Religious Activities on Campus

Student expressive rights in higher education reflect the U.S. Supreme Court's landmark decision in Tinker v. Des Moines Community School District (1969). In Tinker, the justices declared, in response to public school students wearing black arm bands to express their opposition to the Vietnam war, that “neither students [nor] teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (p. 506). Unlike free expression litigation in K-12 settings that have often involved individual or classroom expressive activities, issues in higher education deal primarily with the expressive activities of student groups outside of classroom settings or with student organizations. Virtually all of the higher education law in the area of campus expressive rights has been distilled from litigation involving the interpretation of college or university regulations. This entry examines the parameters of student religious activity on college and university campuses as a subset of free expression litigation.

Three years after Tinker, the Supreme Court, in Healy v. James (1972), overturned the refusal of officials at a state college to permit students to form a local chapter of Students for a Democratic Society based on the fear that it would have been disruptive to campus life. In the process, the Court set the foundational principle for determining when it is acceptable to limit the speech of students at colleges and universities. The Court found that college officials, acting as instrumentalities of the state, may not restrict student free speech or association rights simply because they find the perspectives expressed by any group abhorrent.

Nine years later, in Widmar v. Vincent (1981), the Supreme Court reviewed the free expression claims of a religious student group for the first time. The litigation began when officials denied the group permission to meet in university facilities pursuant to an institutional regulation prohibiting the use of campus buildings or grounds for religious worship or religious teaching. In rejecting the university's claim that its position was required by the Establishment Clause, the Court, citing both Tinker and Healy, held that the First Amendment rights of speech and association extend to the campuses of state universities and that once officials extended the university's forum to the expression of other student groups, they had to do the same for the religious groups. To this end, the Court asserted that the issue was no longer whether the university was advancing religion under the Establishment Clause by permitting the religious groups to meet, but whether officials could have excluded groups based on the content of their speech. In balancing the university's responsibilities under the Establishment Clause not to advance religion, and under the Free Speech Clause not to make content-based restrictions of student expression, the Court determined that content-based discrimination against the group's religious speech was neither required by the Establishment Clause nor permitted under the Free Speech Clause.

In essence, the Widmar Court ruled that once university officials opened facilities for use by student groups, attempted restrictions of the expressive religious views of the organizations under the Establishment Clause was trumped by the organizations' expressive rights under the Free Speech Clause. It is worth noting, though, that the Court was careful to specify that it had no intention of undermining the authority of officials to enact reasonable regulations concerning the time, place, and manner of use. At the same time, the Court made it clear that it had no desire to question the authority of officials to make academic judgments about the allocation of scarce resources or to decide independently on academic bases who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

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