Held: Grounding our analysis in the required nexus between IVCF’s purpose for existence and its desired exclusionary principles, we find in favor of InterVarsity, restoring to them the status of an officially recognized club in the Undergraduate Student Association with all due rights to be granted immediately. On the question of whether the government must subsidize an organization to the same extent that it subsidizes others, the answer is generally “no,” if the subsidy decision is reasonable and viewpoint-neutral; see, for instance, Regan v. Taxation with Representation.

Therefore, while IVCF is free to operate, the student government need not subsidize their right to exist, just as our national and state government need not subsidize the rights to abortion, private schooling, or political expression about candidates or about legislation. Further, at this point in the fiscal year, it is impossible for the court to request IVCF be funded through S.A. during the Fall 2012 and Spring 2013 semesters, as it is our understanding that all club appropriations have been earmarked. IVCF is allowed, as a recognized club, to submit a budget request to the Treasurer of the Student Association by the second Friday in February1, as outlined in the S.A. constitution. As club office space has been determined, we will not request groups be re-assigned rooms, though IVCF is certainly allowed to seek available accommodations within the Student Union.

1

Should this date be modified, InterVarsity leadership is to be given notice and allowed to file a request with the Student Association by the new deadline.

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IVCF v. STUDENT ASSC. SENATE CHIEF JUSTICE STEBBINS delivered the opinion of the SWJ.

The mischief of the Senate violated federal constitutional associational rights because the senators did not understand, among other things, post hoc rationalizations, viewpoint-based discrimination, distinctions among kinds of “discrimination,” ends-based justifications, religious autonomy, associational freedom, and so on. They relied on two inartfully crafted documents: the S.A. constitution and U.B.’s code of conduct; in doing so, they spent hundreds of hours on this case, because many of them care very passionately about a particular cause.

A university creates, with their decision to allow a broad range of voluntary student groups to use its facilities and be recognized as campus groups, an affirmative right for clubs to exist in association with the student government. That is the principle for which Widmar v. Vincent and Rosenberger v. Rectors both stand.

The question here is whether that right to be recognized can be conditioned on a group’s leadership practices. Existing First Amendment doctrine supports the view that religious organizations can set the qualifications for their own members and leaders at public institutions. Relevant doctrine also indicates that, as a facial challenge, some “all-comers” policies may survive as constitutional; however, it is clear that there is not truly a comparable policy in our case, and even if there were, it is certainly being applied unevenly (the Senate de-recognized IVCF, and then said that they would examine other club constitutions at a later date).

Absolutely nothing at all in the Christian Legal Society v. Martinez case, which the Senate used, in part, as justification for their action, or in any other court decision, requires a state university to apply a nondiscrimination policy in such a way as to interfere with a voluntary student group’s leadership decisions. U.B. is free to allow student religious groups to maintain their distinctive religious identities. This is a (slightly, but importantly) different situation from Martinez, which had an across-the-board “all-comers” policy. (This will be discussed at more length later.) Not to allow a Christian group to maintain Christian standards of faith and conduct for the group’s leadership risks a First Amendment lawsuit, and the result of that lawsuit is not foreordained by the Martinez case.

The fact that a public school or university provides material or symbolic support to student organizations within the school’s limited public forum does not diminish those organizations’ protections within that forum. Moreover, when a university operates a limited public forum, it may not discriminate against speech on the basis of the viewpoint it expresses – in this case, against religious speech.

The Christian identities of the leaders of IVCF implicate the group’s speech (just as, for instance, a group’s decision to advocate for the election of candidates implicates that group’s speech).

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In an undated letter from Student Association lawyer Joshua Korman (of Brady Korman PLLC), Mr. Korman wrote to former S.A. President Datz on the issue of whether the Senate would be acting improperly should it choose to derecognize IVCF: “It is important to note that prohibiting a student from participating in a club based upon religion, sexual orientation or any other impermissible criteria, is not a ‘political viewpoint’ within the meaning of the law – it is simply impermissible discrimination in violation of the University policy.”

