Archive | Freedom of Speech at Colleges and Universities

The “Purpose of the Program” Argument and Christian Legal Society v. Martinez

One more item about the Christian Legal Society v. Martinez case: Some people argue that applying nondiscrimination conditions to student religious groups (alongside other groups) as a condition of funding violates the underlying purpose of the benefit program. Universities say they fund and provide space for student groups to “facilitat[e] the free and open exchange of ideas by, and among, its students” (I quote here Board of Regents v. Southworth). Given that the effect of the nondiscrimination condition is to limit religious groups’ ability to freely promote the ideas (by raising the risk that the groups won’t be able to limit their officers or voting members to those who share the group’s core ideas), isn’t the condition inconsistent with the purpose of the program (and the argument goes, therefore unconstitutional)?

The answer, I think, is that when the government is subsidizing behavior, it is entitled to try to serve multiple interests. For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocates by private organizations. Yet the government is entitled to serve both that interest and the interest in not requiring taxpayers to subsidize electioneering and lobbying (or at least a substantial amount of lobbying), which is why the government may extend the tax exemption only to donations to groups that don’t electioneer or engage in substantial amounts of lobbying.

Nor is there any need for a very strong, overriding reason for the exclusion, I think; the government is entitled to choose what it subsidizes and what it doesn’t. Likewise, the government can choose to partly subsidize many medical procedures (including ones that are necessary simply for comfort, […]

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Why No-Discrimination-Based-on-Religion Conditions for Government Benefits Aren’t Viewpoint-Discriminatory

David and others have argued that university policies that deny benefits to groups that discriminate based on religion are unconstitutionally based on the groups’ viewpoint, when applied to religious groups. Other groups, the argument goes, are allowed to exclude people who don’t share the group’s ideology: The environmentalist group may exclude anti-environmentalists, and the gun rights group may exclude people who support gun bans. But the Christian group can’t exclude non-Christians, and that’s discriminatory against groups that espouse Christian viewpoints.

But I don’t think that constitutes viewpoint discrimination, or even content discrimination. The no-religious-discrimination condition may have a disparate impact on religious groups – it may burden them much more than it burdens nonreligious groups – but disparate impact is not enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint.

As I argued in my law review article on the freedom of expressive association and government subsidies, the test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.

I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ […]

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No Duty To Subsidize Student Groups’ Discriminatory Officer and Member Selection Decisions

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 […]

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Ideological Groups Being Taken Over by Those Hostile to the Underlying Ideology

A commenter (Tim) on an earlier thread raised an important objection to rules that bar religious discrimination by campus groups (including religious groups):

Imagine that anyone, regardless of religious belief, were allowed to become voting members of the “Christian Legal Society” or the “Muslim Students’ Association” or any other such group. What would stop people who disagreed with the group’s views from joining the group in large numbers, voting out the leadership, and then disbanding the group merely to silence them? Obviously, the students would have no meaningful right to free speech and association if this regime were allowed to stand.

Another commenter, EMB, responded:

I’ve seen this hypothetical argument made several times, but every time I wonder: are there any examples in the real world of this actually happening?

I can’t say how often these things happen, nor am I sure that anyone else can say it, either. But I do know of one case that involved that very fact pattern (though not at a university), and that was litigated all the way to the California Court of Appeal. The case is Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993), in which Scientologists were apparently trying to take over the Cult Awareness Network, which was hostile to Scientology. When they were refused admission, one sued, claiming the denial violated California antidiscrimination law; the court held that antidiscrimination law couldn’t apply here, and based its reasoning partly on CAN’s First Amendment rights to expressive association.

I think the California Court of Appeal reached the right constitutional result as to general bans on discrimination. I also think that, partly for this reason and partly for others, public universities should — as a matter of policy — allow ideological student groups to discriminate based on members’ […]

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Supreme Court Agrees to Hear Expressive Association / Government Benefits Case

The case is Christian Legal Society v. Martinez, and it could be an important decision on First Amendment law and government benefits more broadly. Its implications would quite likely also extend beyond on-campus student groups and also apply to tax exemptions and various other such schemes. I’ve written about the question in my Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006), and also in this post; I’m on the run now, but I hope to blog more about the subject this week. […]

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Purdue Resists Calls for Firing Professor for Anti-Homosexuality Blog Post

From the Indianapolis Star, discussing this blog post (my backup version is here):

Some have called for [Purdue University professor] Bert Chapman to resign or be fired for his Oct. 27 posting, which laid out an argument that the cost for AIDS research and treatment should factor into the national debate over the acceptance of gays and lesbians.

“The most concrete way to protect the university’s reputation against academic dishonesty and mediocrity is for him to resign,” said Purdue senior Kevin Casimer, who is organizing a petition campaign against the professor.

“However, if Purdue administrators and faculty make a unified statement that (Chapman’s writings) are unprofessional and detrimental to Purdue’s reputation and not reflective of the university, the same effect might be made.”

Purdue officials say they have no plans to discipline Chapman, a library science professor who serves as the university’s government information and political science librarian.

