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.
jrose says:
Did French address Eugene’s hypotheticals:
how you’d deal with a university’s decision to fund only groups that are run by students, or that operate democratically
Does French’s view require that these restrictions be held unconstitutional?
December 15, 2009, 7:42 amTuesday round-up | SCOTUSblog says:
[...] of the Alliance Defense Fund continue their debate on Christian Legal Society v. Martinez at the Volokh Conspiracy. The Election Law Blog reports on the election law-related anecdotes that Joan Biskupic notes in [...]
December 15, 2009, 9:38 amEric Rasmusen says:
I’d still like you to address the *legal policy* question: Should state universities be allowed to refuse funding to (a) religious groups, or (b) groups that require their leaders to be Christian?
That’s different from two questions that you have indeed answered:
(c) Does current constitutional law, properly extrapolated, allow state universities to refuse funding to groups that require their leaders to be Christian? (You says YES)
(d) Would it be a good policy for a state university to refuse funding to groups that require their leaders to be Christian? (You say NO)
December 15, 2009, 10:35 amTim says:
I have met David French. He’s an amazing guy, very funny and charismatic. With that said, after listening to him speak, I didn’t find too many things that I agreed with him on. That’s why I find it so shocking (and perhaps different) that for once, David French is arguing against the permissibility of government control of something, and Eugene Volokh, free speech diehard and small-l libertarian is on the goverment’s side. I would have never thought I’d be on David French’s side while Eugene Volokh took the other side. I guess there’s a first time for everything.
December 15, 2009, 12:12 pmPubliusFL says:
French wrote:
December 15, 2009, 1:08 pmJeff says:
What happens if the ROTC does not allow openly gay students to join or lead there organization. Follow the DOD policy (legal) of don’t ask, don’t tell or violate the university’s anti-discrimination law? What if the University provides a student group recognition but no money…
December 15, 2009, 1:16 pmEugene Volokh says:
Eric Rasmusen: I think the Constitution, properly interpreted, generally should not allow the government to discriminate against religious speakers or institutions based on their religiosity, or on their religious denomination. (I therefore think that Locke v. Davey was mistaken.) But I think the Constitution, properly interpreted, should allow the government to impose nondiscrimination rules as conditions on group access to funding, or to university classrooms — even when that ends up disproportionately burdening religious groups. I generally think the Court’s caselaw in this area is correct, for much the reasons that the Court gives; and, as I’ve argued, I think that caselaw leads to the result mentioned in the preceding sentence.
December 15, 2009, 1:48 pmreadery says:
Prior to the 13th Amendment, could government (at the time, only the Federal government) impose the seminal non-discrimination policy of this country — non-discrimination on the basis of slave-holding status — on an abolitionist group? After all, the Supreme Court had held that the type of property one owned was no-one else’s business but ones own, so far as the federal government was concerned, and the principle that people shouldn’t be discriminated against simply because others had primitive emotional reactions to their private property choices was well established. John Calhoun argued that abolitionism was religion-based and religious values and concepts of morality had no business intruding on a secular society.
ISlavery is a useful hypothetical here because it’s important to ask if one is willing to let government refuse recognition to groups that “discriminate” based on any criteria, or merely based on criteria one personally agrees with.
C
December 15, 2009, 7:34 pmShould Access to Public University Property and Funding Be Treated Differently from Access to Other Public Property and Funding? | Liberal Whoppers says:
[...] the rest here: Should Access to Public University Property and Funding Be Treated Differently from Access to Other … Share this [...]
December 17, 2009, 12:06 amJosh Chandler says:
Why is it that these membership and leadership qualifications, in context, are not simply part (and indeed, a crucial part) of the expressive content of the group’s message? If they were deemed such, this would be an easy case of viewpoint-discrimination, no? How can you have a group organized to spread a certain message without restricting membership to those who believe in (and in the case of homosexual students, practice) the message?
Is the distinction that the message is discriminatory? If so, who cares– it’s still viewpoint discrimination and verboten. Moreover, as a matter of protecting religious liberties, it is a very bad signal to send that religious viewpoints may be silenced because they are allegedly discriminatory, particularly where these restrictions are aimed at fundamental religious tenets regarding moral behavior and the value and efficacy of a belief in Christ.
Of course, the “membership-requirements-as-speech” argument would easily distinguish the voting and organizational membership qualification hypotheticals in all but a few cases (I suppose, for example, that some kind of group in favor of dictatorship would have a similar interest in not having democratic elections, but at that point 1) we’re pretty far out there away from reality, and 2) they should win that case for the same reason petitioners here should win).
I want to know why, once you concede that these requirements are part of the groups expressive message, this case isn’t immediately disposed of by Rosenberger and many other similar cases.
PS- When I term it a “concession” that the requirements are part of the expressive content, I don’t need it to be conceded. Under Dale and Hurley I think it has already been very clearly and firmly decided. What am I missing?
December 18, 2009, 12:55 pmJosh Chandler says:
A quick follow-up to my prior comment. Reading over the initial post, it seems that Eugene argues that the difference here between this and Dale or Hurleyis that this is government-funded speech case, ala Rust. But Rust was not a limited public forum case.
Thus, at best, Eugene has distinguished Hurley and Dale, but he has not distinguished Rosenberger or explained why the logic of Rosenberger does not or should not embrace viewpoint discirmination that is aimed at “expressive association” rather than speech per se. Hurley and Dale stand for the proposition that one cannot apply anti-discrimination norms to groups whose expressive associational rights are harmed by enforcement of those norms. There is no principled reason why these cases should not be read in conjunction with Rosenberger to forbid viewpoint discrimination aimed at expressional association, and more to the point, Volokh provides none. Not one.
The bit about Smith in the original post strikes me as not only wrong, but suggests either confusion on Volokh’s part or a deliberate bait and switch. We are not and have not been talking about religious exercise here. We are talking about expressive association. Smith is entirely inapposite. The question here is whether existing limited-public forum cases can or should be applied to expressive association as well as expression per se.
December 18, 2009, 1:21 pmWilhelmina Ilagan says:
Great post, I concur completely and appreciate the time you took to write it. Cheers!
August 26, 2010, 5:27 pm