The Court has agreed to hear Christian Legal Society v. Martinez, and to decide whether public universities may open up various student group benefits — funding, access to classrooms, and the like — only to groups that don’t discriminate based on race, religion, sex, sexual orientation, and the like.
1. To begin with, I should say that I agree with the Court’s Boy Scouts v. Dale decision: Private groups often do have the First Amendment right to discriminate in choosing their leaders (and their members, though Dale didn’t focus on that), when barring such discrimination would interfere with the groups’ ability to spread their message. I also think that, as a policy matter, public universities should leave groups — even those they support — free to discriminate based on criteria that are relevant to the group’s mission, such as religion, sexual orientation, and, where appropriate, race and sex. Allowing such groups would do more for the cause of genuine diversity of perspective than would any attempt to force integration of those groups.
2. But the question is not just whether the groups have a constitutional right to expressive association — it’s whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.
Let’s set antidiscrimination rules aside for a moment, and consider a university rule that gives benefits only to groups that are run by students. I take it that this would be pretty clearly constitutional, because it involves the university’s preserving university resources for the benefit of students. Yet of course groups have a First Amendment right to select nonstudents as their leaders, and may have good reason to do so. They have a constitutional right to associate — but not a constitutional right to get government benefits for their association.
Or consider a university rule that requires student groups to be democratically run, with each member being given a vote. That too, I take it, would be constitutional. Groups have a First Amendment right to organize themselves in other ways, but a public university may choose to subsidize only democratically run groups.
3. Likewise, let’s turn to fields other than expressive association. Though the Court has recognized the right to get an abortion, it has expressly held that states need not allow abortions in state-run hospitals. People have a constitutional right to send their kids to private school, but states may choose to fund only public schools. People have a constitutional right to spend money to elect candidates, and to lobby the legislature and the public, but the government may decline to subsidize such activities using the charitable tax exemption. (Tax-exempt funds generally can’t be used for electioneering, or for a substantial amount of lobbying. You can find cites for this and most other legal assertions I make here in my Stanford Law Review article on this subject.) The government need not open its property for constitutionally protected solicitors of charitable contributions even when it opens it for leafletters.
So the government generally has no duty to subsidize even constitutionally protected activity, and may even single out some constitutionally protected activity for special exclusion from government subsidies. Again, consider bans on performing abortions in state-run hospitals, or on using tax-supported funds for electioneering. This goes a long way, I think, to concluding that the government need not subsidize groups that discriminate in their choice of leaders or members, just as it need not subsidize groups that choose to have nonstudents run them, and just as it need not subsidize abortions or electioneering.
4. How might antidiscrimination rules imposed by universities be different?
a. If the rules are themselves enforced unevenly — for instance if a Muslim student group is allowed to exclude non-Muslims but a Christian student group is barred from excluding non-Christians — then that would surely be unconstitutional. But I take it that the argument in favor of student groups’ right to discriminate goes beyond that.
b. Where it comes to generally available benefits for speech, the government must not discriminate based on the viewpoint of speech. It may discriminate based on content (recall again the limits on using tax-exempt contributions to advocate the election or defeat of a candidate), but not based on viewpoint: Consider the Rosenberger case, in which the Court held that a state university may not deny generally available benefits to religious newspapers — the Court concluded that this denial was viewpoint-based, because it treated speech expressing religious viewpoints worse than speech expressing secular viewpoints.
Yet a rule denying benefits to groups that discriminate in choice of members or leaders based on applicants’ race, religion, or sexual orientation restricts groups based on their actions — their denial of decisionmaking power or voting power based on certain criteria — and not based on their speech. If the university denied generally available funding to groups that advocate against homosexuality or against religious tolerance or some such, that would be a viewpoint-based exclusion of speech (even if it’s articulated as a ban on supposedly “discriminatory” speech, or as a ban on speech or conduct that creates a “hostile environment” for certain groups). But a rule that groups that get funding must not discriminate doesn’t turn on speech at all; it turns on conduct.
Of course, these antidiscrimination rules are motivated by university officials’ viewpoints. But all rules are motivated by their enacters’ viewpoints (if only the viewpoint that the rule would be a good idea); that can’t be the test for viewpoint discrimination. Likewise, the rules may interfere in some measure with some groups’ ability to spread their viewpoints. But lots of content-neutral restriction (and certainly content-based but viewpoint-neutral restrictions) interfere with some groups’ ability to spread their viewpoints, and may do so more for certain groups than for other groups. A ban on residential picketing, for instance, interferes with people’s ability to spread their viewpoints this way, and disproportionately affects those groups that would otherwise choose to use that medium. But the Court has held that the ban is content-neutral, and it’s certainly viewpoint-neutral.
c. Some people I’ve talked to acknowledge that a university may be free to require that all student groups admit all students, and open their offices to all students (subject, of course, to the requirement that the students be elected by their fellow group members). Such a rule, those people concede, would make sure that university-provided benefits are available to all students. But a rule that lets groups discriminate based on all sorts of things but not based on race, religion, sexual orientation, and so on, they argue, can’t be justified on these grounds.
That doesn’t strike me as persuasive. The notion that discrimination based on certain grounds (but not other grounds) shouldn’t be subsidized with government funds is pretty sensible: The government might reasonably choose to insist that all its funding be available to everyone equally, but it might also want to allow some forms of discrimination but not other forms. The principle that recipients of government funds should be free to discriminate on many grounds but not on race, religion, and the like strikes me as a constitutionally permissible principle for the government to adopt (and it is in fact the principle behind Title VI of the Civil Rights Act, just to give one historical example). I don’t see why universities should be put to the choice of either requiring all student groups to not discriminate at all or leaving them free to discriminate on all possible bases.
d. Might it be that rules that deny funding to groups that discriminate based on religion be special, when applied to a religiously themed student group limiting its membership or leadership? Such an argument would set aside rules related to race discrimination, sexual orientation discrimination, and focus on the fact that religion is an ideology. Other ideological groups, after all, are generally free to discriminate based on ideology; Objectivists might limit membership or officer positions to Objectivists, and the Sierra Club might limit membership or officer positions to environmentalists. Religious groups, the argument would go, should have the same right, and should thus be exempted from bans on religious discrimination, which to them are bans on the very same form of discrimination — discrimination based on the ideology the group was founded to convey — that nonreligious groups are free to practice. Perhaps the ban on religious discrimination is thus itself religiously discriminatory, and violates the Free Exercise Clause, because it denies the Christian Legal Society the same right that the Environmental Law Society possesses.
Yet I don’t think that such a position is consistent with Employment Division v. Smith, which concludes that generally applicable laws don’t generally violate the Free Exercise Clause. The ban on religious discrimination applies, both facially and in practice, to all groups, religious or otherwise. The Sierra Club is barred from discriminating against Jews for Jesus as much as the Jewish Legal Society is barred from discriminating against Jews for Jesus. True, the antidiscrimination rule has a more serious effect on religious groups than on nonreligious groups, because religious groups would derive more benefit from the ability to discriminate based on religious ideology. But any law that happens to prohibit a practice that some religious groups find important would have this effect. Peyote laws, for instance, have a more serious effect on religious groups that see peyote use as a sacrament than on most secular groups whose members may just want to experiment with peyote. Yet such a disparate impact, even when it substantially burdens a group’s exercise of religion, does not even render unconstitutional criminal prohibitions of practices. It surely wouldn’t bar the exclusion from benefit programs of groups that engage in those practices.
5. So my bottom line: I see the value of student groups that limit membership to those whose religion, sexual orientation, or even race or sex are in keeping with the group’s ideological purpose. I don’t think universities should deny funding to such groups. And I think those groups generally have a constitutional right to discriminate in their choice of leaders and members.
But just as the right to abortion, speech, or private education doesn’t yield a right to government funding of abortion, speech, or private education — and isn’t even violated by rules that expressly exclude abortion, certain subject matters of speech, or private education from generally available benefit programs — so the right to expressive association isn’t violated by rules that give benefits only to groups that organize themselves in a certain way. And while these conditions on funding would be unconstitutional if they discriminated based on the viewpoint of the groups’ speech, a ban on discrimination in selecting members or officers is a ban based on conduct, not on the viewpoint of the groups’ speech.