What Mr. Korman called, inappositely, “impermissible” discrimination is not illegal; rather, it is constitutionally protected First Amendment activity. Whereas it would be wrong for the S.A. to prefer one religious club over another, when persons and religious groups set criterion for leadership, it is free exercise of religion. Preventing groups from discriminating on the basis of shared beliefs is not a compelling governmental interest; it is not even a legitimate government interest.

Consider a student who votes for the Jewish candidate to be the President of the Jewish student association. The student believes the other candidate in the race, a Oneness Pentecostal, is generally more capable, but she thinks that someone of Jewish faith should lead the Jewish student organization. As a normative matter, nothing is wrong with that preference. It is neither immoral nor unjust, nor is it invidious discrimination. However, student organizations that do not object to formal nondiscrimination policies may in fact endorse positions regarding gender relations and sexual orientation that are highly offensive or discriminatory to other students, and perhaps directly contrary to the institution’s stated nondiscrimination values. For instance, a student group which does not formally discriminate based on any protected status may advance a substantive position regarding sex roles and sexual orientation that is directly contrary to a school’s commitment to equal opportunity for women and sexual minorities. The group’s formal inclusive membership policy could be accompanied by a relentless pattern of heterosexual male leadership, anti-woman and anti-LGBT speakers and a hostile atmosphere toward women and LGBT students. If nondiscrimination really only means formal policies of membership and leadership inclusion, even when accompanied by habits, patterns, policies and cultures of discrimination and exclusion, it clearly does not mean much. Providing a school’s blessing, sanction, approval or recognition to a group that actively promotes sex stereotypes and undermines LGBT rights simply because the group does not formally discriminate regarding membership or leadership only serves to promote a watered-down notion of discrimination and equality.

We cannot expect student organizations to ignore their defining purposes in selecting officers, and the pretense that we do has caused an unnecessary and harmful battle that pits ‘equality’ against the First Amendment rights of students.

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In what follows, I give a detailed summary explaining the rationale upon which our decision rests. Let us be clear, we intend for this document to serve as precedent should any similar cases arise out of the Student Association.

Ratio decidendi I. It is not discrimination for religious groups to require their leaders to agree with their religious beliefs.

A. It is common sense, not discrimination, for a religious group to want its leaders to agree with its core beliefs.

1. Leaders shape a group’s message and serve as the campus representatives of the group. Religious groups define themselves by what they believe, or don’t believe. In order to further their religious message, their spokespersons (i.e., their leaders) need to agree with the group’s message. Religious groups whose leaders do not agree with their beliefs are considered to be hypocritical.

2. This is a common historical practice of all faiths, including the Christian faith. For nearly two thousand years, the Christian Church has defined itself by adopting creeds, or statements of faith, that set out what it believes about the nature of God, the deity of Jesus Christ and the authenticity of the Bible.

B. The right of religious groups to select their leaders according to their religious beliefs has long been protected by federal law as a basic component of religious liberty. See Letter of Professor Douglas Laycock (and five other religious liberty scholars) to Chancellor Zeppos, December 2, 2012.

1. Supreme Court 2012 Hosanna-Tabor Decision: This year, the Supreme Court unanimously held that churches and church schools were exempt from nondiscrimination laws in their selection of their leaders. Hosanna-Tabor

Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). The Court found that the First Amendment

“precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers” because “members of a religious group put their faith in the hands of their ministers.” Id. at 705. The government is not to interfere in a religious group’s “internal governance” including “the selection of those who will personify its beliefs.” Id. at 706. “[T]he Free Exercise Clause . . . protects a religious group’s right to shape its own faith and mission through its appointments.” Id. Similarly, “[a]ccording the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits 5

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government involvement in such ecclesiastical decisions.” Id. Noting that “the text of the First Amendment itself . . . gives special solicitude to the rights of religious organizations,” the nine Justices rejected “the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” Id. The Court concluded: “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.” Id. 2. Federal Title VII: In the leading federal nondiscrimination law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, Congress prohibited religious discrimination in employment generally, while simultaneously protecting religious organizations’ right to hire employees according to their religious beliefs.

