The Foundation for Individual Rights in Education points to a decision from last month that I hadn’t noticed before:
Last month, Judge Dora L. Irizarry issued a preliminary injunction requiring the College of Staten Island (CSI) to officially recognize Chi Iota Colony of Alpha Epsilon Pi (AEPi), a Jewish fraternity (Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 2006 U.S. Dist. LEXIS 56257 (E.D.N.Y. 2006)). Prior to the injunction, CSI’s Office of Student Life had refused to recognize AEPi, insisting that doing so would “contravene[] the College’s non-discrimination policy” because of AEPi’s constitution, which requires the group’s membership to be male.
But citing the fraternity’s status as “an organization that promotes congeniality and a supportive social structure for male students,” Judge Irizarry found that CSI’s refusal had likely violated the fraternity’s First Amendment right to freedom of intimate association.
Indeed, Judge Irizarry’s focus on fraternity membership as a protected form of “intimate association” is what’s most interesting about this ruling, because classifying fraternities and sororities as types of intimate association affords Greek organizations at public schools a new constitutional protection against hostile administrators.
The Supreme Court has indeed recognized a right of intimate association, which protects people’s choices of whom to let into their (relatively) small and selective groups. I’m generally free to decide whom to invite to dinner, or whom to choose as a roommate, even if I discriminate based on race, sex, religion, sexual orientation, or what have you, and even if some law purports to regulate my decision. This right doesn’t extend to broad, not very selective groups like the Jaycees, but it does extend to some smaller and more selective clubs.
But here New York wasn’t trying to ban single-sex groups — the City University of New York (College of Staten Island) simply has a policy of recognizing only groups that don’t discriminate based on (among other things) sex, and thus denies them access to university facilities, services, bulletin boards, centralized mailbox, funding, and some other benefits. The University is thus just choosing not to fund certain exercises of a constitutional right to intimate association. (An unusual choice, since to my knowledge most Universities offer such benefits to single-sex fraternities and sororities — as they are clearly constitutionally free to do — but unusual choices aren’t unconstitutional just because they’re unusual.)
And generally speaking, the government is perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that’s in some ways an alternative to that exercise of a constitutional right). Consider some examples (“need not” below means “has no federal constitutional obligation to”):
| Right to abortion | New York may not ban abortions, | but it need not pay for them with state funds, or allow them to be performed at state-run hospitals | even if it chooses to pay for childbirth. |
| Right to free speech | New York may not ban advocacy of a candidate or a legislative proposal, | but it need not subsidize it through the charitable tax exemption | even if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption. |
| Right not to marry | New York may not require people to marry, | but it need not give unmarried couples or platonic roommates special dorm housing, | even if it subsidizes married couples by offering such housing. |
| Right to privately educate one’s children | New York may not ban private education, | but it need not pay for private education, | even if it pays billions for public education. |
For more on these examples, see my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), which discusses all this in the context of the right to expressive association rather than intimate association.
Now there are some exceptions to this No Duty To Subsidize Constitutional Rights principle. The government may not discriminate based on people’s religiosity; it in many situations may not discriminate based on the viewpoint of people’s speech; and under some jurisdictions’ statutes and constitutional provisions (it’s not clear whether New York would be one such jurisdiction), the government may not exclude people from at least some subsidies when that burdens their religious practice. But none of these exceptions are in play here: Though the fraternity is Jewish, it’s not claiming that excluding women is part of its religious practice, or that the government is targeting the fraternity because it’s Jewish (or more broadly because it’s religious). And while obviously both the fraternity’s and CUNY’s actions are founded on the fraternity’s and CUNY’s viewpoints about single-sex organizations — as all actions are founded on the actor’s viewpoint about the propriety of the action — CUNY’s action definitely does not treat groups differently based on the viewpoints that they express through their speech, which is what it takes to make CUNY’s action viewpoint-based. (Again, for more on this, see here.)
All we have here is a government choosing not to offer government benefits to support the exercise of a constitutional right — and whether that’s the right to abortion, to private education, to speak, not to marry, or to intimately association, the U.S. Constitution leaves the government free to do that. The government’s choice here may be faulted as taking antidiscrimination logic to extremes, as undermining a useful form of private association, or as being intolerant of genuine diversity. But it’s not unconstitutional.
UPDATE: A commenter suggests that the government may not limit access to government property to people exercising their constitutional rights, even if it may limit access to funds. But the Court has (in my view rightly) generally treated access to property the same as it treats access to other benefits. The government may choose not to pay money to subsidize abortions; but it may also choose not to let public hospitals be used for abortions, even if the doctor and patient offer to pay for access. The government may choose to let public schools but not private schools have access to certain government property (e.g., school classrooms after hours). A university may choose to open space in classrooms after hours to certain speakers (e.g., student groups) but not other speakers (e.g., nonstudent groups, no matter how constitutionally protected those nonstudent groups might be), or to certain subject matters but not other equally constitutionally protected subject matters.
The one exception is government “traditional public forum” property — parks, sidewalks, and streets — but that isn’t involved here.