UPDATE: A request: I’m sure many of you take a different view, and I’d be happy to see it expressed in the comments. But if you do so, could you please also explain how you’d deal with a university’s decision to fund only groups that are run by students, or that operate democratically — and, if you reach a different result for those rules than you would for antidiscrimination rules, what you see as the constitutionally relevant distinction. Thanks!
Orin Kerr says:
Very helpful post, Eugene. Seems pretty persuasive, at least to me.
December 8, 2009, 2:43 amSplunge says:
I don’t think public universities should be funding voluntary student organizations at all. Why am I paying taxes so that UCLA Chicano students (say) can get together and feel ethnic pride? It’s a reasonable argument, a reasonable part of the social contract, that I pay taxes to support the essential mission of the university, which is to educate students. Those activities which the university itself directs and runs, classes, arguably sports programs (mens et manus et cetera), are part of the deal. Random student organizations that can be recognized as not part of the core mission because the university neither implemented nor runs them, are not.
Let them pay for their own organizations, if they are of true value to the members thereof. Problem solved.
December 8, 2009, 2:52 amThe Volokh Conspiracy » Blog Archive » Shaping Up to Be a Big Free Speech Clause Term at the Supreme Court says:
[...] Archives « No Duty To Subsidize Student Groups’ Discriminatory Officer and Member Selection Decisions [...]
December 8, 2009, 2:52 amAnon Y. Mous says:
So, if I understand your position, a university shall have the right to impose student fees as a condition of attending the university, and then to distribute those funds only to student groups which comply with its criteria regarding the groups’ speech about matters such as race, religion, nationality, etc.
As to your examples: I would argue that a student group that is not run by students is by definition not a student group. Since the funds are only for student groups, then groups that have non-student leaders (or members, for that matter) would be taking student funds and spending them on non-students. I don’t see the constitutional problem in making that distinction.
And contrary to your other example, I would argue that it would be a misuse of funds to ever take student funds and distribute them to non-democratic groups. How would such groups even get started? Someone with the right connections to those who decide who gets the funds in the first place? Some little cabal who can form their little group, write bylaws stating that nobody can ever displace them no matter what, and then they would have a right to continued funding indefinitely?
I think a good place to start with evaluating how the money can be distributed would be to examine whose money we are talking about. It is student money, collected through a tax on students for the purpose of funding student groups. The last thing we need is the university then deciding which groups’ speech comport with its standards.
December 8, 2009, 3:10 amBerkeleyBeetle says:
I wonder if the actual constitutional issue may end up being much more fact-dependent than this. If a group of students of viewpoint A, who make up a majority, ensure that no group of students of viewpoint B are ever able to form by simply flooding any such group that attempts to start, the university’s policy of “take all comers” has, in effect, imposed a viewpoint-discriminatory standard for recognition. (the previous post goes into how plausible such a fact pattern is)
Perhaps an analog is fees imposed by student referendum. If the process of allocating fees was done through majority vote, would it still be viewpoint-neutral? (I recall one of the cases incidental to the Southworth case went into something along these lines, but I don’t know how widespread the issue ever became) Again, the specific facts of the student group recognition policy, what benefits groups receive, and how they get those benefits, may be relevant.
December 8, 2009, 3:43 amRequired says:
Actually there are a large number of non-democratic student groups – many student papers, for instance, have editors selected/voted in by the outgoing editors, and have you thought of how a sports team could rule itself democratically?
The point about fees however is spot on, the government is collecting a tax from students specifically for the purpose of supporting student organizations, this would require there be a government obligation to support student organizations. If, instead of student activity fees, student organizations were funded with money from the state’s general revenue fund I can see there being no obligation on the government’s part to fund any student activity, but that it not the case. If student organizations are funded with tuition money it gets murkier, can the government legitimately discriminate against students groups which a pedeological purpose in allocation tuition funds?
December 8, 2009, 4:37 ampublic_defender says:
Lots of non-profits outside of universities do the same thing (see here, for an example of one such fight; also, one of the Conspirators regularly complains that the Dartmouth trustees are doing something similar). The practice has it’s advantages and disadvantages. The practice can be used to exclude members who take a contrary position on a matter of genuine dispute. But it also helps a group maintain its current identity because the current leadership picks successors. People who don’t like the group can quit or not join.
Requiring democratic selection might permit, for example, a bunch of Jews for Jesus students to show up for an Orthodox Jewish group’s meeting and vote to change the direction of the group. Likewise, a pro-choice group showing up at a pro-life group and the other way around. Conservatives could start an a “traditional marriage” group and gay students could show up and vote to make the group support gay marriage. If that happens in the middle of a funding cycle, that could leave the original members out in the cold.
Universities could deal with non-democratic groups by requiring a certain number of members. If enough students don’t sign up to support a group, it loses funding. So if a few people want to start a group and maintain power, they still have to persuade others to join.
All that said, a democratic form makes more sense as a matter of policy. Given the small amount of year-to-year funding and usually limited bank accounts, the incentives for gamesmanship are limited at universities. Why not just form your own group and wait for the next funding cycle? The Cold War Mutually Assured Destruction could also deter groups from trying to take over each other.
Finally, as a matter of policy, Christian groups should be wary of seeking funding from Caesar. If you take Caesar’s money, you get stuck with at least some of Caesar’s rules. Instead, why not raise your own money or seek it from like-minded Christians? Then, if necessary, meet off campus? There are plenty of social networking sites that would allow you to reach out to fellow students, so the need for student facilities is not as important as it used to be. That way, instead putting your energy into seeking Caesar’s approval, you can put your energy into your faith.
And yes, non-Christian groups should think about the same thing. Are you forming a group because you have some real need for the school’s assistance or facilities? Or do you just have an emotional desire for the university’s stamp of approval?
December 8, 2009, 5:55 amEvilDave says:
Yes, but it would be Politically Correct.
December 8, 2009, 7:04 amSandy MacHoots says:
I’m curious. Under Prof. Volokh’s analysis, how could a university support a women’s basketball team that does not admit men, but not a Muslim organization that does not admit atheists?
December 8, 2009, 7:16 amEric Rasmusen says:
These policies in effect only ban Christian groups, as far as I’ve seen. And they are straining at gnats while swallowing camels. How can a university that is so picky about irrelevant by-laws (do Christian groups really exclude non-Christians from coming to their meetings and getting the benefits of membership, for example?) allow organizations with names like the Muslim Student Association or the Christian Fellowship or the Black Students Association? The names themselves say “discrimination”. Officially, don’t the rules allow a Ku Klux Klan Whites-Only Protestant Student Association so long as its by-laws allow black Roman Catholic members? If it doesn’t, how can it allow a Black Students Association (or, if you like, a Black Muslim association)
December 8, 2009, 7:29 ampublic_defender says:
Eric Rasmusen,
Under the rules, the Muslim or black student associations would have to permit non-Muslim or non-black students to join, just like Christian organizations must permit non-Christian students (or even insufficiently Christian students) to join. The Klan could start a student organization, but it would have to permit Jewish and black students to join.
To the professor’s questions, a policy could permit non-democratic groups by requiring groups to have a certain number of members before becoming eligible. Permitting one year’s leadership to pick the next has its disadvantages (they may exclude valid points of view), but it also has the advantage of not permitting people with opposing ideas to show up at a meeting and changing the direction of the group–for example, Jews for Jesus taking over and Orthodox group or the other way around. Students could choose whether they believed in the leadership enough to join.
On another point, Christian student groups (actually, all ideological or religious groups) really need to think about whether they want to deal with Caesar. If you take Caesar’s money or use Caesar’s facilities, you will have to accept at least some of Caesar’s rules. Instead, why not raise your own money or seek funding from like-minded churches?
December 8, 2009, 7:51 amAndrew L says:
Until this point, Professor Volokh, you were discussing whether or not an institution may deny funding to a group that discriminates based on religion, race, sex, etc. As you pointed out, this is separate from the question of whether or not these groups may organize in the first place. But here you seem to be discussing the question of whether or not a group may engage in an particular practice at all – regardless of whether or not it receives funding.
Under the analogy from peyote laws, then, shouldn’t a university not only be permitted to deny funding to any group that excludes, let’s say, non-Christians, but also be permitted to ban the establishment of any such groups? This should be perfectly consistent with the Free Exercise Clause since both the Sierra Club and the Christian Legal Society would equally be subject to this ban, notwithstanding that such a ban would have a more serious effect on the Christian Legal Society.