42 U.S.C. § 2000e-1(a) (religious associations may employ “individuals of a particular religion to perform work connected with the carrying on” of the religious associations’ activities); 42 U.S.C. § 2000e-2(e)(2) (religious school may “employ employees of a particular religion”); 42 U.S.C. § 2000e-2(e)(1) (employer may hire on the basis of religion if it “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise”).

In 1987, the Supreme Court upheld the constitutionality of Title VII’s exemption against an Establishment Clause challenge. Justice Brennan, the leading liberal justice, wrote a concurring opinion in which he approvingly explained why religious groups need such an exemption: We are willing to countenance the [religious group’s] imposition of [a religious] condition because we deem it vital that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.

Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 342-43 (1987) (Brennan, J. concurring). Justice Brennan insisted that “religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.” Id. at 841-42 (quotation marks and punctuation omitted).

Buffalo’s nondiscrimination policy itself refers to Title VII as one of its legal bases.

This is one reason why the U.B. policy should be interpreted to include a Title VIIlike exemption for religious organizations’ choice of their leaders according to their religious beliefs.

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3. Second Circuit Hsu Decision: The federal Second Circuit Court of Appeals (whose rulings apply to New York, Vermont and Connecticut) has held that a high school cannot refuse to recognize a religious student group because it has religious criteria for its leaders. Hsu v. Roslyn Union Free School District, 85 F.3d 839 (2d Cir. 1996). In 1981, the United States Supreme Court ruled that the First Amendment requires public universities to allow religious student groups to meet on campus for Bible studies, prayer, worship, and other religious speech. In 1984, Congress applied the Widmar rule to public secondary schools to protect the right of religious student groups to meet on public secondary school campuses for Bible study, prayer, worship, and other religious speech on the same basis as other student groups are allowed to meet. 20 U.S.C. §§ 4071-4074.

In Hsu, a New York school district claimed that it did not have to let a religious student group meet because it had a nondiscrimination policy which prohibited student groups from meeting if they discriminated on any basis. The school district claimed that a religious group’s requirement that its leaders share its religious beliefs violated the nondiscrimination policy and, therefore, the school could refuse to let the religious student group meet on campus.

In an explanation of the case that is a spot-on description of the situation between IVCF and the S.A., the Second Circuit summarized the issue as follows: The students insisted on a club charter provision that only Christians could be club officers; the school refused recognition on the sole ground that this condition violated the school policy prohibiting all student groups from discriminating on the basis of (among other things) religion.

85 F.3d at 848. Specifically, the club required that “[a]ccepting Jesus Christ as savior is a requirement for all officers.” Id. at 850-51. The school insisted that the club would not be recognized unless it put the following provision in its constitution, again an echo of S.A.’s treatment of IVCF: “Membership in the Club shall be limited to Roslyn High School students, and no student shall be discriminated against or excluded from participating in or having access to the Club, including without limitation entitlement to be an officer of the Club, on the basis of creed or religion.” Id. at 851.

The Second Circuit ruled that “the club’s Christian officer requirement, as applied to some of the club’s officers, is essential to the expressive content of the meetings and to the group’s preservation of its purpose and identity.” Id. at 848. The court determined that “religious discrimination by a religious group is ‘vital’ to the group’s religious mission and the ability of the group to define itself on the basis of shared faith.” Id. at 869. The court accepted the religious group’s claim that 7

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“having Christian leaders necessarily shapes the content of the religious speech at their meetings, because the nature and quality of the speech at the meetings is dependent upon the religious commitment of the officers.” Id. at 857. The court noted that “[g]uaranteeing” that those officers whose “duties consist of leading Christian prayers and devotions and safeguarding the ‘spiritual content’ of the meetings” are “dedicated Christians assures that the Club’s programs, in which any student is of course free to participate, will be imbued with certain qualities of commitment and spirituality.” Id. at 858.

