The Perverse Effects of the “All Comers” Requirement

Cal State’s “all comers” policy regarding religious groups is a disturbing and unprincipled effort to rid universities of conservative religious groups with creedal faith statements.

“Student life in its many dimensions includes the necessity of wide-ranging speech and inquiry and that student expression is an integral part of the University’s educational mission.” The “all comers” logic tramples on these principles. It ignores a commonsense recognition that the university ought to be about inquiry, not orthodoxy. That is a loss for the university, and a loss for us all.

 

The recent decision by the California State University system to enforce its “all comers” policy against religious groups on its 23 campuses is the latest in a disturbing and (at least in some cases) unprincipled effort to rid colleges and universities of conservative religious groups with creedal faith statements.

The Supreme Court bears much of the blame. In its 2010 decision in Christian Legal Society v. Martinez, the Court unwisely upheld the nondiscrimination policy of the Hastings College of the Law, a public law school in San Francisco. Its “all comers” policy is that student groups must admit as members and even leaders any student who wants to participate. The Republican club must accept Democrats. The pro-choice club must accept pro-lifers. The Jewish club must accept Christians.

Emboldened by the Court’s embrace of the “all comers” logic in Martinez, other campuses have followed suit. Among the most prominent are Vanderbilt, Bowdoin, and now the Cal State system, with some 450,000 students.

Anyone not familiar with the problems associated with “all comers” policies should watch the short video, “Exiled from Vanderbilt,” produced by the Foundation for Individual Rights in Education. The video features strong critiques from Vanderbilt law professor Carol Swain, country music star Larry Gatlin, and author Jonathan Rauch. The trio includes a gay man and an African American woman.

We might ask what exactly is gained by enforcing these policies. One possible rationale is concern for equal citizenship and equal opportunity. But we might wonder whether requiring all comers to be accepted furthers these important goals. We might reasonably ask whether exclusion from student religious groups could lead to political, economic, or social harms akin to those addressed by civil rights legislation. Such harms are certainly possible.

I have argued that anti-discrimination laws might justifiably limit the autonomy of private groups when exclusion from membership meaningfully curtails access to broader social or economic participation. For example, if membership in religious student groups were a prerequisite to the most desirable post-graduation jobs, then “all comers” policies might well be justified. But in making such assessments, universities—and courts—should focus on genuine impediments to power and resources. A better remedy might be encouraging a diversity of groups so that every student can find a community who shares his or her beliefs, rather than forcing existing groups to change.

In fact, it may well be the case that Cal State’s enforcement of the “all comers” policy against religious student groups undercuts some efforts toward equality. InterVarsity Christian Fellowship reports that many of its students affected by the Cal State policy are students of color.  It is not implausible to think that these students find acceptance and solidarity in groups that help them navigate life at college. Those support structures are no small thing on campuses. And now a sizeable number of groups that provided those structures are no longer welcome.

Would college students really have greater equality of opportunity and equality of citizenship if they were able to join and lead groups whose creedal views differ from their own? Would the gains offset the costs to those (including many students of color) who find deep value in those groups? That seems unlikely. But we will never know.

The perverse genius of the “all comers” policy is that it operates much like a classic prior restraint. It requires student groups to pledge allegiance to “all comers” as a condition of entry into the university’s public forum. As a practical matter, most groups will have little problem with such a policy. Most can generally agree to open membership policies because their membership largely self-selects, and nothing in their organizational documents is in tension with “all comers.” But as Tish Harrison Warren explains so well, creedal faith groups are different. Because these groups will be unwilling to alter their longstanding theological commitments, the policy ensures that their views and beliefs will be excluded from the pluralistic environment of the university.

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