Similarly, your reference to bans on abortions in state-run hospitals is of a different character than your other examples. Isn’t banning abortion different than refusing to subsidize private education? And if banning abortion in state-run hospitals is constitutionally valid, then why not barring the establishment of Christian groups?
December 8, 2009, 7:51 amjrose says:
Under the analogy from peyote laws, then, shouldn’t a university not only be permitted to deny funding to any group that excludes, let’s say, non-Christians, but also be permitted to ban the establishment of any such groups
Under Free Exercise, yes. But not under Free Speech per Dale.
Free Speech permits not subsidizing discriminatory groups, but prohibits an outright ban. Free Exercise permits both not subsidizing and outright bans. Taken together, you reach Euguene’s result.
December 8, 2009, 8:06 amAndrew L says:
Jrose,
Okay, that makes sense. Just to make sure I understand, then, would a state be allowed to prohibit, let’s say, circumcision in the same way that it may issue peyote laws? Such a ban would apply equally to all, even though it would prohibit only Jews from practicing a central tenet of their faith. In other words, how (if at all) would one distinguish between peyote and something like circumcision or one of the Christian sacraments or what have you? I guess it’s just that a peyote ban seems less egregious to me than the other two examples – but I’m willing to admit that there may not be a good legal basis underlying my feeling.
Also (and forgive my lack of familiarity with the relevant law), does Dale apply to private groups established within the context of a public university; meaning, when Prof. Volokh talks about what public universities should do “as a matter of public policy,” does he mean to offer a suggestion as to what they should do, or endorse what they must do anyway?
December 8, 2009, 8:30 amLaura(southernxyl) says:
I wonder, if universities didn’t fund student groups at all, would that allow for a decrease in tuition.
It seems to me that if students want to have a group, and the group requires funding to operate, then the students who want the group could come up with the money.
Years and years ago, Memphis State University (now University of Memphis) fired its white head basketball coach and had a black assistant coach take that job on an “acting” basis while the school undertook a nationwide search for a replacement. After some time, and a lot of pressure, b/c the acting coach was winning games, they stopped looking and went on and hired him. Right away there was a problem, b/c one of the perks the head coaches always got was membership in a country club that didn’t admit black folks. At first the coach said he probably wouldn’t want a country club membership anyway, and then he came to his senses and said that if there was something he was supposed to get, then he wanted to get it. At that point the state stepped in and wondered why anybody was getting a country club membership, and they did a sweeping overhaul of the compensations that athletic employees got at all of the state universities; and all of that crap got cut out, for everyone. Which, from the POV of the tuition-paying students, esp. the non-athletes, could only have been a plus.
December 8, 2009, 8:55 amPersonFromPorlock says:
As I remarked on an earlier thread, much of the law’s complexity comes from trying to have it both ways. Splunge has it exactly right, public universities shouldn’t fund private associations at all. Attempting to do so only results in tortuous rules as schools try to rationalize irrational distinctions.
December 8, 2009, 8:58 amjrose says:
Andrew,
If the circumsion ban was a pre-text directed at Jews it would fail. But if it were justified by a truly religious-neutral consideration that only incidentally impacted Jews, it would pass Constitutional muster.
It is my understanding that Dale applies to any private speech, including speech engaged by groups at public universities. I think Eugene is saying allowing discriminatory groups (without subsidy) is both a “must” and a “should”. But his view is limited to “should” when it comes to subsidies.
December 8, 2009, 9:12 amSerendiptity says:
This debate is currently raging at my own University, though it is a private one. A Christian Group removed one of its leaders after he announced publicly that he was homosexual. He was removed from his leadership position, but not removed from the group.
I think I would agree that a university should fund groups whose voting membership is open to all, but should draw the line at preventing groups from discriminating in their leadership. After all, the likelihood of an atheist joining the Christian group seems fairly small, but if it were to happen, the Christian group should not be forced to accommodate a leader whose views do not coincide with the group’s. If students pay an activity fee, seems to me they have a right to be a member of any group being subsidized by that fee. No one, however, has a right to be a leader of a group.
Is there any Constitutional basis for such a line?
December 8, 2009, 9:36 amTuesday Round-up | SCOTUSblog says:
[...] Law. The BLT and ACS Blog also have coverage, as does The Volokh Conspiracy, where Eugene Volokh argues that a rule which limits funding to student groups that organize themselves in a certain way does [...]
December 8, 2009, 9:37 amSara says:
1)Attending the university is voluntary, thus, so is the student fee.
2)If the fee is paying for the student orgs, your taxes are not paying for them.
3)If you want no student orgs, pass a law.
December 8, 2009, 9:41 amSara says:
If all groups are democratic, its up to the membership whether that person becomes a leader. I don’t see how a public university could possibly determine who is a true Christian.
December 8, 2009, 9:45 amLaura(southernxyl) says:
Sara, that’s true, but I still remember the irritation I felt when I went to university to get an education and a degree, and found out what my involuntary activity fee was supporting. Too much stuff comes in under the radar, IMO, when the incoming students are properly focused on what the school ostensibly is set up for.
December 8, 2009, 9:47 amSerendiptity says:
I should clarify. The student group removed him from leadership after his publicly came out, and the debate now is whether the group should continue to receive funding from the student activity fee given that they “openly discriminated” against this student on the basis of his sexual orientation. I guess my argument is like Eugene’s in that I would say the university should be free to only democratic student-run organizations, but I would not require a rule that said “leadership positions must be open to all.”
December 8, 2009, 9:50 amRob in CT says:
I’d lean toward “why is the university funding this stuff at all?”
My college didn’t fund my fraternity, which makes sense. There was an optional (you had to opt-out, not chose to opt-in) fee that went toward various student groups. I think they had the option set up backwards (obvious why they did, though).
Not funding these groups would untangle universities from this sort of messy wrangling. Added bonus: the conservative victim complex (they only do this to Christians! War on Christianity!) would take a hit.
December 8, 2009, 10:04 amox says:
None of the comments so far seem responsive to the request in the update, which is to explain why anti-discrimination rules are constitutionally suspect, when rules about funding only student groups and only groups with democratic procedures are not. What explains the difference?
I assume that, after Rosenberger, the question is whether universities can limit public forums to groups that don’t discriminate. This isn’t just a provision of subsidies. These subsidies — access to classrooms, etc. — have been interpreted as establishing a public forum.
So now the question is whether anti-discrimination norms infringe on the expressive rights of certain groups, and it’s hard to avoid the conclusion that they do, in ways that the other two requirements (i.e., all student membership and democratic process) do not. The power to exclude has direct implications for the power of a group to advance its message. This seems clear after Dale. But to give an example, consider the Jewish Legal Society mentioned in the post above. Now suppose JLS couldn’t exclude on the basis of religion. Suppose further that the members of some other religious group, perhaps Jews for Jesus, decide to join JLS in sufficient numbers (maybe there aren’t very many Jews on campus) to change the charter of JLS so that it better reflects their beliefs. To limit their membership and thereby secure their message, the initial members of JLS must withdraw from the university’s public forum (i.e., forgo receiving subsidies).
Professor Volokh has a couple arguments for why this doesn’t violate the First Amendment. The first is that anti-discrimination norms restrict conduct, not speech. But this is not persuasive, at least not after Dale (and some of the earlier parade cases), and for reasons having to do with the JLS example from above. Restricting membership bears directly on a group’s power to express its views.
Second, Professor Volokh claims there is no viewpoint discrimination. This really is the heart of the matter. If there is viewpoint discrimination, then we know from Rosenberger (among others) that the regulation is impermissible. The question, then, is: how persuasive is Professor Volokh’s argument that anti-discrimination norms are viewpoint neutral? It isn’t entirely clear from the post what the proper test is for viewpoint neutrality. Must university administrators aim to exclude certain viewpoints? If so, there might be evidence for that in some cases. But perhaps the test doesn’t turn on aim or purpose. In Rosenberger, the university excluded religious groups. Here the university is excluding groups that discriminate on certain grounds, which are highly salient to the messages of those groups. There seems to be at least some analogy here, if not a perfect one.
In any event, the answer to Professors Volokh’s update request is that the anti-discrimination rule infringes far more seriously on the expressive powers of groups than do the all-student or democratic process rules. Because we’re dealing with public forums, and because membership restriction is expressive (or necessary to control expression), burdens on membership may be constitutionally suspect. Though, of course, anti-discrimination may be sufficiently compelling to override these considerations in the university context — something not discussed in the post above, but nevertheless a distinct possibility.
