RE: Bible study ban for RA's in UW-Eau Claire dorms

[Steve Sanders]

Title: Message

All good points.  But if this is properly framed as a case about the religious activities of a public employee in the workplace, I’m unclear how Rosenberger is relevant.  The policy apparently says nothing about the freedom of ordinary students living in the dorms to apply for university funds to organize Bible studies on equal terms with other activities.  If we’re analogizing non-employment lines of First Amendment doctrine, this seems closer to Rust v. Sullivan:  the university is paying you to be someplace and to perform specific tasks, and certain things you may want to do during that university-paid time, whether religious or political, may be incompatible with the purpose of the role you’ve contracted to fill.    I appreciate Steve Prescott’s post.  But since we don’t have information on how the university enforces the policy with regard to political ideology or other religions, I’d suggest it’s not productive to let such speculation convince us that this must be religious discrimination against Christians.  (He may well be right, and if he is, then the university should be faulted.)    As to Eugene’s diversity point, I certainly agree in the abstract.  Whether the university is being hypocritical depends on whether they’re trying to suppress the RA’s personal identity as an open Christian (which they clearly can’t and shouldn’t do) or his proselytizing (if indeed that’s what’s happening here, then it’s a more legitimate concern).  It’s not the RA who’s the issue, it’s his in-the-workplace activities.  The legal question here turns, I think, on the nature of the Bible study sessions – whether they’re within the legitimate bounds of personal free exercise, or more akin to what was happening at the Air Force Academy.   Steve   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, November 08, 2005 10:52 AM To: Law & Religion issues for Law Academics Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms       Hmm -- I had read a different account, but I'm happy to accept this one (at least for the purposes of our discussion, and possibly as the accurate one).  In any case, though, exclusion of partisan events doesn't seem to me enough to eliminate the religious discrimination problem, just as it wasn't in Rosenberger.  The Socialist Youth League might well be not partisan, in the sense that it promotes socialism as an ideal rather than as a party; try a Spartacus Youth League or an International A.N.S.W.E.R. chapter.  So it seems to me that if religious groups are restricted but other ideological groups (except for partisan political events), we have religious discrimination; as I mentioned, Rosenberger so holds.       More broadly, it seems to me that tolerance and diversity would include tolerance for a diversity of religious beliefs of the RAs as well as the students.  If a student concludes that an RA is unapproachable because of his religion -- not because he's personally insulted you, or has told you that your religion is inferior (where government as employer is concerned, restrictions on rude advocacy of religion or ideology, or even advocacy that harshly criticizes other religions or ideologies, may well be proper), but simply because he's running a Bible study group -- is the student really showing a tolerance for diversity?  If the school caters to the preferences of those students who feel uncomfortable talking to out-of-the-closet Christians, is the school really showing a tolerance for diversity?     Eugene -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders Sent: Tuesday, November 08, 2005 12:42 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms I don’t believe that labeling this as a religious-discrimination claim is accurate.  As one of the newspaper accounts says:  “UW-Eau Claire spokesman Mike Rindo said Thursday the university prohibits resident assistants from leading Bible studies or other activities like partisan political events (emphasis added) in the dorms. It doesn't prohibit them from attending them.”    So, no, RAs also could not organize meetings of the Bush=Hitler Club of the Socialist Youth League.  Non-RA living in the dorms could do either of these, as well as lead Bible studies.   I think Eugene is right that the issue here is employment, not the state as landlord.  The university’s casting this as an “approachability” issue makes matters somewhat tricky.  I assume that, less euphemistically stated, the policy is aimed at discouraging proselytizing by a state employee on state property during working hours – something that’s even more incompatible with an RA’s role than with the jobs of most state actors (because among other things, RA duties usually include promoting tolerance, diversity, etc.).  If it’s simply a matter of the RA’s personal identity, I of course agree that discrimination would be inappropriate.  The issue here would seem to turn on the nature of the Bible study meetings (are they advertised, with residents invited/encouraged to attend? held in his room or a public lounge? etc.), and I’m not sure the newspaper accounts give us enough facts to draw reliable legal conclusions.   Steve   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, November 08, 2005 10:06 AM To: Law & Religion issues for Law Academics Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms       Hmm -- as I understand it, this isn't a simple religious accommodation claim, in which an RA claims an exemption from a generally applicable rule (no meetings of ideological groups in your dorm rooms).  This is a claim that the government is discriminating against religious groups; you can organize meetings of the Bush=Hitler Club or the Socialist Youth League in your dormroom, regardless of whether this causes some students to feel that you're "unapproachable," but you can't organize Bible Study meetings.       Incidentally, to the extent that the state is resting its argument on its power as landlord, that argument is likely to lose under Rosenberger and Lamb's Chapel.  The state must instead, I take it, rest its argument on its power as employer.  And when one sees the state as employer, it seems hard to distinguish the "approachability" effects of a student's being widely known as a Christian because of his outside-the-dorm-room activities (for instance, his being known to be the leader of a Christian student group that meets in a classroom after hours, or even his being known to be an ordained minister) from the approachability effects of a student's being known as a Christian because of his in-dorm-room activity.  If the government-as-employer's concerns about approachability justify discriminating against religious practices of students in dorm rooms, would they equally allow the government to, for instance, refuse to hire as RAs people who are known to be active in their religious groups outside the dorm or off-campus?      Eugene -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders Sent: Tuesday, November 08, 2005 11:37 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms The point is, though, that this person’s “home” is also state property, making it akin to professor’s classroom.  If it were a different arrangement – he came to the dorm for an 8-hour shift advising students, then went back to his own off-campus apartment – obviously the university could not dictate what he did in his home during his off-time.    An RA at a public institution is a rather unique status: a state actor whose job requires that he live onsite, who is essentially “on duty” 24 hours a day (at least when he’s on the premises), and who is compensated in the form of free housing for making this sacrifice of freedom and privacy.   We know from free-exercise doctrine that a university could decline to accommodate an RA whose religion required him to attend services or observe sabbath on a schedule that would impose unreasonable demands on fellow employees.  And I imagine that under public employee speech doctrine, the university also could prohibit the RA from posting certain discriminatory social or political messages on his door – messages that ordinary dorm residents would be more free to post.    There is, of course, no entitlement to a job as an RA; it’s usually at least somewhat selective.  If an RA feels a clash of conscience between his special and demanding role and his desire to spend time spreading religious or other messages, he is free not to accept this particular employment.         Steve Sanders   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M Pardee Sent: Tuesday, November 08, 2005 8:53 AM To: religionlaw@lists.ucla.edu Subject: Bible study ban for RA's in UW-Eau Claire dorms   To me, this ban seems rather difficult to justify.  To say that an RA can't host a bible study in his home on campus is absurd.  They try to say that the RA could host it off-campus, but "that if the studies continued, students might not find them 'approachable' or might fear they'd be 'judged or pushed in a direction that does not work for them.'"  That's not a question of where the Bible study is held but rather whether the RA is hosting it.  If a student is honestly going to feel an RA is "unapproachable" because they lead a Bible study in their dorm room, are they going to automatically view the RA as approachable if the RA leads the exact same study but in a different location?  It strikes me as an illogical argument.  I know that there are those here who have proposed that some of the excesses of educational institutions in limiting religious speech are grounded in either the fear of costly litigation or a mistaken believe that the limitations are required.  I don't see either of those benign errors here, though. http://www.jsonline.com/news/state/nov05/368030.asp http://www.gazetteextra.com/bibleban110405.asp Brad

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