Ms. Catalano’s Complaint

David French

On a Thursday night in October 2000 I accompanied a small group of Christian students to what I thought would be a kangaroo court.

The place was Tufts University, and the charge was discrimination. The judges in the student court had largely been elected on a platform of tossing my client off campus. The deck, quite simply, was stacked.

The previous fall a Tufts junior named Julie Catalano charged the Tufts Christian Fellowship (TCF), an evangelical Christian student group affiliated with InterVarsity Christian Fellowship, with sexual orientation discrimination. Ms. Catalano was a longtime member and respected leader of the group.

For almost three full years Ms. Catalano had regularly attended group meetings and steadily rose through the ranks of the TCF until she was a contender to serve as the group’s “moderator”—president—for her senior year, a position selected by the outgoing leaders based on the various candidates’ perceived Christian maturity and leadership abilities. TCF was not a democracy, but instead a group that tried intentionally and deliberately to elevate key leaders based not on their popularity, but on their fidelity to the group’s “Doctrinal Purpose.”

Early in her freshman year, Ms. Catalano told TCF leaders that she struggled with her sexuality and was indeed attracted to women. At the same time, however, she proclaimed fidelity to orthodox Christian teachings regarding sexual activity, believing that sexual relationships were reserved for marriage, and marriage was the union of one man and one woman.

By her junior year, however, Ms. Catalano had changed her views. She no longer believed orthodox Christian teachings and proclaimed her desire to enter into same-sex relationships. Faced with this change of beliefs, TCF leaders regretfully informed Ms. Catalano that she was no longer eligible for leadership, although she was more than welcome to remain a member of the group.

Ms. Catalano immediately filed a sexual orientation discrimination complaint, touching off a local controversy that soon went national.1 Anti-Christian sentiment seemed to sweep the Tufts campus. Christian students found themselves ostracized, often walking on campus sidewalks covered with angry “chalkings” declaring Christians to be bigots, and enduring many catcalls and classroom confrontations.

By the time of the October 2000 hearing, even the student judiciary seemed overtly biased; elections had been held between the date of Ms. Catalano’s complaint and the final hearing, and many of the judiciary officers had loudly declared their allegiance to the nondiscrimination policy.

The worst moments occurred in the hour before the hearing itself, when TCF leaders and I were trapped outside the locked hearing room, surrounded by almost one hundred protestors who had darkened the hall and were pressing against the TCF representatives, trying to physically intimidate them before the hearing. Two of the female students were visibly shaking and crying, afraid of their own classmates.

But TCF remained on campus.2 A holistic argument—one that relied not just on the letter of the law (the university’s nondiscrimination policy) but also TCF’s long commitment to campus service—prevailed. After all, university nondiscrimination policies—which had existed for decades—were not drafted for the purpose of ejecting Christians off campus. They were being distorted well beyond their original meaning and purpose.

But TCF’s argument prevailed only for a time.

The Tufts case touched off a wave of cases—cases based not on student complaints of discrimination, as in the Tufts case (for those proved to be exceedingly rare ) but instead on campus administrators proactively seeking out Christian groups and demanding that they pledge not to apply religious criteria when selecting leaders, thus perverting religious nondiscrimination policies from their intended, protective, purpose and turning them into weapons of ideological warfare against disfavored groups.

In one five-year span following the TCF hearing, I was personally engaged at more than forty campuses, providing counsel, sending demand letters, and when necessary filing suit. The defensive response to this attack on campus free association can be summed up as follows: litigate our way to liberty.

The first case was at Rutgers, where the InterVarsity Multi-Ethnic Christian Fellowship was expelled from campus. Cases in North Carolina, Florida, California, Pennsylvania, and Illinois soon followed. The goals were simple: Win or keep appealing until the Supreme Court settled the issue.

The appeal (and risks) of this litigation-focused strategy were obvious. Through litigation the issue could potentially be decisively settled. A favorable ruling for campus access and freedom of association would mean the end of public university discrimination against Christian groups and would also deal a lethal blow even to private university discrimination, as fewer private, secular schools would consciously adopt policies that would be unlawful at public universities.

In other words, a favorable Supreme Court ruling would be the ultimate weapon against censorship and repression.

The risks were equally obvious. A loss would not only cement the exclusion of Christian groups at the campus at issue, it would also embolden administrators at public and private universities across the nation. No longer fearful of losing in court, administrators would likely be far more aggressive in weeding out “discriminatory” Christian organizations.

Moreover, in addition to the obvious risk, there was a hidden risk. What if the case the Supreme Court actually reviewed wasn’t the “perfect case” but instead something else, a one-off case with unique (or uniquely bad) facts? Could the worst kind of case lead to the worst kind of outcome?

