Freedom of Religious Expression in the University

Faculty Commons has always encouraged Christians in the university to publicly stand strong for Jesus Christ. With an increasingly secularized campus culture, we have seen the need to help professors clarify their legal freedoms, which are provided by our nation’s Constitution, to integrate their faith with their teaching and discipline.

In 1985, FC started the Free Speech Project under the direction of Dr. Scott Luley. With more than 20 years of experience dealing with legal issues, we can help a professor know what is legal and appropriate in communicating one’s faith in the university and what to do when faced with opposition.

“I have been obeying laws that don’t exist!”

These words express the frustration of one Christian professor after realizing he had been “intimidated” into silence on his campus.

Any mention of religion or God on campus is often met with reaction and/or intolerance. The phrase, “separation of church and state” is misused so much – even by Christians – that everyone fears its consequences and believes it in it’s most restrictive, and not constitutional, sense. It is used to restrict or exclude Christians and their viewpoints from campus dialogue because many – including Christians – do not understand that the Constitution guarantees freedom of religion not freedom from religion.

In Wallace v. Jaffree (1985), Supreme Court Justice Rehnquist noted in his dissent:

The wall of separation between ‘church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.

A common mistake Christians make is falsely assuming they should avoid criticism by keeping a low profile about their faith. This is neither God’s will nor good sense. For Christians, “free speech” is indeed not free. It always costs something.

The First Amendment

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

What does the First Amendment mean for a Christian professor?

• The state or government should act with accommodating neutrality toward religion. It does not mean a wall of separation between church and state.

• The state may not establish an official religion. The First Amendment was originally meant to protect the church from the state, not the state from the church (The Establishment Clause).

o Objective Neutrality – The state must be objectively neutral toward religion. The state must not “endorse” a religion, nor get “entangled” with a religion.
o Coercion – The burden is on the state not to coerce on religious issues. We often protect one atheist at a sporting event even if many others want to pray.

• The state must allow for the free exercise of one’s religion. (The Free Exercise Clause)

Note that there should always be a healthy tension between “free exercise” and “establishment.” State directed and required religious activities are often seen as an unconstitutional establishment of religion.

See John W. Whitehead’s book The Rights of Religious Persons (Crossway Books, 1991) for more information.

U.S. Supreme Court Cases

In recent years, the U.S. Supreme Court has looked at the type of forum to determine if free speech had been violated or should be regulated. There are three types of forums.

• Open Forums are public places, like public sidewalks. These are places where speech normally occurs and public speech has the highest level of protection by the courts.

• Closed Forums are not open to public speech. Private offices for example are closed forums.

• Limited Open Forums are closed forums that are opened for specific uses. For example, classrooms (which could be closed forums) are opened by universities as limited open forums where particular groups of people (e.g., students, faculty, and/or staff) use them for certain purposes. When speech is restricted by “time, place, and manner restrictions” in a limited open forum, the restrictions must be viewpoint neutral. If speech is restricted based on viewpoint, that restriction is viewpoint discrimination. This principle is key to cases involving access – to facilities, campus mail privileges, rooms, funding.

For example, a dean, department, etc. may pick the topic and location of an event for all who participate, but it cannot limit individuals or groups based on viewpoint if others have been accepted. It cannot limit the forum based on viewpoint. Remember, “What is good for one is good for all.”

Below is a summary of five U.S. Supreme Court cases that help define the law for Christian faculty, students, and campus Christian groups.

Campus Access

• Healy v. James (1972) Established the right of religious groups to be recognized as clubs on college campuses, even though they were affiliated with a national organization.

• Widmar v. Vincent (1981) Established the right of religious groups to have equal access to use university facilities. Also, in footnote #6, the Court ruled specifically that religious worship (praying, singing hymns, communion, etc.) is protected speech under the First Amendment.

Equal Access Act

• Lambs Chapel v. Center Moriches (1993) Once a publicly funded forum is opened to the public as a Limited Open Forum, it must not discriminate based on viewpoint. Example: a James Dobson film at a family series.

Funding and Other Assistance by the University

• Rosenberger v. University of Virginia (1995) The Student Activity Fund at universities is a Limited Open Forum, therefore students must pay and distribution of funds must be viewpoint neutral.

• Board of Regents v. Southworth (2000) Since distribution of Student Activities funds must be viewpoint neutral by objective standards, no student can 'opt out' of paying Student Activity fees. This case defined that a viewpoint neutral student activities fund disbursement process must be determined by objective standards. Student Council voting to disburse funds is not a viewpoint neutral process.

In summary, the U.S. Supreme Court's rulings confirm that viewpoint discrimination is a violation of the First Amendment Free Speech clause.

How Does This Apply to Private Universities?

There are substantial differences between public and private universities. Private schools are not required to abide by constitutional principles, at least as they involve free speech.

However, private schools are rarely completely private since they almost always take federal funding and therefore must respect free speech rights. In some states there are similar state laws.

In addition, faculty are protected in other ways by the provisions of Title VII (Civil Rights Act of 1964) and Title IX. And, depending on the state, there are applicable state employment laws. Those laws impact what schools can do to faculty – even at private schools. For example, FC has helped Christian faculty file complaints with the EEOC – Equal Employment Opportunity Commission.

Therefore, while the challenge is more difficult on private school campuses, and particularly so if the school is religious, Christian faculty are still protected.

What Do You Do When Trouble Strikes?

1. Before trouble strikes, prepare yourself. Host or attend the FC video workshop, Freedom of Religious Expression in the University. Pertinent information and guided discussion can help prevent many potential problems. Speakers on videotape include: Chuck Colson of Prison Fellowship, John Whitehead of The Rutherford Institute, Sam Ericsson of The Christian Legal Society, Dr. Walter Bradley, then Professor of Mechanical Engineering at Texas A&M University.

2. Always leave a paper trail. Casually ask that complaints be sent to you by email or letter. Say, “A hard copy will help me understand what the issues are so we can make changes where appropriate.” Or say, “Send me an email so I can inform others in the group and appropriate changes can be made.”

• Getting complaints in writing protects you from later disputes about who said what.
• Initiate and respond to everything in writing yourself – which prompts written replies from others.
• To avoid responding to charges that are so general they are meaningless, ask for clarification repeatedly if necessary. This forces accusers to be clear and often forces them to back off.

3. Respond quickly, thoughtfully, and decisively. Seek advice from FC or someone you trust with experience in free speech and Constitutional cases. Most attorneys have little or no Constitutional Law education or experience.

4. Don’t ignore the situation hoping trouble will go away. It rarely does – and often gets much worse if ignored.

5. Decide not to quit. Those who persevere avoid more conflict. Never quit.

6. Be sure your peers are “on board” before you do anything publicly. You do not want to fight anything alone. If other Christian faculty don’t agree with you, you may not have a good case.

7. Contact FC since each case is different. Circumstances vary greatly and that means broad guidelines are often wrong when specifics are considered. We have an advisory group of constitutional experts and attorneys willing to help. For more information, contact FC staff member and director of FC’s Free Speech Project, Dr.Scott Luley.

To host a Freedom of Religious Expression in the University workshop, contact your nearest FC staff member or the FC National Office.