December 8, 2009, 10:05 amShelbyC says:
It’s important to remember that in the aggregate, there is no such thing as government benefits or subsidies, government involvement is zero sum. So in the case of not subsidizing religious organizations, they are simply taking your money and only giving it back if you join an organization that isn’t religious.
December 8, 2009, 10:07 amSara says:
1) Laura, I agree that students should know what they are doing. I sometimes take classes that interest me at the local state school and have no interest in any of the orgs. I would be happy not to have to pay the fee but I do.
2) Saren – As it’s a private school, I can only suggest that your university have a policy up-front re this, then all know what the rules are going in.
December 8, 2009, 10:07 amG.R. Mead says:
In answer to the update challenge, “operating democratically” and undemocratically limiting membership to students (or any other limited subset thereof) are not anomalies. They are reflections of the Constitutional principle itself. The Constitution is an intentionally and profoundly undemocratic document. It frames the institutions of a republic, not a democracy; though operating in parts according to democratic principles, it is not derived from those principles. The Constitution uses democratic principles like the internal combustion engine uses gasoline, sparingly, with great precision, and in a highly determinate order. Raw democracy was always seen for what it is — explosive stuff — to be closely harnessed, and NOT EVER to be unleashed.
“Consent of the governed” is the bedrock principle of the Declaration as effected by the Constitution. The operation of democratic rule is but ONE tentative measure of that consent (and a very rough one, at that). Most of the protections of consent lie precisely in the prohibitions and hedges against government action — to avoid intruding unduly on the presumed lack of consent — and much of those hedges we have progressively lost (and the progressives have caused most of it).
Two things operate in government by consent — consent and non-consent. If one refuses to consent to associate under the rules and structures of a voluntary government that others consent to be governed by, one is excluded from that association — by one’s own consent (in refusing to willingly associate). This is true of private as well as public institutions. If I do not agree with the principles of the Baha’i student association, I free to withhold my consent and refuse to associate or be governed by their views or rules. Similarly, if I find the laws of Florida oppressive, I am free to move to Alabama, or Alalska for that matter, or leave the country altogether.
To dictate to a group that defines their own undemocratic principles of association (whether of religion, geography, ancestry or whatever other principle of affiliation) in the name merely of “democratic principles” is simply democratic tyranny, not liberty. If I am not free to dissociate into a subset of “Hispanic Students Association” from the larger set of subset of “all students,” I am fundamentally not free to associate with those of like mind, because to do so is precisely to dissociate from those of other mind.
A white european group calling itself “The Race” would be penalized in loss of subsidy in most university settings today and yet a racially defined group by the exact same name in Spanish “La Raza” enjoys uncritical support. Why is that?
Neither is a very wholesome view of the issue of race, in my opinion, but why should the association in the one sense be supported and the association in the other sense suppressed — except on the prohibited basis of the particular “race” concerned ? Or in the context of religion, or political speech or artistic expression, or whatever. Either subsidize none or subsidize all, there can be no reasoned basis for discriminating between them other than a simple majoritarian diktat — which in this instance penalizes the principles of free association and government by consent in forming those associations and their rules of structure and exclusion.
December 8, 2009, 10:07 amDjDiverDan says:
Your post makes sense in theory, but completely falls apart in practice, where School administrators are given the power to decide just which groupd meet their “non-discriminatory” criteria. Take the Hastings Law School case, where the decicion was that the Christian Legal Society was not qualified for Student Activity Fee funding, but vaious groups like Gay & Lesbian Law Students, the radical feminist law group, and the Black and Hispanic law groups were determined to be “non-discriminatory”, even though their constitutions or by-laws required members to generally support the purposes of the groups. So, while I could be excluded from the Christian Legal society as a Jew, Atheist, Agnostic, or Buddhist, I could also be excluded from the Gay & Lesbian Group if I happened to oppose same-sex marriage, I could be excluded from the Radical Feminist Group if I thought that accepting gender differences in laws and regulations was appropriate, and I could be excluded from the Black Law Students group if I opposed affirmative action (if Clarence Thomas went to Hastings, do you suppose that they would have kicked him out of the Black Law Students’ association?). Even if the Constitution or By-laws of these groups are completely non-discriminatory, do you actually think they will be applied that way in practice? If the School administrators know that the Radical Feminist Law Students are kicking out the sane members (yes, that is a jab at radical feminism) or that the Gay & Lesbian group is kicking out the straight members, or even just those opposed to same-sex marriage or other GLT “civil rights” causes, do you honestly expect the administrators to police these groups with equal vigor that they applied to the Christian Legal Society? There is only one option that, as a practical matter, is certain to be completely non-discriminatory; Student Activity Fees are never used to support any student-organized group, and all groups, of whatever polical or religious stripe, and regardless of racial, gender, or life-style make-up, are given equal access to school facilities and media (like announcements in the School Newspaper or posted on the School Bulletin Board, etc.). Only this takes the discretion away from School administrators.
December 8, 2009, 10:13 amShelbyC says:
“Yet a rule denying benefits to groups that discriminate in choice of members or leaders based on applicants’ race, religion, or sexual orientation restricts groups based on their actions ”
Either I’m missing something or this isn’t persuasive at all. If I want to form a group with a religious viewpoint, “Christians against high taxes” I can’t do so unless I can discrimatite based on religion. Otherwise I can only form the group “Againt high taxes”.
December 8, 2009, 10:23 amcaliforniamom says:
Didn’t the California state bar have a similar situation? That is that the mandatory fees imposed on all members of the bar were going to sections of the bar with a point of view that not all bar members supported. Now bar members can opt out of those sections, with a concomitant fee reduction. My memory is hazy on this but I seem to remember that a court ruled that the state bar couldn’t force bar members to support causes with which they disagreed. Similarly, the mandatory activity fee at a state university should be voluntary. Christian students shouldn’t have to support the Muslim Student Assoc. and vice versa. Let these groups be self-supporting with membership dues. Why should the university be involved at all?
December 8, 2009, 10:26 amShelbyC says:
But the student fee is trivial compared to paying rest of the costs of the university, and those are not voluntary, whether you attend the university or not.
December 8, 2009, 10:29 amSara says:
Sure, Shelby, exercise your democratic rights to close the university, or the orgs, or other legal options.
December 8, 2009, 10:36 amJoseph Slater says:
I’ll echo Orin’s praise for EV’s post. It will be interesting to see how much force Dale has outside the specific facts of that case.
Beyond that, it’s worth focusing on the particular facts of this case, because I don’t think there has been or will be any great trend of students seeking to “take over” student groups and twist them to purposes opposed to their original goals. This case (and cases like it) arose because the Christian Legal Society, as a national group, believes it should exclude gays and lesbians — or at least those who don’t think their behavior is a sin. Meanwhile, many gays and lesbians sincerely believe that their sexual orientation is not inconsistent with Christian teachings. And a number of straight Christians agree with them, although a number disagree, including the national leadership of the CLS.
So, although arguably the same legal rules would apply, we’re not going to see student National Lawyers’ Guild members trying to take over the local Federalist Society chapter, or vice-versa; nor Muslim student groups trying to take over Jewish student groups, or vice-versa. It’s more of a battle over what “Christianity” means, as an expressive identity under Dale and otherwise, complicated by the existence of a neutral non-discrimination policy.
December 8, 2009, 10:39 amSara says:
Cal. Mom, Your policy argument can be addressed to the legislature but mandatory student fees were found to be in accord with the first amendment (distinguishing professional and union fees) in a case in 2000, involving the U Wisc, as long as the University does not discriminate against students.
December 8, 2009, 10:42 amThe Volokh Conspiracy » Blog Archive » More on Christian Legal Society v. Martinez says:
[...] group from discriminating on the basis of sexual orientation. My analysis is a bit different than Eugene’s below. Here’s the transcript, which is available at 31 North Carolina Central Law Review 207 (2009), [...]
December 8, 2009, 10:48 amEric Rasmusen says:
I know it’s a separate post, but I’d be interested in Prof. Volokh’s view as to the best policy outcome, as opposed to the most consistent constitutional law argument under current, contrived-and-result-oriented, Supreme Court constitutional law.
Specifically: I know libertarians would probably oppose having public universities at all, and maybe oppose having them fund student groups if they do exist. Let’s take all that as given– that a public university is going to spend $100,000 on student groups and give out 20 office rooms to them. Should it reject an otherwise worthy group that requires officers to be Christian?
