The College Fix

Wayne State argued ‘with vigor but without factual support’

A federal judge will consider claims that a public university violated a Christian student group’s “right to internal autonomy in religious affairs,” and selectively applied nondiscrimination rules, by denying recognition based on its Christian-only leadership criteria.

Under a ruling handed down Friday, the vast majority of claims will go forward in the First Amendment lawsuit against Wayne State University by InterVarsity Christian Fellowship and its WSU chapter.

The taxpayer-funded Michigan university derecognized the 75-year-old chapter two years ago, forcing it to pay $2,700 in fees to keep using campus space it previously received for free, according to the 2018 lawsuit. WSU objected to InterVarsity’s written requirement that its leaders, though not members, be Christian.

U.S. District Judge Robert Cleland challenged the university’s “conclusory” claims, and its arguments made “with vigor but without factual support,” that he could dismiss the lawsuit without unraveling the facts of the case.

In one of the most stinging rebukes, Cleland said WSU ignored InterVarsity’s allegations that “more than ten student groups … plausibly violate” campus policies “but also appear to … retain their favored group status, in spite of doing so.”

The university had claimed the Christian group had not alleged “a single fact that would suggest anti-religious animus or discriminatory intent,” even as it admitted that WSU lets several groups exclude certain students from membership, let alone leadership.

MORE: Wayne State sued for requiring Christian club to accept non-Christian leaders

Among the claims going forward is that WSU violated the procedural due process rights of the club by not giving it hearing before rejecting its application for recognition. (WSU instituted an “online registration system” for student groups seeking recognition in 2017, leading to the events at issue.)

“Insofar as InterVarsity invokes its right to expressive association, it has identified a cognizable liberty interest,” the judge wrote.

InterVarsity and its lawyers at Becket, a public-interest law firm specializing in religious liberty, praised the ruling.

“All religious students should have the right to come together for worship and service according to their religious identity without being targeted for their faith,” Greg Jao, director of external relations at InterVarsity Christian Fellowship/USA, said in a written statement Friday.

“Christian students have the constitutional right to run their group according to their mission and identity, just as athletes and fraternity members do, without being targeted for their beliefs,” said Becket senior counsel Lori Windham.

The College Fix called and emailed WSU’s media office on Friday when the news broke, but no one who answered the phone said they were qualified to comment. No emails were returned.

‘Novel’ arguments from InterVarsity, but university’s are weaker

InterVarsity requires students who want to serve as a “Christian Leader” in campus chapters to describe their “relationship with Jesus Christ,” as well as ”personal devotional life” and church involvement. The leaders’ duties include conducting Bible studies and leading group prayer.

WSU said these leadership qualifications violated the university constitution and nondiscrimination code.

When InterVarsity filed suit, it claimed that WSU lets many student groups make their own leadership rules. Among them: atheist, pro-life and Greek-letter student groups, which have the freedom to choose leaders, members or both who are aligned with their core missions.

Cristina Garza, who was president of the club when it was rejected, said that administrator Richard Villarosa told her that fraternities and sororities had not been punished because “their constitutions complied” with the policy.

She took that to mean that student organizations are “allowed to disregard” nondiscrimination rules in practice, just not in writing.

WSU quickly pulled back and reinstated InterVarsity after it sued, even though it later claimed that the law did not require the university to “subsidize” the club’s decision to make “second-class citizens” out of non-Christians. It accused the Becket firm of pushing “baseless and unnecessary litigation.”

The governor and attorney general of Michigan disagreed, siding with Becket on its core claims a year ago. In Friday’s ruling, Judge Cleland also largely disagreed with the university that the litigation was baseless.

Judge blesses First Amendment lawsuit against Wayne State by InterVarsity by The College Fix on Scribd

MORE: Wayne State reinstates InterVarsity following lawsuit

Even though its “free exercise” claims are “novel,” the student club can continue arguing them, he wrote.

The university claimed that InterVarsity was arguing for a “ministerial exception,” which is not a “cause of action” but rather an “affirmative defense.” Cleland said WSU was misreading an employment discrimination ruling, known as Tabor, that prevented a minister from suing her church for firing her.

“While it is not clear that InterVarsity may posit a violation of this principle as a cause of action, it is equally unclear that it cannot,” Cleland wrote. “[I]t is far from implausible” that they can assert a violation of their “clear constitutional right to choose their own ministers.”

The judge continued that InterVarsity has asserted “more than enough factual allegations to cross the basic threshold” of claiming WSU permitted other student groups to violate its nondiscrimination policy but “invidiously” targeted InterVarsity for its specific religious beliefs.

“Wayne State admits it provides exceptions from its nondiscrimination policy for (male) fraternities, (female) sororities, and (gender-specific) sports teams,” and InterVarsity claims it turns a blind eye to other groups in violation, Cleland wrote.

WSU also argues in “conclusory fashion” that the club hasn’t alleged “plausible discriminatory treatment” in claiming “denominational discrimination,” the judge said.

In fact, InterVarsity claims that the university recognizes other groups that make leadership decisions on religious grounds, including New Life Church, which is affiliated with the Southern Baptist Convention.

The university “begs the question” by claiming its policy follows the Supreme Court’s so-called Lemon test, even when there are “contested facts” – namely, whether its policy is “applied neutrally and without discrimination,” according to the judge.

In a footnote, Cleland cast doubt on WSU’s reliance on the three-pronged Lemon test, which decides whether government action violates the Establishment Clause. “The U.S. Supreme Court has expressed strong skepticism about its continued vitality,” he wrote.

As he noted in other sections, the judge said WSU may later prove that InterVarsity’s claims about anti-religious animus and intent are “mistaken or otherwise meritless,” but he cannot throw out the lawsuit before examining those claims.

Wayne State relies on precedents for policies nothing like its own

Cleland sided with InterVarsity on its claim that the primary Supreme Court precedent cited by WSU was not applicable to the lawsuit.

The so-called Martinez ruling said a university could “place restrictions on its student organization program,” under the rubric of a “limited public forum,” if those restrictions are “reasonable and viewpoint neutral.”

But the university policy at issue in Martinez was known as an “all-comers” policy, meaning that it required all student organizations without exception to let all students participate and run for leadership. WSU has no such policy.

The university is wrong that “t[his factual distinction makes no legal difference,” as it told Cleland. The judge said Martinez was all about the constitutionality of an all-comers policy.

WSU cites another inapplicable ruling about San Diego State University’s policy, which explicitly applied to student organizations and their membership practices. Cleland said WSU’s own policy does not refer to student organizations, and it explicitly refers to membership, not leadership, so it’s not clear it applies to InterVarsity at all.

The judge also noted that many recognized student organizations “hold themselves out” on the university’s website as “limiting membership based on the categories enumerated in the nondiscrimination policy.” They include Muslim, Jewish, black, Latino and even “Albanian American” groups.

While the university claims these groups may actually comply with its policy, and that it didn’t know of any real violations, Cleland said he was obligated to draw “reasonable inferences in favor of the non-movant [InterVarsity]” and use his “judicial experience and common sense.”

It’s reasonable to infer from the club’s allegations that “Wayne State was not treating it the same as everyone else,” the judge concluded.

MORE: Wayne State Quidditch Club can choose its own leaders; InterVarsity can’t

IMAGE: Happy Stock Photo / Shutterstock.com

Like The College Fix on Facebook / Follow us on Twitter