The Second Circuit explained that the school’s “focus on the even application of its nondiscrimination rule misses the point.” Id. at 860. Instead “exemptions from neutrally applicable rules that impede one or another club from expressing the beliefs that it was formed to express may be required if a school is to provide ‘equal access.’” Id. The court comprehended that the “Club’s leadership eligibility requirement on the basis of religion is therefore similar to a chess club’s eligibility requirement based on chess,” and that “one of the principal ways in which many extracurricular clubs typically define themselves [is] by requiring that their leaders show a firm commitment to the club’s cause.” Id. Acknowledging that most groups require their “officers have a certain level of commitment to the program and purpose of the Club,” the court explained: Because that program and purpose are religious and sectarian, the requisite level of commitment and belief is quite naturally expressed in terms of religious belief. Equal treatment should mean that the [religious group] enjoys the same latitude that other clubs may have in determining who is qualified to lead the Club. Thus, just as a secular club may protect its character by restricting eligibility for leadership to those who show themselves committed to the cause, the [religious

students] may protect their ability to hold Christian Bible meetings by including the leadership provision in the club’s constitution.

Id. at 860-61 (emphasis added).

Indeed, “exempting the Club from the nondiscrimination policy simply puts the Club on the same footing as non-religious clubs who make distinctions among their members on the basis of commitment.” Id. at 865.

The Second Circuit rejected the school’s argument that its “nondiscrimination policy ‘does not require’ that a “non-Christian” lead the club because “members are free to elect whomever they believe will be the best leader and may cast their vote according to their conscience.” Id. at 861. The election argument is a catch-22 for the school’s discrimination argument because, as the court explained: More importantly, telling the Club to rely on elections to assure that its leaders are Christians contemplates that the Club will engage. . . .

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in the same type of religious discrimination embodied in the Club’s constitution. The School cannot have it both ways. If it insists on outlawing all religious discrimination, including clubs with discriminatory constitutions, it can scarcely recognize clubs [whose members] elect officers on the basis of their religion.

Although the decision directly involved a “statutory free speech right” under the Equal Access Act, the Second Circuit liberally borrowed First Amendment principles to protect the religious group’s right to have religious leaders. 85 F.3d at 854. The Second Circuit also applied the Amos rationale even though “Amos was considering allowances made for a church, which of course the [religious student club] is not. But this Club is still a religious community that has the same need to define itself as other religious communities, notwithstanding its reliance on a public school to sanction its existence and to give it a roof.” 85 F.3d at 869. For the same reason, the reasoning of Hosanna-Tabor is persuasive for religious student groups’ leadership decisions.

The Court distinguished between a religious student group that was trying to exclude “solely for reasons of hostility or cliquishness” and a religious student group whose “decision to exclude is made in order to foster the group’s shared interest in particular speech” and “to guarantee that meetings include the desired worship and observance.” Id. at 859. IVCF welcomes all students to participate, which indicates it is neither cliquish nor hostile to persons who do not share its core religious beliefs. The court explained why the chess club could not exclude persons on the basis of religion while the Christian club could because the exclusion “serves a legitimate self-definitional goal for the group.” Id. at 861 n.20. The court expended considerable space explaining why allowing religious groups to have religious leaders is not unprotected discrimination and does not prevent the school from prohibiting genuine invidious discrimination. Id. at 868-69.

II. It is discrimination for a public university to exclude a religious student group because of its religious beliefs, including its religious belief that its Bible studies, prayer, and worship must be led by leaders who hold the group’s core religious beliefs.

A. Nondiscrimination policies serve important purposes. They are intended to protect religious students, not punish them for being religious.

1. For this reason, most universities have not adopted a misinterpretation of “religious discrimination” that leads to the extreme result of excluding religious groups for requiring their leaders share their religious beliefs. a. As Joan Howarth, Dean of the Michigan State University College of Law, has explained, “the application of the nondiscrimination policy against faith9

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based groups undermines the very purpose of the nondiscrimination policy: protecting religious freedom.” Joan Howarth, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U.C. Davis L. Rev. 889, 914 (2009). b. By way of a model policy, the University of Florida’s nondiscrimination policy includes a sentence that reads: “A student organization whose primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization.” Other universities have similar provisions.

2. This is the way S.A. has always interpreted its policy until this past year. The status quo has been that religious student groups may require their leaders share their religious beliefs. IVCF has had this requirement for decades without being told it violates the policy – because it does not violate the policy as it has always been understood.

