Should Access to Public University Property and Funding Be Treated Differently from Access to Other Public Property and Funding?

David French of the Alliance Defense Fund responds further to my posts about Christian Legal Society v. Martinez. I much appreciate David’s thoughtful reactions on this, and I’d like to continue the conversation.

Here’s David’s argument slightly abridged:

By treating this case as a “government benefits” case, I think Eugene is missing a few vital things. First, let’s not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is “peculiarly a marketplace of ideas” that if closed will cause our culture to “stagnate and die.” In fact, it’s hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups’ access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).

The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion “gag-rule”) is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)

With language that sweeping and decisions that consistent, I would say that it’s an open question as to whether the access to facilities by expressive associations could even be considered a “government benefit” as opposed to a “right” in the conventional sense.

Second, I think Eugene dramatically minimizes the impact of Healy. Here we have the one Supreme Court case analyzing student organization recognition, and the access to facilities and other university resources in question was not seen as a denial of benefits but an abridgment of the associational right itself. Let’s go back to the quote that Eugene and I keep throwing at each other:

There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper.

Of course, the Healy Court did not deal with nondiscrimination policies. Had they decided the case on that basis, there’d be no need for the Court to weigh in on Martinez. However, I think Eugene does glide a bit over the university’s grounds for excluding SDS from campus. Yes, the university denied them because of the group “openly repudiates the college’s dedication to academic freedom.” But how? [Discussion of how SDS chapters at other campuses had been responsible for violent disruptions, and how the local SDS chapter didn’t agree to eschew violence, omitted. -EV] What’s the justification for denying free association in this case? Is it anything as compelling as preventing violence and campus shutdowns?

And this brings me to my third major point. The justification is not “protecting students from discrimination on the basis of race, gender, sexual orientation, religion, veteran status, disability, etc. etc. etc.,” because CLS has not mounted a facial challenge to the nondiscrimination policy. The challenge is quite simply to the application of the policy in such a way that it prevents a Christian group from reserving voting membership to those who believe in its statement of faith and seek to conform their behavior to the mandates of Biblical Christianity. Broadly, it’s a challenge to a policy that would prevent any organization from reserving leadership or voting membership to those who believe in the mission of the organization and conduct themselves accordingly.

What conceivable state interest exists in requiring open membership by expressive organizations? At its core, this case is nothing more and nothing less about the state using its nondiscrimination policy (a policy that was in part designed to protect religious expression) to exclude an organization it does not like. I hate to sound like a broken record, but I have to go back once again to Healy: A government actor cannot compel indirectly a result that it is constitutionally prohibited from achieving directly. 408 U.S. at 183.

Here’s where I disagree with David on this:

1. There might well be special university-focused constitutional rules when it comes to universities disciplining or expelling their students for their speech, or disciplining or firing faculty members for their speech. But the Court’s cases that most squarely deal with student group access to university-provided funds and space — Widmar v. Vincent and Rosenberger v. Rector — are straightforward government-as-proprietor cases. They cite other cases where government voluntarily provides access to its property, and they are in turn cited by other such cases. They don’t suggest any special student group entitlement to funding, or to meeting space.

All the cases apply is the same rule that’s generally applied for access to a limited public forum: (A) The government may not discriminate based on the viewpoint of speech. (B) The government may only discriminate based on the content of speech to the extent that such restrictions make sure that the forum is limited to those speakers or those subject matters for which it was opened. As I’ve argued before, a nondiscrimination condition for groups that want to get funding or access doesn’t discriminate based on either the viewpoint of the speech or the content of the speech.

What’s more, it seems to me that it makes good sense to do what the Court has done, and to treat university funding and university space the same way that other government funding and space is treated. There might be special reason to limit universities’ power to fire faculty matters for their scholarship, or to expel students for their speech; such power, if it were as broad as the government’s normal power as employer or as K-12 educator, could dramatically undermine the free exchange of ideas in the academy. But much as I value some of the events that student groups put together, their speech is not nearly as central to the free exchange of ideas in universities as is the speech of students and of faculty members. If universities simply follow the same rules as are imposed on government property outside the university — which is that when the government creates a limited public forum, it generally may not discriminate based on viewpoint, and may only discriminate based on content when it comes to enforcing the limitations on the forum — speech on campuses would not, I think, be dramatically impoverished.

None of this is reason to suspend the normal First Amendment rules as to limited public forums on campus. But it does suggest that the Court has been right in not creating any specialized First Amendment rules for university-based limited public forums that differ from limited public forums on other forms of government property.

2. What about Healy? I’ve discussed before why I think Healy, read in light of Widmar and Rosenberger, is limited to viewpoint-based restrictions on speech. But since David elaborates further on this, let me as well.

The SDS in Healy was denied recognition for four reasons. The Court held that three of these reasons were unconstitutional:

(A) The college argued that the local SDS could be denied recognition because of past disruption by the national SDS. The Court disagreed, on the grounds that mere association with another group could be punished only when the government “establish[es] a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims.” It was the local students’ expression of ideological connection with the SDS (exemplified by the use of the name) that triggered the college President’s concerns; and the Court concluded that the expression of this ideological connection, as opposed to a specific intent to actually act violently, didn’t suffice for denial of recognition.

(B) The college President argued that the local chapter was likely to follow “the philosophy of [the national] organization,” which was a philosophy is one “of violence and disruption.” That, the Court said, was unconstitutional: “The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.”

(C) The college President argued that the local chapter had indeed shown signs of likely disruptiveness. And the Court made clear that “If [the fear of disruption], directed at the organization’s activities rather than its philosophy, were factually supported by the record, this Court’s prior decisions would provide a basis for considering the propriety of nonrecognition.” But the Court found at most “undifferentiated fear or apprehension of disturbance,” rather than any serious evidence of likely bad activities by this chapter. I take it this means that the Court concluded that the fear of disruption was in fact based on the group’s philosophy (i.e., viewpoint) and not its activities.

On the other hand, the Court held that the fourth reason might suffice to justify denying recognition to the group, and it remanded for further factfinding on whether there was indeed an existing college rule supporting this justification: (D) The college President argued that the chapter’s refusal to pledge to abide by content-neutral bans on disruption was itself grounds for denial of recognition. That might be so, the Court said: “Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related activities must be respected. A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students’ associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct.”

So, to answer David’s point, the university was indeed free to try to prevent violence and campus shutdowns by enforcing content-neutral rules, and by requiring that groups agree to adhere to such rules.

3. This brings us to David’s last point: “What conceivable state interest exists in requiring open membership by expressive organizations?” The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which … subsidizes … racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)

As I’ve mentioned before, I think this justification is unpersuasive here as a policy matter. I wouldn’t adopt such a categorical view myself if I ran a university. I think the diversity of viewpoints on campus is enhanced if groups are entitled to limit their membership to people whose beliefs (and even whose identities) are consistent with the group’s mission, and I think that students have no legitimate basis for complaint if some of their student fees go to groups that discriminate against them, if the overall program is open to groups of all sorts of beliefs and with all sorts of policies. But that goes to the wisdom of pursuing the interest identified in the (broadened) Kennedy quote — not to its rationality or legitimacy.