December 8, 2009, 10:48 amSara says:
Eric – What if the officers come to a disagreement on who is a true Christian (Christian group members have been known to do that). How is the public university to decide?
December 8, 2009, 10:58 amSandy says:
So a school could pass an anti-discrimination policy that read “Student groups cannot exclude members on the basis of race, sex, or a person’s status as a member of the Democratic Party”? That clearly puts a burden on the ability of students to express a Republican viewpoint, and favors the expression of the Democratic message. In contrast, the requirement that all students be able to join all clubs, and all groups run as a democracy does not, on its face, burden any particular viewpoint. It could in application as the all-comers reflect a majority-rule bias that could infringe minority views in application (but need not.)
The attempt to distinguish Rosenberger by saying that that was speech and membership-control is action, and therefore this does not have high 1st A protection, is not persuasive. The SC has made clear that private associations’ ability to control their membership is of utmost importance under the 1st A. Yes, it is an action to exclude a member based on her views, but it is an action that has a great deal of protection under the 1st A. Thus it should receive the same protection as Rosenberger: the school cannot burden student groups’, who speak for themselves, ability to select their members in a viewpoint discriminatory way.
Generally speaking, the discrimination categories have nothing to do with the viewpoint of the student group and thus cannot be challenged on the basis of their infringing on the right to expressive association. However, religion – which is the ONLY view singled out in most anti-discrimination policies – when applied to religious (including atheist) student groups, infringes on the religious (including atheist) student groups’ ability – and only those groups – to express their message.
It is somewhat strange to construe religion as a viewpoint, but the SC already chose to do so in Rosenberger so that issue is settled. The fact that anti-discrimination policies in this context obstruct the ability of student groups to select their membership based on only one viewpoint (religion) means that this case (if we ignore the 9th Circuit’s construction of the facts as all-comers) is identical to Rosenberger except that, instead of concerning the right of free speech in the context of “public forum” subsidies, it concerns the equally fundamental right to expressive association in the context of “public forum” subsidies. There’s simply no evidence that the SC thinks that the right to expressive association (and the membership control that directly affects that right)is of minor importance and therefore would receive only the middling protection that Volokh suggests.
December 8, 2009, 10:59 amincorrect says:
No, the correct analogy is “a person’s political affiliation.”
And as EV’s post clearly points out, the right to expressive association and the right to get money for that association are very different rights (as in the latter does not exist.)
I think the clearest analogy stems from Dale itself. In Dale, the Court held NJ couldnt force the Boy Scouts to accept him. But there is no constitutional difficulty arising out of the scores of local governments who have, in the wake of Dale, decided to stop subsidizing the Boy Scouts in light of their anti-gay policy.
I think Justice Scalia’s vote will be interesting here. He generally is quite clear that first amendment rights don’t include rights to be funded. But I have trouble seeing how you got to 4 votes for cert without him.
December 8, 2009, 11:10 amcaliforniamom says:
It’s ironic that the UC is arguing that it shouldn’t support discriminatory groups. Having just helped my son fill out his UC application, (with a myriad of racial questions which of course they won’t use in admissions, ha) and with a whole list of scholarships, the criteria for which is often based on race. (Yes, the money for these scholarships is private, but the university is using state resources to administer who qualifies for the various private scholarhips). The list was almost comical. Do you or an ancestor come from a particular province in China? Are you of Hispanic, English, Irish descent? Are you of Serbo-Croatian descent who is from Butte County and had a firefighter family member die in the line of duty? (OK, that last one is sarcasm). But you get the point.
December 8, 2009, 11:24 amShelbyC says:
But the whole point is that the democratic process isn’t supposed to divert resources away from my organization based on the fact that is has a regligious viewpoint, as opposed to a non-religious viewpoint.
December 8, 2009, 11:27 amShelbyC says:
So the university has the right to fund a Democratic group but not a republican one? The right is not one to be funded, it is the right not to have your viewpoint taken into account when making funding decisions. Religon here is a little different than race or sexual orientation, because it is a viewpoint. So arguably it should be treated differently for free expression clause reasons, not establishment clause reasons, so Smith is inapplicable.
December 8, 2009, 11:35 amjrose says:
ox: Here the university is excluding groups that discriminate on certain grounds, which are highly salient to the messages of those groups.
Isn’t it viewpoint neutral if they also exclude the Gay Student Alliance from having voting members who do not advocate or have gay sex?
Sandy: However, religion — which is the ONLY view singled out in most anti-discrimination policies — when applied to religious (including atheist) student groups, infringes on the religious (including atheist) student groups’ ability — and only those groups — to express their message.
In this case, CLS violated the sexuality discrimination rule, which applies equally to groups based on either their religious or secular viewpoints. Even the religious discrimination provisions apply equally to groups based on religious and secular viewpoints. It appears you have a disparate impact claim.
December 8, 2009, 11:37 amSara says:
I thought the whole point was that the Constitution forbade the democratic process from supporting or opposing your or my religion, by adopting neutral rules.
December 8, 2009, 11:45 amTweets that mention The Volokh Conspiracy » Blog Archive » No Duty To Subsidize Student Groups’ Discriminatory Officer and Member Selection Decisions -- Topsy.com says:
[...] This post was mentioned on Twitter by Moshe Glickman and Golf HonchoNow, Eugene Volokh. Eugene Volokh said: No Duty To Subsidize Student Groups’ Discriminatory Officer and Member Selection Decisions: The Court has agree.. http://bit.ly/86Ipje [...]
December 8, 2009, 11:49 amSupreme Court Will Decide on Religious Student Groups vs. Nondiscrimination Policies « NAS Blog says:
[...] Volokh: But just as the right to abortion, speech, or private education doesn’t yield a right to government funding of abortion, speech, or private education — and isn’t even violated by rules that expressly exclude abortion, certain subject matters of speech, or private education from generally available benefit programs — so the right to expressive association isn’t violated by rules that give benefits only to groups that organize themselves in a certain way. And while these conditions on funding would be unconstitutional if they discriminated based on the viewpoint of the groups’ speech, a ban on discrimination in selecting members or officers is a ban based on conduct, not on the viewpoint of the groups’ speech. Categories: Uncategorized Comments (0) Trackbacks (0) Leave a comment Trackback [...]
December 8, 2009, 12:04 pmShelbyC says:
I’m not sure how what you’re saying is different from what I’m saying. If I have a group that limits its membership to people who believe in the spiritual power of Budda, and other groups limit their membership to people with other viewpoints, by transferring money from my group’s members to the other groups’ members, isn’t the government opposing my religion because it doesn’t like religious viewpoints?
December 8, 2009, 12:11 pmSara says:
Eric- If its rule is that no funds go to Buddah groups, than yes its discriminating. If its rule is that any student is allowed to join any group, than it’s not.
December 8, 2009, 12:19 pmSara says:
Sorry, that should be to Shelby.
December 8, 2009, 12:27 pmShelbyC says:
The rule is that no funds go to groups that limit their membership based on religious viewpoint. Groups are free to limit their membership based on any other viewpoint.
December 8, 2009, 12:27 pmSara says:
I don’t think that’s the rule, Shelby. Rather, students with any viewpoint can join any organization.
December 8, 2009, 12:40 pmShelbyC says:
Sorry, I was still in by Budda hypo :-)
December 8, 2009, 12:56 pmSandy says:
Sara, the rule Shelby spelled out is the rule at issue. (The 9th circuit appears to have misstated the original facts.)
If one concedes that the policy could not say “Student groups can reject members on the basis of any viewpoint but atheism” – a policy which clearly burdens the religious viewpoint, and therefore religious groups’ right to expressive association – then the only thing one is arguing with is whether “religion” itself IS a viewpoint. The SC already said it was. One can certainly argue with that holding, of course, but it is current doctrine.
December 8, 2009, 12:57 pmChris Travers says:
To me there is a big question over what constitutes “funding” and the difference might well be felt depending on how this is defined.
If “funding” is narrowly defined (as in providing operational funds to be used at the discretion of the organizaton), then I certainly agree with Professor Volokh. The problems that occur to my mind occur when funding is defined quite broadly in a college setting, such as providing space for meetings, etc. then I think certain problems become evident. For example, a college could, under the guise of not “funding” an organization make it impossible for such an organization to operate except through substantial outside funding (for example, charging rent on all meeting spaces, etc). At some point, it could possibly become Constitutionally impermissible.