3. Indeed the policy does not apply to leadership but only membership criteria. a. The Senate’s investigative committee had no authority to reinterpret the policy to apply to leadership. The fact that the investigative committee was creating policy out of whole cloth is also seen in its adding a prohibition on “political belief” as well, which has no basis in our university’s nondiscrimination policy, as written. b. It is fundamentally unfair to IVCF, and a violation of due process, to re-interpret the policy to mean something other than what it says on its face. Such a re-interpretation fails to give IVCF, a national organization, sufficient notice of the conduct that the policy prohibits. This is especially true when IVCF is being punished for having religious requirements for leaders that it has had, without a problem, for decades. c. Rules made in an ad hoc manner by an investigative committee cannot be validly applied to punish a student group. The rules must be enacted and applied by S.A. in accordance with its written bylaws in order to provide groups with due process. d. Even if the policy were ambiguous, which it is not, it is a fundamental canon of constitutional adjudication to avoid constitutional questions if possible by interpreting any statute to avoid constitutional problems, particularly First Amendment problems. For that reason, the policy should not be read to apply to religious groups’ leadership decisions.

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1) As the Second Circuit noted in Hsu, “[c]onsistent with our practice of avoiding constitutional questions wherever possible, we begin with the [religious students’] statutory claims.” 85 F.3d at 854, citing Jean v. Nelson, 472 U.S. 846, 854 (1985) (it is ‘a fundamental rule of judicial restraint’ that ‘[p]rior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision’). This is true in the area of religious liberty, as the Supreme Court explained in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (interpreting ambiguous federal labor law to not assert jurisdiction over Catholic schools in order to avoid Establishment Clause issues).

B. There is a constitutionally significant difference between an “all-comers policy” and a “nondiscrimination policy,” and for that reason, the Supreme Court’s decision in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), is inapplicable to our situation.

1. The Court explicitly limited its decision in Martinez to an unusual policy, unique to Hastings College of the Law, that required all student groups to allow any student to be a member and leader of the group, regardless of whether the student agreed with – or actively opposed – the values, beliefs, or speech of the group. Moreover, the Court held it was not enough for a university to adopt an allcomers policy; the policy must actually be uniformly applied to all student groups.

130 S. Ct. at 2995.2

Justice Stevens, who has subsequently retired, was the only justice who expressed the view that a written nondiscrimination policy could be constitutionally applied to religious student groups’ selection of leaders, in a concurrence that began by observing that the Court “confines its discussion to the narrow issue” of the all-comers policy. Id. at 2995 (Stevens, J., concurring). Justice Kennedy concurred with the majority but emphasized that the decision was only concerned with an all-comers policy. Id. at 2999 (Kennedy, J., concurring). At oral argument, Justice Kennedy expressed concern that application of an enumerated nondiscrimination policy to a religious group’s selection of leaders would be constitutionally problematic. Tr. of Oral Arg. 6.

2

Commenting on Martinez, a senior vice president and general counsel for claims management at United Educators Insurance and “a prominent adviser to colleges on issues related to legal risk” cautioned university counsel that they should “not be lulled into thinking their policies on student groups are immune to legal challenges based on the U.S. Supreme Court’s decision.” According to The Chronicle: The ruling … focused on a type of policy … found at only a minority of colleges: an “accept all comers” policy requiring any student group seeking official recognition to be open to anyone who wishes to join. More common at colleges … is a policy of allowing student groups to have requirements for membership and leadership as long as those requirements are not discriminatory.

Peter Schmidt, Ruling Is Unlikely to End Litigation over Policies on Student Groups, Chron. Higher Educ. (June 30, 2010), http://chronicle.com/article/Many-Colleges-Student-Group/66101/.

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2. The Court plainly stated that its decision did not apply to a nondiscrimination policy that prohibited specific enumerated types of discrimination. a. The narrow majority emphasized that “[t]his opinion, therefore, considers only whether conditioning access to a student organization forum on compliance with an all-comers policy” is permissible and does not address a written nondiscrimination policy that protects specific, enumerated classes. Id. at 2984 (emphasis added). b. Justice Ginsburg emphasized that the policy under review was “one requiring all student groups to accept all comers.” Id. at 2993 (original emphasis).

