Across the United States, university and law school campuses host a variety of student organizations ranging from groups pursuing similar professional interests, to religious associations, to identity-based organizations such as LGBTQ+ student groups. These organizations play an important function in campus life. They are spaces where students can make friends, network, learn about new opportunities, gain valuable insights, and enrich their education. For law students in particular, engagement in campus life is enormously important. Law student organizations can lead to internships, clerkships, and other summer jobs while helping students build out their future professional network. These immense benefits of student extracurricular activities are, however, under threat due to a pattern of laws referred to as “Campus License to Discriminate” laws by American Atheists, which tracks and opposes such legislation. According to Alison Gill, Vice President for Legal and Policy at American Atheists, these state laws aim to allow religious student groups to exclude certain students on the basis of their identity or beliefs while still benefiting from public funds and enjoying the perks of university recognition. 

The vast majority of American public universities and their affiliated law schools have strong non-discrimination policies prohibiting discrimination on the bases of race, gender, sexual orientation, national origin, and other characteristics. Because of these protections, campus student organizations that seek official recognition by their university cannot discriminate in membership or leadership selections, ensuring that all students have full and equal access to the social, professional, and academic benefits of student organizations, including religious organizations. Official recognition by a university serves as a big incentive for these campus groups, as that status typically comes with access to school-provided meeting spaces, the ability to host events, advertising, media platforms, and budgets. As a result, student groups have benefitted from institutional support while recruiting and embracing a diverse range of membership and leadership, and correspondingly creating and strengthening a culture of inclusivity, acceptance, and collaboration on campus. 

Now, Campus License to Discriminate laws threaten that culture by allowing for discrimination and undermining freedom of religion. These laws, which began to appear in the 2010s, require public colleges and universities to recognize religious student organizations that engage in discrimination in membership and/or leadership selection, in alignment with the organization’s religious beliefs. That means, for example, that even if a certain religious campus group refuses to allow any LGBTQ+ students to join or hold leadership positions, a public university cannot revoke the organization’s recognized status for violating campus anti-discrimination policies. “Freedom of religion is a fundamental American value that protects everyone’s right to their beliefs, as long as they don’t harm others,” Gill says. “It does not give people or organizations the right to ignore civil rights protections and discriminate.” Nevertheless, over a dozen states have implemented such laws. 

This trend is particularly harmful to LGBTQ+ students seeking to join campus religious groups, resulting in forced disconnects between LGBTQ+ students and their faith communities. In states that have adopted these laws, religious campus groups can cite religious beliefs as a reason for barring any LGBTQ+ students from becoming members, or may use an organizational code of conduct prohibiting LGBTQ+ experiences and activities, such as dating someone of the same sex, to exclude LGBTQ+ students. Even worse, students excluded by religious groups are often forced to financially support those discriminatory groups. This is because most universities and law schools fund student activities through fees collected from students each semester or school year, meaning the monies supporting recognized student organizations with meeting spaces, advertising, media platforms, and organizational budgets come from students even if they are excluded from membership or leadership in those groups. 

As of January 2024, 15 states have enacted Campus License to Discriminate laws. These laws were passed in response to the precedent set by Christian Legal Society v. Martinez, 561 U.S. 661 (2010), in which the Supreme Court found that a public university, in compliance with its all-comers policy (a type of non-discrimination policy), could refuse to recognize a religious student organization that prevented students of other faiths or nonreligious students from joining. Unfortunately, there was an increase in these types of exceptions to non-discrimination requirements, after the Trump Administration issued a rule requiring all public colleges and universities to recognize religious organizations that discriminate, so long as the discrimination was based on their religious beliefs. If schools failed to recognize or support these religious groups, they could risk losing their federal funding under 85 Fed. Reg. 59, 916 (Sep. 23, 2020). In response, American Atheists and Americans United for Separation of Church and State sued the U.S. Department of Education on behalf of students impacted by the rule, including an LGBTQ+ student, arguing that the rule was unconstitutional and that the Secretary of Education both had no authority to issue the rule and ignored the harms the rule would cause. 

The Biden Administration announced that the Department of Education would rescind or amend the Trump-era rule in 2021. The lawsuit is now on hold while the parties await the government’s final rulemaking decision. Meanwhile, students in states that have passed Campus License to Discriminate laws continue to face and pay for discrimination on campus. In a climate where LGBTQ+ students, particularly transgender and nonbinary students, are facing an onslaught of transphobic laws impacting access to education, universities and law schools must use every tool at their disposal to protect LGBTQ+ students’ ability to learn, participate, and succeed at the same levels as their cisgender and heterosexual peers. “Now more than ever, colleges and universities should fully implement their nondiscrimination policies in order to create a safe and welcoming learning environment for all students,” says Gill. 

You can learn more about Campus License to Discriminate Laws in American Atheists’ annual report on state law and policy, the State of the Secular States. To learn more about how the National LGBTQ+ Bar supports law students, check out our resources for law students webpage which includes information about our Law Student Congress and our student member platform, Backpack to Briefcase. You can also learn more about how law schools can best support LGBTQ+ students on the LGBTQ+ Bar’s website.