Hence I would suggest that colleges might have an obligation to reasonably accommodate all student groups even if they don’t have an obligation to provide operational funds. Money spent on such accommodation really should be considered separate from a question of funding.
My concerns thus end up boiling down to the following scenarios (all groups being fictitious to the best of my knowledge):
1) If, say, the Campus Pagan Society wants to meet at a college room (not a perfectly public area) can the college charge them for it any amount at their discretion? Or just cover the marginal costs of the actual use? If the latter, does this mean that amortized expenses of the facility maintenance (for example, amortized cost of, say, roof maintenance) count as “funding?”
2) If the Young Klansmen want to meet in a public area of the college, can the college insist that they pay for any added security the college things is required (presumably a hefty fee)? If not, does the provision of such security count as funding?
3) Can a campus refuse to accommodate such an organization at all? Can a college, for example, say that a given group, because it is discriminatory, may not use campus facilities at all for their meetings (assume the group is large enough to exceed the maximum occupancy of typical on-campus housing units and thus would also be banned from meeting there due to fire safety issues)?
December 8, 2009, 2:06 pmRandy says:
I really don’t understand why there is any problem at all. There should be basic criteria that any existing or new student group should satisfy — membership is open only to matriculating students, and membership should be open to all students. Take over fears are unfounded and in my experience never happen. If they do, the affected students can merely start up a new group and call it something else.
“Objectivists might limit membership or officer positions to Objectivists, and the Sierra Club might limit membership or officer positions to environmentalists. Religious groups, the argument would go, should have the same right, and should thus be exempted from bans on religious discrimination, which to them are bans on the very same form of discrimination .”
Any student group that would discriminate on membership would be very foolish. If I’m 19 years old, I may have read Rand and think, perhaps I’m Objectivist, but I’m not sure. So I join the group to see what they do and think. Perhaps I’m persuaded, perhaps not. That’s part of the learning process and the growing up process, which, in my view, is an essential component of education. (Which is why I have no problem with tax dollars used for this purpose).
Most religions want to expand their ranks and would welcome newcomers Limiting membership to only those who have demonstrated their commitment in some fashion defeats that purpose. Which they can do, of course, but it’s nonetheless foolish.
“5. So my bottom line: I see the value of student groups that limit membership to those whose religion, sexual orientation, or even race or sex are in keeping with the group’s ideological purpose. I don’t think universities should deny funding to such groups. And I think those groups generally have a constitutional right to discriminate in their choice of leaders and members.”
I don’t see the value of limiting membership for any reason. Part of the university experience is to open your mind to different ways of thinking, and it would be good for any group to have differences of opinion. They might argue about their policies, take votes, rewrite their bylaws, have hard feelings, and so on. That’s all part of the learning process and learning how to compromise and deal with people of differing values. In short, it prepares students for the real world.
If a Gay and Lesbian group had to admit Christians who oppose homosexuality, that would be a good thing. Both sides would have to learn to deal with each other in a civil manner. if they don’t, the group breaks up or becomes so self-absorbed in internecine fighting that it hampers it from doing anything else, and everyone loses. Likewise, if a Catholic group has to admit gays or muslims as members, they might open a few minds as well.
As for the leadership, the membership should be able to choose whomever they want as their leader. My experience is that most students groups take leadership positions fairly seriously and really want to advance the groups agenda, grow membership and do lots of activities on a tight budget. The leaders often do a good job., but sometimes they don’t. It doesn’t really matter because their term is almost always one year, and so the long term impact is virtually nil.
December 8, 2009, 3:21 pmRandy says:
Chris: “To me there is a big question over what constitutes “funding” and the difference might well be felt depending on how this is defined.”
Our school had no such problems. Students were assessed a mandatory student activity fee. This funded everything from intramural athletics to special interest groups (the Chess Club) to ethnic pride groups (Puerto Rican Student Association) to funding annual beerfests and concert programming). Since the fees covered so many activities, every student was happy to pay the fee because virtually every student benefited from the activities. We almost never had anyone complain about paying it, and at the time, we had 25,000 full and part time students. (Heck, we even had a separate division for part time students and for ‘non-traditional’ students so that they received funding for their interests, and they also had guaranteed representation). Under this system, basically anyone could get a student group recognized, and that’s why so many existed. But if they couldn’t sustain themselves for a year or so, they would be dissolved, so very narrow special interests just didn’t last very long.
The fees were distributed by students elected by the student body for just that purpose. Any student group could ask for funding, but they had certain criteria that they had to meet before they would be recognized. They had to be open to all, and totally nondiscriminatory, for instance. Once they had recognition, then they had free access for use of meeting rooms and other basics. They would just have to sign up for it in advance.
As for funding, each year they had to submit a budget, which would be reviewed by students. Last years budget would be reviewed to see how money was spent, and the entire Student Association, comprised of students elected for this process, would vote on funding. It no one showed up for the committee hearing, they automatically got the big donut – zero funding. This happened fairly often, believe it or not.
The only problem we ever had was funding NYPIRG. They collected the funds that were budgeted, then the funds were sent to the state-wide office and these funds were then redistributed back to various colleges and campuses. We cut out that funding (at a very controversial meeting) because they weren’t using the funds properly to stay on campus. In other words, their accounting process violated our rules, so out they go! Eventually, they came up with a new accounting system that satisfied us, and funding resumed, albeit at lower levels.
If you let the students make all the decisions, then they take the heat. Make it open to all, and it works itself out. Have basic safeguards in place. Let a thousand flowers bloom.
December 8, 2009, 3:35 pmptt says:
Hate the sin, ban the sinner.
I guess that’s the new (well, really, rehashed traditional approach that once upon a time brought us burning at the stake) approach in “Christian” circles. It’s odd, I would think that a conservative, evangelical Christian group would welcome “conversion opportunities”. Instead, they seem quite happy to talk amongst themselves. Mind you, I consider this a great improvement, but I’m no fan of evangelization.
It certainly wasn’t always like this. Back at Stanford in the mid 70s, as an unrepentant homosexual, I was often invited to join my friend’s Bible-study group. He was a devout evangelical and wanted to save my soul. Times change, I guess.
December 8, 2009, 3:50 pmBZ says:
I do not share a different view, but I can see a legitimate constitutional argument which meets your request:
The constitutionally-relevant distinction would be in the school’s protected right to avoid endorsement. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271-72 (1988)(school district may insure that it is not associated with speaker’s views or with any position on matters of political controversy); id. at 288-89 (Brennan, J., dissenting, but agreeing that the risk of erroneous attribution of views to the school might justify some restrictions on expression). Government plays many different roles in a variety of circumstances, and those roles sometimes generate different results in speech regulation. NEA v. Finley, CBS v. DNC, Rosenberger, Rust, Umbehr. This is, in part, an analysis of government speech and the resulting speech spectrum, on which I know we have slightly different views, but I could see different results for governance questions vs. antidiscrimination rules. After all, no university wants to lose its tax-exemption, a la Bob Jones Univ., on a speech issue. Combine that with the control issue, and I could see a university arguing a constitutional basis for a governance rule requiring students-only. Democratic-only (assuming you mean by this, majority rule) might be more problematic, but also might fall within the university’s ability to control what happens within its facilities. Again, these student groups are perfectly free to operate without engendering any risk of reasonable expectations that the school has endorsed their views; they simply trade off that right.
December 8, 2009, 4:07 pmShelbyC says:
Well, let’s say I’m a lesbian and I want to discuss my lesbian experiences with other lesbians. An easy way for me to do that, especially if there are other lesbians in simialar situations, is to form a group of lesbians who talk about lesbian issues. I’d find it hard to argue that that has no value if that’s what someone chooses. I agree that one should be exposed to other viewpoints, but there are other ways to do that. And I seems pretty clear that folks have a first amendment right to organize themselves in such a way.
And, per my example, the value of limiting membership in a group that discusses lesbian experiances should be clear :-)
December 8, 2009, 4:45 pmAnatid says:
To the contrary, the lesbian group is probably also open to women who are questioning their sexuality and are interested in learning more. You can’t “recruit” someone to a certain sexuality, but college is a time that a lot of folks, straight and otherwise, are figuring theirs out.
December 8, 2009, 4:55 pmjrose says:
However, the anti-discriminatory policy is nonetheless facially viewpoint neutral because the policy applies to secular and religious groups alike. It is true that religious groups suffer a disparate impact, but are not targets of intentional discrimination unless it can be shown the policy was a pre-text aimed at religious groups.
