Systemic flaw

After a 10-month wait, California Christian schools finally have an answer: The University of California (UC) may well have violated their First Amendment rights.

Two years ago, the UC Board of Admissions and Relations with Schools (BOARS) systematically rejected core courses taught in private Christian schools. If Christian schools wanted to offer, say, physics using a Bob Jones University Press textbook, fine, BOARS said. But students taking that course would not meet the physics requirement necessary to gain admission to the UC system (see "Strange standards," Nov. 26, 2005).

BOARS based its decision exclusively on the fact that the BJU text added a Christian viewpoint to an otherwise standard physics curriculum. After UC rejected a series of other courses, in history, biology, government, and literature, the Association of Christian Schools International (ACSI) sued.

In a suit filed in federal court in August 2005, ACSI, co-plaintiff Calvary Chapel Christian School in Murietta, Calif., and individually named students claimed that UC had violated both the California constitution and the group's First Amendment rights to free speech, association, and exercise of religion. Two months later, UC filed a motion to dismiss, arguing that ACSI's claims had no merit.

District Judge S. James Otero disagreed. While the jurist on Aug. 8, 2006, dismissed ACSI's state constitutional claims based on the federal court's lack of jurisdiction, Otero summarily slapped down most of UC's dismissal motion. That means the religious discrimination suit against the nation's largest state university system will proceed-and likely with national implications.

"This case is about the future of Christian education," said ACSI co-counsel Robert Tyler, president of Advocates for Faith and Freedom, a religious-liberty law firm in Murietta. "California is a trend-setting state. We're pleased to be representing plaintiffs who are willing to take a stand to prevent a tidal wave of religious discrimination from rolling over Christian schools nationally."

In its dismissal motion, UC claimed that ACSI had failed to establish a religious free exercise claim, since the Christian schools in question were free to teach whatever they wanted. But Otero cited the 1981 Supreme Court ruling in Thomas v. Review Board of Indiana as being most applicable to ACSI's case: When the state denies an important benefit-in this case admission to the state university system-because of "conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."

In Otero's opinion, the ACSI plaintiffs had shown adequately that they had been forced to choose between providing and taking courses that promote a biblical moral view or complying with the university's admission requirements.

UC also argued that ACSI had no valid First Amendment claim because the university was "not stopping Plaintiffs from saying whatever they choose and because the University has its own First Amendment right to establish rigorous admission standards." Otero, however, upheld ACSI's contention that UC's censoring of Christian viewpoints likely violated the First Amendment.

"Fundamentally, the government is forbidden from engaging in regulation of speech based on its substantive content or its message," he wrote. And while the Supreme Court has said universities may legitimately judge course content, Otero noted that the court has also ruled that schools may not, in doing so, violate individual constitutional rights.

And UC likely had, Otero added: "Bias against a person because of her religion has been characterized by the Supreme Court as an invidious discrimination," he wrote. "By extension, it is difficult to imagine how discrimination because of a particular manifested religious viewpoint could itself be anything less than invidious."

ACSI co-counsel Wendell Bird said UC's actions amounted to state discrimination against a Christian perspective since California doesn't object to other perspectives taught in public and private schools. "The concept that state bureaucrats determine what viewpoints are permissible and impermissible in private schools is the most dangerous trend imaginable," he said.