Nearly ten years ago, I helped organize a lawsuit against UNC-Chapel Hill. The university was forcing Christians to allow non-Christians to run their organizations. It took me 18 months to find a plaintiff but I did. In case you were wondering, we took the case to federal court and we won. For a time, freedom of association was preserved at North Carolina's flagship university.
But tyranny is a hungry beast ever in need of replenishing itself at the expense of weaker prey. This semester, the predator was once again a UNC public university campus. But I am pleased to report that with the help of Robert Shibley of the Foundation for Individual Rights in Education (FIRE) we were able to win another freedom of association case. Working together, we won the case without a lawsuit. And we did it in just twelve days.
I am reproducing the email correspondence from that case in order to help others who are interested in challenging universities that knowingly violate the First Amendment. I have departed from my traditional practice of naming names as a reward to the university for backing down and saving the taxpayers from unnecessary litigation. I hope you find the following exchange as well (as my interspersed remarks) helpful:
Ms. (Administrator), it has come to my attention that you have asked Ratio Christi to remove its requirement that officers be Christians.
I need to know immediately and in writing by what authority you propose to force them to abandon their belief requirements.
This matter is urgent and and I expect a prompt written response.
Thank you for the inquiry. We are in the process of working with these students as they pursue registration as a student organization. As the process is ongoing and in the beginning stages, our office has much work left to do with these students, including the review of Ratio Christi’s constitution, before any final decisions regarding their organizational status are made. We appreciate your concern in this matter and will continue to work with the students to welcome their organization to the campus community.
Ms. (Administrator), you have not answered my question. It has come to my attention that you have asked Ratio Christi to remove its requirement that officers be Christians.
I need to know immediately and in writing by what authority you propose to force them to abandon those requirements.
This matter is urgent and I expect a prompt written response. If no response is forthcoming, I will assume the following:
1. You have attempted to interfere with Ratio Christi's First Amendment right to determine the believe requirements of its officers.
2. You have done so on your own and not in accordance with any specific (university) policy, office, or individual administrative directive.
I have copied Robert Shibley of the Foundation for Individual Rights in Education. I have asked his organization to join my investigation into the matter. The chancellor is copied as well.
Our staff is still working with the students on the constitution for the establishment of the Ratio Christi student organization. Therefore, your inquiries are premature and your assumptions incorrect. I would encourage you to be patient as we work with these students to develop their organizational constitution and assist them in becoming a recognized student organization. Since the administrative review and process is not yet complete, your inquiries are premature and inappropriate. When the process is complete, I will be happy to respond to any issues you may have with the outcome.
Executive Director of Campus Life
(Mr. Administrator was then hit with a pubIic records request seeking the information his office refused to divulge. He wrote back in less than 48 hours).
Yesterday, (Ms. Administrator) and I met with representatives from the Ratio Christi student organization to discuss their organizational constitution and to assist them in becoming a recognized student organization. Unbeknownst to (Ms. Administrator) the (university) Office of Student Life has been reviewing its non-exclusionary membership clause in its student organization constitution template prior to your recent e-mails. During the meeting, I provided Ratio Christi with the following updated language for their inclusion in the constitution:
“ Student groups that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the group to students who, upon individual inquiry, affirm that they support the group and agree with its beliefs …”
As I mentioned to you in my previous correspondence, the administrative review and process is not yet complete, but I believe that any issues have been resolved. When the process is complete, I will be happy to respond to any issues you may have with the outcome.
Anyone reading the previous exchange can see what happened here. The university tried to deprive students of their First Amendment freedom of association rights by leveraging the power of their office to control funds through the group recognition process. When they were caught and called out on it, they responded with predictably self-righteous indignation. But one official legal document -a public records request suggesting the prospect of litigation - jolted them back into reality (and civility).
After some reflection on the matter, the university decided to move forward with a quick change in policy in order to avoid litigation. There is little reason to believe they were actually contemplating any sort of policy change "in (their) student organization constitution template prior to (my) recent e-mails." Administrators simply cannot be trusted. But that is not the point of the present column. The point of the column is rather obvious: to teach readers all it takes to change an unconstitutional policy is one maverick professor working in conjunction with one FIRE attorney.
The question is: where are all the maverick professors? And why are they so afraid of their employers despite the protection of tenure?