“There are many things on the Internet that would be offensive to a lot of people but protected by the First Amendment,” said Purdue spokeswoman Jeanne Norberg. “The best response is to speak up, which is exactly what our students and some faculty are doing.” …

Note that Purdue is a public university, so that it indeed likely constitutionally barred from firing or otherwise disciplining Prof. Chapman for his speech. Private universities (even ones that get substantial government funding) are not bound by the First Amendment, but only by professional academic freedom principles and by contractual obligations under its tenure contracts (and other employment contracts). For more on this story, see this Inside Higher Ed column by Scott Jaschik. […]

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Publishing a Misogynistic Student Newspaper Column = Sexual Harassment?

From the Connecticut Post, apparently discussing this column (my backup version is here):

… The Fairfield Mirror …[, an] independent student publication[,] faces harassment charges before the school’s Student Conduct Board….

The controversy erupted over a satirical column in the Sept. 30 edition of The Mirror that poked fun at female students who agree to one-night stands. The “He Said” column described a female’s “walk of shame” leaving a male’s dorm, and used words like “pounding” and “hood rat” to talk guys through the morning after consensual sex….

The student editors [of the newspaper agreed, in response to complaints and a threat of being deprived of school funding,] to make changes to ensure editorial content in the paper has no divisive, offensive language that could result in emotional or physical harm to anyone….

If anyone can point me to a copy of the new Fairfield newspaper policy, I’d love to see it; if it is as quoted, this sounds like an appallingly broad policy for a newspaper to agree to, or for any university to demand. The one reference I could see to “divisive, offensive” in the Mirror archives, here, is an assurance only as to the “Coffee Break” section — still troubling, but more limited in scope. On the other hand, it said nothing about “emotional or physical harm,” so perhaps some other policy is out there.

Note that Fairfield University is a private Jesuit university, and therefore not bound by the First Amendment. Nonetheless, it is apparently trying to apply general “sexual harassment” principles, presumably on the theory that the newspaper column created a “hostile, abusive, or offensive educational environment” for the complainants and for reasonable readers based on the readers’ sex. And this could equally be applied under many university speech codes, including public […]

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Rare Case Involving Restrictions on In-Class Speech at a University

Most of the university student speech debate has focused (rightly, in my view) on restrictions that apply to student speech outside class — in student conversations, demonstrations, newspapers, flyers, and so on. But Harrell v. Southern Oregon University (Oct. 30) involves in-class speech, albeit in an online classroom. (Here’s the magistrate judge’s decision, which the decision I cited above adopts.)

The Southern Oregon University Code of Student Conduct prohibits

Disruption, obstruction or interference with educational activities in classrooms, lecture halls, campus library … or any other place where education and teaching activities take place including, but not limited to, talking at inappropriate times, drawing unwarranted attention to self, engaging in loud or distracting behaviors, displaying defiance or disrespect of others, or threatening any University student or employee.

Peter Harrell was taking some online classes, in which the class discussion took place through an online discussion board. He was at first apparently admonished by his instructor for disrespectful statements, and then eventually disciplined by the university (by being put on probation) for such statements.

The opinions aren’t rich in details about the statements, and the Complaint highlights some of the statements in a way that leaves them unreadable. But the statements appeared to be statements to classmates such as “clearly you haven’t bothered to read the rest of the board on this topic” and “but you clearly haven’t bothered to do your reading. Feel free to post some concrete information on your own, however.” Those are probably not seen as especially rude by the standards of online discussion generally, but are in my view quite rude but not extremely rude by the standards of in-class discussion. (I would, for instance, promptly admonish a student for making such statements in my classroom.)

So Harrell sued, claiming that the Code provision was […]

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They Judged the Cartoons, but Did Not Read the Book

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World.  As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence.  What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.”It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based […]

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“Pittsburgh-Area College Allows Student to Advocate for Concealed Carry on Campus, Abandons Repressive Policy”:

So reports the Foundation for Individual Rights in Education, discussing the case we blogged about in May. Here are some excerpts from FIRE’s summary; there are more details, and pointers to the relevant documents, here:

[A] student threatened with punishment for attempting to form a gun-rights group at Community College of Allegheny County (CCAC) is finally allowed to distribute pamphlets about the group on campus. The college has also rescinded its unconstitutional policy demanding “prior written approval” for “personal contact with individuals or groups related to non-sponsored college material or events.” … Christine Brashier, who wanted to form a chapter of Students for Concealed Carry on Campus (SCCC), was told that her pamphlets were unacceptable “solicitation” and that any further efforts would be considered “academic misconduct” ….

After FIRE took Brashier’s case public in May, generating national news coverage, CCAC attorney Mike Adams finally replied to FIRE. Adams assured FIRE that Brashier did not face any disciplinary action and that she did have the right to try to form a SCCC group, but he reported that CCAC would not budge from its unconstitutional policy of prior review of materials….

But, FIRE reports, the policy has finally been changed; “Michael J. Rinaldi, a FIRE Legal Network attorney in the Commercial Litigation Practice Group at Drinker Biddle & Reath LLP in Philadelphia, … successfully pressed CCAC to allow not only Brashier but all CCAC students to exercise their fundamental rights on campus.” Good work.

Disclosure: I will be a keynote speaker at FIRE’s Tenth Anniversary event this month, but my enthusiasm for FIRE’s work of course long preceded that invitation. […]

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