"Nondiscrimination" Policies

If your public college or university prohibits student groups from being officially recognized or receiving such benefits as meeting space or funding unless they sign a statement pledging not to discriminate, chances are that your campus has a “nondiscrimination” policy at work. This is an area of law that is only now being explored by the courts, but certain aspects of this issue are clear.

Many, if not most, universities and colleges have adopted comprehensive nondiscrimination policies. These policies generally prohibit discrimination based on race, religion, gender, ethnicity, nationality, disability, “sexual orientation,” or marital status, but some include categories like “gender identity” or “gender expression.”

Religious individuals and groups are most often accused of violating nondiscrimination policies relating to gender, sexuality, and religion. Many religious student groups are under attack because they allegedly have “discriminated” by using religion, religious doctrine, and religious belief as criteria in choosing their members or leaders. But nondiscrimination codes should not be used to limit the freedom of religious individuals and organizations to make religiously motivated decisions or to engage in religious speech.

Student organizations are private, voluntary groups. State universities and colleges that require student groups to sign or affirm “nondiscrimination” policies may be violating the students’ freedom of association. It would be unconstitutional, for example, for a state university to require a student organization to accept members or leaders who disagree with the basic tenets of the organization. TheCollege Democrats could not be compelled to have Republican students join as members. The campus vegetarians could not be compelled to have butchers and hunters join their ranks. If such groups could not organize around their common beliefs and purposes, there could be no organizations devoted to those beliefs and purposes. However, a university could almost certainly require that the ski club or chess club not discriminate on the basis of race or religion, because the prohibited categories do not bear on the purpose that caused the organizers to form the private group.

A university "nondiscrimination" policy raises significant and obvious First Amendment concerns when it violates a student group’s rights to freedom of speech, association, and the free exercise of religion. For example, a Jewish, Christian, Muslim, or atheist organization on campus should be permitted to require that its leaders be, respectively, Jewish, Christian, Muslim, or atheist, because Judaism, Christianity, Islam, or atheism is the set of ideas around which each group formed. To force a religious “nondiscrimination” policy on a religious group would drive the group off campus by preventing it from exercising its most foundational beliefs. If student groups cannot associate around a central message or belief system in the campus marketplace of ideas, then freedom of expression is in serious jeopardy.

Currently there are conflicting court decisions on this issue, and the law is in significant flux. If you are dealing with a nondiscrimination statement issue, it will require independent analysis by attorneys from Alliance Defending Freedom.

Remember, by signing the “nondiscrimination” policy at your university, your student group is effectively giving the university the right to tell you how to run your organization and how to define the membership and leadership standards for your group. Universities commonly use “nondiscrimination” policies to require Christian student groups to accept members or leaders who do not share the beliefs of the group. You have a constitutional right to associate with like-minded people, even based on religious beliefs.  By simply signing your university’s “nondiscrimination” policy, you are effectively giving it a trump card that it can pull at any time to completely change the nature of your group.