December 8, 2009, 5:06 pmRandy says:
Shelby: “An easy way for me to do that, especially if there are other lesbians in simialar situations, is to form a group of lesbians who talk about lesbian issues.”
And one can always form an informal group of lesbians to do just that. As long as they don’t accept tax dollars or mandatory student funds, they can do exactly that. You can meet in the student cafeteria or an off campus coffeehouse.
Or, you can form a Gay and Lesbian Group, accept the tax money or mandatory fees, and make the group open to everyone. Then you form a Committee, the Gay Chat Forum, that will meet once a week to discuss issues about being lesbian in a lesbian friendly environment. If there is a real problem that some el jerko really wants to crash this party, then you just don’t tell him when the next Forum meets.
December 8, 2009, 5:15 pmDirk Burley says:
Presumably if you wanted to start a fascist student group whose aim was to establish a totalitarian state with you as leader you could try and argue that conditioning university benefits on having a democratically-run student group discriminated on the basis of viewpoint against your group. But that would be very silly.
And it is also very silly to argue that conditioning benefits on the CONDUCT of DISCRIMINATING based on sexual orientation is any different. Unless of course you believe that the government may not discriminate against viewpoint-inspired conduct in which case Title VII is out of the window because if your fired because your black, your boss is entitled to his rascist views.
As for what seems to be some sort of policy argument that students will seriously spend their time invading rival student groups and voting to change their purpose, the university could also pass a rule saying that groups who have a certain number of WILLING participants may not be overrided and that new groups must split off. Yes more rules I know but that’s part of the adults learning process too.
December 8, 2009, 6:03 pmDirk Burley says:
Presumably if you wanted to start a fascist student group whose aim was to establish a totalitarian state with you as leader you could try and argue that conditioning university benefits on having a democratically-run student group discriminated on the basis of viewpoint against your group. But that would be very silly.
And it is also very silly to argue that conditioning benefits on the CONDUCT of DISCRIMINATING based on sexual orientation is any different. Unless of course you believe that the government may not discriminate against viewpoint-inspired conduct in which case Title VII is out of the window because if your fired because your black, your boss is entitled to his rascist views.
As for what seems to be some sort of policy argument that students will seriously spend their time invading rival student groups and voting to change their purpose, the university could also pass a rule saying that groups who have a certain number of WILLING participants may not be overrided and that new groups must split off.
December 8, 2009, 6:04 pmShelbyC says:
But the government took the money I’d use to do that and gave it to the lesbians who choose to express themselves to both lesbians and non lesbians. Your arguement is the same as if the school decided to fund Democratic groups but not Republican groups, and you say, “well, the republican groups can just not accept funding.”
December 8, 2009, 7:18 pmTim says:
I wonder what exactly you mean by “fund.” If the school refuses to recognize your group at all, it can refuse to provide even non-monetary benefits, such as the use of university buildings and spaces. If you are allowed to use those benefits, it’s likely that they will give preferential treatment to recognized student groups.
My experience with funding student groups is that each expenditure of funds is allocated for a specific purpose, which must be articulated in the request for funding.
As for your examples (democracy and/or having only student leaders), I see those as problematic as well. Say, for example, there exist two groups. One is the “Students for Democracy” which is a pure democracy. There are no officers, all members are voting members, and all decisions are made by democratic vote. Another group is founded called “Students for Republicanism,” which denies voting membership until one’s second year of membership, and elects officers that control the organization. If both wish to lobby the government for political activism and apply for funding (say for travel to a convention, or to march in the streets of the capitol during a given week), the result of your rule would subsidize one viewpoint and deny funding to another. The consequence is a rule in which the government, through what appears to be a viewpoint-neutral rule, effectively supports one viewpoint at the expense of another. I fail to see why we should allow government officials to indirectly censor one viewpoint merely because, in their value system, a “democratic” club is better than one that has “representatives.” The interesting part is that the latter club is much more like our current government than the former. If we really thought the former was more fair, wouldn’t you think we’d institute a pure democracy? And, regardless, what is inherently valuable about “democracy” that the school may use its policies to encourage it?
Fortunately, at my school, the student fee for student organizations are refundable.
The biggest problem with your idea, as I see it, is that it isn’t restricted merely to monetary resources. Even if the school can be required to recognize a student organization, if it claims it is “subsidizing” a discriminatory viewpoint by allowing them to use a classroom for an hour in order to have a meeting, or an auditorium to have a speech, even non-monetary university resources can be denied to a “recognized” student organization under your rules. Furthermore, it’d seem that radical Muslim scholars and/or Jewish scholars with strong viewpoints on Israel would be a prime target for this form of censorship, regardless of what student organization wished to bring them to campus.
At the end of the day, I see no useful purpose for compelling a student organization to allow any particular members at all. The goal of any expressive association is to find as many like minded persons as possible, band together, and do something valuable. I fail to see how allowing the student organization to determine who is “like minded,” and grow as large as is possible to accomplish their viewpoint, but no larger, is a problem.
These antidiscrimination rules aren’t really about protecting the feelings of students anyway. They are part of a broader political agenda of political correctness that seeks to destroy all forms of discrimination, even if they are legitimate.
December 8, 2009, 8:08 pmRandy says:
Tim: “My experience with funding student groups is that each expenditure of funds is allocated for a specific purpose, which must be articulated in the request for funding.”
Exactly. Which is why a student group cannot use the money to donate to an outside organization.
“One is the “Students for Democracy” which is a pure democracy. There are no officers, all members are voting members, and all decisions are made by democratic vote. Another group is founded called “Students for Republicanism,” which denies voting membership until one’s second year of membership, and elects officers that control the organization. If both wish to lobby the government for political activism and apply for funding (say for travel to a convention, or to march in the streets of the capitol during a given week), the result of your rule would subsidize one viewpoint and deny funding to another.”
Why exactly would one group be funded and the other isnt’? Under MY rule, both would be eligible for funding. Again, what’s the problem with that?
“At the end of the day, I see no useful purpose for compelling a student organization to allow any particular members at all.”
No, no one should be compelled to accept any particular members. But that’s not what we are saying — we are saying that no group should be able to refuse membership to any student. That’s slightly different.
Because my tax dollars are being used to discriminate against a group of people that I don’t believe should be discriminated against.
“These antidiscrimination rules aren’t really about protecting the feelings of students anyway. They are part of a broader political agenda of political correctness that seeks to destroy all forms of discrimination, even if they are legitimate.”
ON this we probably agree. The broader political agenda of organizations such as the CLS is to make discriminate against homosexuals normal. The have a right to do so, of course, but they don’t have a right to use my money or mandatory student fee monies to promote their agenda.
December 8, 2009, 8:45 pmAnatid says:
Not if you look at the practical applications. For a club of say, fifty members, with two dozen issues to vote on each semester, direct democracy is feasible. Each person can vote, each person can voice his opinion to others, each person can acquaint himself with the facts of each issue before voting.
For a nation of three hundred million people, with hundreds of elected positions and issues up for the vote each year, a representative government is more feasible, and arguably, more “fair.”
December 8, 2009, 8:46 pmTim says:
“Randy says:
Tim: “My experience with funding student groups is that each expenditure of funds is allocated for a specific purpose, which must be articulated in the request for funding.”
Exactly. Which is why a student group cannot use the money to donate to an outside organization.”
That’s actually untrue. My organization has never received ANY money from the student organizations’ resource fund, but it does have money. A hostile takeover of my organization (which is entirely possible and permissible based on the rules at this university) would result in the entire contents of my organization’s money being in the control of the new officers. And nothing would be different if those were SORF funds in our account. SORF funds are granted for a specific purpose (mileage is given at a specific rate, not receipt-based reimbursement), but unexpended SORF funds need not be returned to the SORF. We could presumably retain them in our general funds after the fact, and subsequent officers could use them as they wish. Because I am banned from deciding who can become a voting member of my organization, as is the current membership, the only recourse I’d have would be to expend the funds or use my power as an officer to appropriate them to wherever I thought they should go before my term expired. After that, any remaining funds would be in the control of the “hostile” takeover crew.