On June 28, 2010, that’s exactly what happened. The Supreme Court handed down its decision in Christian Legal Society Chapter of Hastings College of Law v. Martinez, an extraordinarily quirky case involving a unique “all-comers” policy that required every student group to be open to every student, in membership or leadership.3

The response to the case was, initially, confusion. Was the case essentially meaningless, confined to its unusual facts? Or did it serve as a roadmap for universities seeking to exclude Christian voices. Should universities change or interpret their own nondiscrimination policies as “all-comers” policies?

In time, an increasing number of universities—public and private—chose the latter course. Vanderbilt University, located in the very heart of the evangelical Bible Belt in Nashville, Tennessee, implemented (over much public protest) its own version of an “all-comers” policy and promptly ejected multiple Christian groups from campus.4 By the summer of 2014, the California State University System—the nation’s largest—was implementing a policy that would place every religious group in a bind: promise not to use your faith when deciding on your leaders or lose recognition.5

But rather than settle for exclusion, Christian organizations, friends of liberty, and their supporters have gotten creative, launching multipronged efforts to stay on campus, efforts that may pay far greater long-term dividends for the health and vitality of campus Christianity than successful litigation. These efforts have three main strands.

First, abandon top-down litigation efforts in favor of grassroots student activism. Litigation placed campus access in the hands of lawyers and judges through judicial processes that essentially put the students on the outside looking in. Indeed, lengthy cases sometimes meant that entire classes of students could graduate before reaching a final resolution and even student members of plaintiff organizations were sometimes unaware their fellowships were suing their schools.

At Vanderbilt University there was no realistic litigation option anyway. No group could successfully sue a private university for access, but the excluded groups did not want merely to leave quietly. Instead, from the grassroots they engineered a massive multidenominational, multi-fellowship protest effort that included public prayer meetings, letters to trustees, and direct (but polite) confrontations with the administration at town hall meetings, where students supporting religious liberty overflowed meeting halls.

While unsuccessful in changing the letter of Vanderbilt’s policies, this student activism had two primary positive effects. First and most important (from the standpoint of the spiritual health of the affected groups), it galvanized student awareness and tended to have a positive effect on student engagement. Groups reported larger and more enthusiastic membership soon after they joined the fight in earnest.

In addition, Christian groups retained their campus access. In an August 9, 2012, letter to de-recognized student groups, the associate dean of students pledged that the university would provide on-campus facilities to the groups “at no cost.” On a sprawling campus like Vanderbilt’s, this no-cost access was critical for maintaining student engagement.

Lawyers did not win that limited victory. Students did.

The second strategic effort for continued access is legislative. In both “red” and “purple” states, campus Christian organizations have worked with legislators, pro-family groups, and activist citizens to pass legislation protecting freedom of association on campus in at least six states, including Virginia, Ohio, Arizona, and Tennessee.6 The language of the Ohio law is particularly clear, stating:

No state institution of higher education shall take any action or enforce any policy that would deny a religious student group any benefit available to any other student group based on the religious student group’s requirement that its leaders or members adhere to its sincerely held religious beliefs or standards of conduct.7

Such state legislation could well serve as a model for a federal bill should the makeup of Congress change sufficiently to present a realistic chance of passage. In such circumstances, the anti-Christian campus Left would find that its victory at the Supreme Court would have ironically paved the way for a democratic national movement preserving campus access for the very Christian groups they seek to exclude.

The final strategic effort to preserve access is financial. To fund the multiyear litigation effort that culminated in the Hastings decision, Christian philanthropists and small donors gave numerous religious liberty organizations literally tens of millions of dollars specifically dedicated to religious liberty on campus. While it is true that campus access is but one of the many fights for religious freedom in public universities—and there is need for continued litigation on multiple fronts—thoughtful donors are already thinking of creative uses for new funds, including renting rooms on campus to escape viewpoint-based oversight entirely or purchasing property adjacent to campus that is completely outside the reach of university regulation.

In fact, it is the existence of independent properties that has enabled Christian groups to survive and thrive at Vanderbilt. There, Christian ministries owned property in the heart of the campus and threw open their doors to excluded groups, providing them with space to study and worship even in the darkest days of the controversy, when it appeared the university would banish them entirely.

In fact, a financial strategy for campus access may present controlling administrators with the ultimate irony: Their efforts to stifle free speech may well end up placing Christian groups at multiple campuses entirely out of their reach, leaving them to watch, helplessly, as their students are exposed to true “diversity”—a diversity of thought and belief that campus leftists thought they would have stamped out long ago.

While it would be wrong to cast religious liberty on campus as improved since the first days of the nondiscrimination dispute at Tufts—or certainly since the Supreme Court loss at Hastings—campus Christians by their conduct have resurrected the immortal words of colonial captain John Paul Jones, facing near-certain defeat at the hands of a seemingly superior British force: campus Christians have “not yet begun to fight.”

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