The Ninth Circuit Court of Appeals in Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011), agreed that the Supreme Court in Martinez “expressly declined to address whether [its] holdings would extend to a narrower nondiscrimination policy that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion, and sexual orientation.” Id. at 795, citing Martinez, 130 S. Ct. at 2982, 2984. In his concurring opinion, Judge Ripple stressed that “this case is not controlled by the majority opinion in Christian Legal Society” and that the Supreme Court “explicitly reserved” the issue in Martinez. 648 F.3d at 805 (Ripple, concurring). c.

3. The U.B. policy is a straightforward nondiscrimination policy that prohibits specific enumerated types of discrimination.

C. The application of a nondiscrimination policy, to prevent religious clubs from limiting leadership, would be unconstitutional viewpoint discrimination.

1. In Martinez, four Supreme Court justices explicitly stated that a nondiscrimination policy cannot be constitutionally applied to religious groups’ choice of leaders and members. Christian Legal Society v. Martinez, 130 S. Ct. 2971, 3009-13 (2010) (Alito, J., dissenting, joined by Roberts, C.J., Scalia, J., and Thomas, J.). These justices explained that such an application of a nondiscrimination policy would be viewpoint discriminatory.

2. In his concurrence in Alpha Delta Chi, Judge Ripple expanded on the viewpoint discrimination problem, clarifying that: Under this policy, most clubs can limit their membership to those who share a common purpose or view: Vegan students, who believe that the institution is not accommodating adequately their dietary preferences, may form a student group restricted to vegans and, under the policy, 12

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gain official recognition. Clubs whose memberships are defined by issues involving “protected” categories, however, are required to welcome into their ranks and leadership those who do not share the group's perspective: Homosexual students, who have suffered. . . . discrimination or ostracism may not both limit their membership to homosexuals and enjoy the benefits of official recognition. The policy dilutes the ability of students who fall into “protected” categories to band together for mutual support and discourse.

For many groups, the intrusive burden established by this requirement can be assuaged partially by defining the group or membership to include those who, although they do not share the dominant, immutable characteristic, otherwise sympathize with the group’s views. Most groups dedicated to forwarding the rights of a “protected” group are able to couch their membership requirements in terms of shared beliefs, as opposed to shared status.

Religious students, however, do not have this luxury – their shared beliefs coincide with their shared status. They cannot otherwise define themselves and not run afoul of the nondiscrimination policy. The Catholic Newman Center cannot restrict its leadership – those who organize and lead weekly worship services – to members in good standing of the Catholic Church without violating the policy. Groups whose main purpose is to engage in the exercise of religious freedoms do not possess the same means of accommodating the heavy hand of the State.

The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices and discourses that are religiously based. While those who espouse other causes may control their membership and come together for mutual support, others, including those exercising one of our most fundamental liberties—the right to free exercise of one's religion—cannot, at least on equal terms.

Alpha Delta Chi, 648 F.3d 805-806 (Ripple, J., concurring). Even though it emphasized that the Supreme Court in Martinez had dealt with an all-comers policy rather than a nondiscrimination policy, the Ninth Circuit allowed application of a nondiscrimination policy to religious groups. The panel believed it was bound by a prior Ninth Circuit decision. It remanded the case for evidence that the policy had been uniformly applied to all groups.

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3. The Seventh Circuit Court of Appeals’ decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), held that a university’s application of a nondiscrimination policy to a religious student group was unconstitutional, stating it had “no difficulty concluding that [a university’s] application of its nondiscrimination policies in this way burdens CLS's ability to express its ideas.”

Id. at 863.

The university allowed student groups to adopt “membership eligibility, standards, and requirements” in their constitutions. Student Organization Manual, p. 17.

Student groups “may choose to set higher standards for membership” and officers than those required by the university. Id. To prohibit religious groups from adopting criteria for leaders related to the goals of the organization and purposes of the activities, while allowing other student groups to do so, is unconstitutional viewpoint discrimination and violates the students’ free speech rights.