And, contrary to your last point, even at schools that have mandatory student fees, organizations that disagree with you do have a right and an ability to use your money to promote causes with which you do not agree. This is precisely what Board of Regents of the University of Wisconsin System v. Southworth sought to answer. So your last point is actually incorrect as a matter of law and has been answered (fairly) recently. Even when mandatory student fees are assessed, and you don’t agree with what they’re being used for, you don’t have any basis to demand a refund or refuse to pay the fee.
December 8, 2009, 9:59 pmRandy says:
Tim: ” We could presumably retain them in our general funds after the fact, and subsequent officers could use them as they wish.”
Well, that’s a problem that can and should be resolved. No funds allocated to a student organization should be donated or otherwise transferred to any outside organization.
“And, contrary to your last point, even at schools that have mandatory student fees, organizations that disagree with you do have a right and an ability to use your money to promote causes with which you do not agree.”
Of course. I may violently hate chess, but my mandatory student fees may nonetheless go to funding the chess club, against my wishes. But that’s a different issue. The issue I’m talking about is discrimination in accepting members, something wholly different.
December 9, 2009, 1:16 amTim says:
Really? Then how would we pay speakers to come to campus? This is not a solution and merely sidesteps the greater issue.
December 9, 2009, 2:08 amPES says:
There seems to be a strong, obvious tension between, on the one hand, a ruling that the Free Speech Clause mandates either (a) state support of no group – let’s face it, if the university did not recognize any student groups, this one would have no claim – or (b) state support of this religious group, and the Establishment Clause on the other. Option (b) is rather like saying that the government must support this religious group with its discriminatory policies intact, because otherwise the religious group would not be able to continue functioning. That seems to implicate the Establishment Clause to me.
December 9, 2009, 3:14 amzuch says:
Prof. Volokh:
But that just gets into having the courts examine what is “relevant to the group’s mission”. In a similar vein to the “entanglement” Lemon prong, the gummint would have to decide what the “mission” of an “expressive association” group was.
You could have fooled me about the BSA, ferinstance. I would have thought it was teaching kids to be good citizens and upright people, but apparently, deep down, the mission of the Boys Scouts — founded by Lord Baden-Powell, who is of interesting character — was to discriminate against gays (and atheists and whoever else they’ve felt like discriminating against). In fact, in BSA v. Dale, the Supreme Court had to delve deeply into arcane BSA documents and history to discover this essential tenet.
But if you let the organisations tell you what is “relevant to the group’s mission” and what is not, why bother even having such a restriction on discrimination (or exemption for such)?
But when one organisation acquires such political/cultural clout that it is allowed premiere access to facilities, support, etc. (think BSA, with their subsidized camping arrangements, public support, and so on), we get into problem areas again. I think that state governments can do much to discourage discrimination by withholding such access to public property by organisations with discriminatory membership (and some have tried this), but when the organisation is quite popular (like the BSA, at least in some states), even such gentle gummint pressure can’t be counted on.
Cheers,
December 9, 2009, 9:25 amBleh says:
From my recollection, you only need to fill in that information if you want the school to assist you in finding a scholarship. Since you were filling out that information, I’ll assume that you were indeed interested in finding a scholarship for your son.
So you’d prefer that the school only help you get scholarships that everyone is qualified for, even if that meant they wouldn’t help you find one that only your son qualified for? Or you’d prefer that the school only help your son, and only your son in finding a scholarship? Or would you prefer to just do all the leg work yourself, rather than getting help from an organization that probably already has administrative staff in place to do that kind of work?
Like you said, the scholarships are private, so why should the school not attempt to find any kind of funding available to help a student pay their way through school?
December 9, 2009, 12:46 pmSuzy says:
The issue that strikes me as most important is why these student organizations exist within the framework of the public university at all. Presumably they are funded in order to further the educational mission of the university. So any decision the university makes about how to administer and fund such student groups should be no different than decisions it makes about other aspects of its educational mission.
If it chooses to fund only student-led groups, or only groups that function according to a pre-approved governance document, it can do that. It can fund groups that are limited only to those with a 3.8 GPA or above, or those who are majors in Psychology, or those who can sing fairly well. It can choose not to fund groups that discriminate on the basis of sexual orientation. It cannot, however, fund groups that discriminate in ways that the university itself would not be allowed to do: e.g. excluding people based on race or religion. I don’t see why the university cannot be granted this discretion in administering its funds, in the same way it would decide what courses or business partnerships or study abroad programs were worthy of subsidizing.
Can the public university itself choose to exclude a student based on sexual orientation? Can the public university itself choose that it will refuse to discriminate on the basis of sexual orientation?
December 10, 2009, 2:18 amAdam says:
Not a lawyer here, but it seems to me that associating in itself is conduct. I thus don’t buy the arguments that look for a way to restate fundamental elements of association as kinds of conduct that can be regulated in such a way as to set up a bar that groups like CLS cannot reach. To say even that ‘all groups must be open to all students’ or that ‘all groups must sign a nondiscrimination statement’ is to say that the fundamental nature of association around shared beliefs is a kind of conduct that is not protected and may be regulated to the degree that such groups cannot be treated equally with other groups (not be recognized or have the same access to university resources, nor even have the same access to the student activity fee money which, I thought, ‘belongs to the students’).
So, I distinguish a group that discriminates in membership on the basis of the core beliefs of the group from the other examples in the prompt (student-run-only or democratic-run-only) insofar as belief-based membership requirements are exactly the kind of ‘conduct’ involved in the very definition of association, or at least the part of association we’re discussing here.
I agree that the university has an interest in ensuring that its student groups are not controlled by outsiders who in turn use the student group as a means of accessing university resources. But for how many groups is there a genuine, belief-based reason [or however one exactly defines such exemptions in other contexts] for having outside leaders? There may well be reason to acknowledge that the Catholic student group, for instance, accepts fundamental leadership directions on spiritual and organizational matters from outside persons such as priests, and why not permit a religious exemption [only] for groups that do so based on the group’s beliefs, and only insofar as the outside-leaders exemption does not substantially interfere with the university’s interest described above?
Likewise, if a group has a genuine, belief-based reason for not being democratically run, the group should get its exemption as well. There are a bunch of good reasons for not having democratic elections of leaders in some groups (for instance, when the leaders need a certain high degree of merit in something like conducting a musical group), but if a school really wants to have a democratic-run-only rule, the only exemptions would be for groups where obeying the rule would violate its (core) beliefs. I suppose the (quite rare) exemption would be for a political group that really admires and associates around some kind of anti-democratic or undemocratic political ideology. Failing to let such a group exist and have its own leadership structure would seem to be indeed a viewpoint-discriminatory result. (As for the group with a popular but poor conductor, that’s sad, but hopefully the group would figure out how to resolve the matter fairly quickly.) Wouldn’t the university’s rule here be, as a matter of policy the university just doesn’t want to recognize or subsidize political views with which it disagrees? To restate this group’s existence as “conduct” and to point to the rule as though it is viewpoint-neutral does not persuade me.
Also see above, ox (Dec. 8), and Mead on the democratic-only rule (Dec. 8).
December 11, 2009, 10:19 amAndrew says:
I think that Hastings is unevenly distributing benefits based on viewpoint, not conduct or subject matter. If the subject matter was the offending issue, I don’t see how OUTLAW (pro-homosexual student organization) would be any more appropriate. (In the petitioners brief, it is alleged that OUTLAW may remove officers if they fail to support the organizations pro-homosexual goals and objectives.) If it was conduct that Hastings found offensive, I feel like any group that determined it’s membership based on ideology would be problematic.
The difference between this action and the requirements that all school organization be democratic, or open to all members regardless of ideology, is that the restrictions would effect all groups equally. A communist organization could still be run completely by communists, and express a pure communist message, even if it had to govern itself by democratic principles. In the case of free and open membership for all students, OUTLAW would be just as subject to being overrun by Christian fundamentalists as CLS here is subject to being overrun by members with a pro-homosexual agenda. I don’t this is true since OUTLAW (and other groups) presumably has the power to remove those who act inconsistently with their ideology as long as it doesn’t offend the non-discrimination policy.
In the present case, CLS is prohibited from excluding homosexuals (among other types of people) from its leadership positions, and therefore risks having its message compromised. These were the same concerns underlying Hurley & Dale. While I understand that government subsidy was not an issue in that case, those cases stand for the supposition that conduct can be speech, or at least significantly affect it. In my opinion, any viewpoint based restriction on speech is unconstitutional under Rosenburger.
December 14, 2009, 7:03 pm