D. Under Martinez, even an “all-comers” policy may be viewpoint discriminatory if it is applied to religious groups but not to all groups without exception.

1. In Martinez, the Court held it was not enough for a university to adopt an all-comers policy. A university must actually apply the policy uniformly, without exception, to all student groups. 130 S. Ct. at 2995. a. The Court remanded the Martinez case for further consideration of whether the all-comers policy had been uniformly or “selectively enforce[d].” Id. Justice Ginsburg emphasized that the policy under review was “one requiring all student groups to accept all comers.” Id. at 2993 (original emphasis). b. Martinez is clear that if a university allows any exemption to its allcomers policy, it cannot deny an exemption to a religious group. 130 S. Ct. at 2995; id. at 2999 (Kennedy, J., concurring). c. All-comers policies are truly rare because they must be applied without exception to all student groups and prevent all groups from choosing leaders who agree with the groups’ particular perspectives. Or as the Court observed in Martinez, the advisability of Hastings’ policy does not control its permissibility.” 130 S. Ct. at 2992. d. In Alpha Delta Chi v. Reed, the Ninth Circuit also remanded the case to determine whether the policy was applied without exception to all groups. e. The Supreme Court prohibits the government from exempting nonreligious groups’ conduct from a law’s application but then denying an exemption to religious groups for similar conduct. “[I]n circumstances in which 14

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individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of “religious hardship” without compelling reason.’” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 537 (1993), quoting Employment Div. v. Smith, 494 U.S. 872, 884 (1990).

2. U.B. does not apply its policy to all groups without exception. a. The U.B. policy specifically states that student organizations “may establish additional requirements for office or membership so long as they are not unlawfully discriminatory.”

1) This demonstrates that the policy is not an all-comers policy.

2) This demonstrates that the policy permits viewpoint discrimination among groups because non-religious groups may have criteria for their leaders based on the groups’ social, political, and other beliefs, but not religious beliefs. This is impermissible viewpoint discrimination. Lamb’s Chapel v.

Center Moriches School District, 393 U.S. 508 (1993).

3) The Senate investigative committee’s unsupported and unauthorized attempt to expand the policy to prohibit “political beliefs” was likely done in order to avoid viewpoint discrimination, which merely indicates that viewpoint discrimination is occurring because no policy actually prevents a political group from choosing its leaders according to their political beliefs. b. The existence of single-sex sororities and fraternities, a cappella groups, and intramural sports teams demonstrates that U.B. is not applying an allcomers policy and is not applying its nondiscrimination policy without exception.

1) If U.B. does not abandon its current exemption for fraternities and sororities to select members according to sex our policy is being enforced as to religious groups but not being uniformly enforced as to all groups. This is impermissible viewpoint discrimination.

2) Besides ending selection of members and leaders on the basis of sex, an all-comers policy would require fraternities and sororities to adopt a “first-come, first-pledge” selection process because all groups must be open to all students.

3) Our nondiscrimination policy on its face demonstrates that it is not being uniformly enforced as to all student groups because it prohibits sex discrimination “except as exempted by Federal Regulations,” presumably a reference to Title IX. 15

IVCF v. STUDENT ASSC. SENATE

a) Universities frequently invoke Title IX’s exemption for fraternities and sororities, but that is a red herring. Title IX gives fraternities and sororities an exemption only from Title IX itself, which prohibits sex discrimination in higher education. It does not give fraternities and sororities a blanket exemption from all nondiscrimination laws or policies, including a university’s own nondiscrimination policy or an all-comers policy. b) Therefore, university administration is choosing to exempt fraternities and sororities from its nondiscrimination policy’s prohibition on sex discrimination. Title IX does not require such an exemption. c) But why would a university choose to give fraternities and sororities a broad exemption to permit sex discrimination in their membership and leadership, while denying religious organizations a narrow exemption to choose their leaders according to their religious beliefs? i. Is U.B. really saying that sex discrimination is not important? ii. Why do the Greeks deserve more consideration than the religious students? d) Under Lukumi, if the university gives exemptions for nonreligious conduct, it must give an exemption for analogous religious conduct, or the university is violating the religious students’ free exercise rights.

It is so ordered.

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