A school or university bans discrimination (based on race, religion, sex, and the like) by all student groups that want access to school property and school funds. The ban applies even when it seems contrary to the group’s ideological mission — for instance, when a Christian student group is told that it can’t limit membership to Christians (or a Muslim one to Muslims or an atheist one to atheists).
Do such bans violate the school or university student groups’ rights of expressive association, see Boy Scouts v. Dale, or high school student groups’ rights under the federal Equal Access Act? Or are they permissible school decisions about whom to give government benefits (such as access to classrooms or funds)?
Last Friday, the Ninth Circuit held, in Truth v. Kent School Dist., that such policies are indeed constitutional, and don’t violate the Equal Access Act. The court remanded for findings on whether the policies were discriminatorily applied to this group because of its religiosity, given that the Men’s Honor Club and the Girl’s Honor Club were recognized even though their membership criteria violated the policy — but that’s an implementation detail that I won’t focus on further.
The court’s constitutional reasoning seems oddly cursory to me: The court notes that Truth raised an expressive association claim, but it doesn’t discuss that claim, or Boy Scouts v. Dale, the case on which Truth understandably relies in its briefs.
At the same time, as I’ve argued in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), the bottom line seems right — the government need not subsidize the student groups’ right of expressive association, just as it need not subsidize abortion rights, private schooling rights, the right to lobby the government, and the like. Here’s a table that illustrates this:
| Right to abortion | A state 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 | A state 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 | A state 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 | A state may not ban private education, | but it need not pay for private education, | even if it pays billions for public education. |
Likewise, a state may not ban discriminatory expressive associations, but it need not give them free access to school resources, even if it gives such resources to groups that choose not to exercise their rights to discriminate in members selection.
It’s true that the government may not engage in (certain kinds of) viewpoint-based subsidies, see Rosenberger v. Rector. But — as I argue in more detail in my Stanford piece — this doesn’t stop the government from declining to subsidize speech in content-neutral ways, or even in content-based but viewpoint-neutral ways. And a subsidy that’s open only to groups that don’t discriminate based on race, religion, sex, and the like in their membership decisions is a permissible viewpoint-neutral subsidy. True, the nondiscrimination rule reflects the enactors’ viewpoint, but all laws, including content-neutral ones, do that. It also has a disparate impact on groups with a certain viewpoint, but again most speech restrictions, including content-neutrals, do that, too. The constitutionally significant point is that it is not triggered by the viewpoints expressed by the groups’ speech, but rather by the groups’ conduct.
I should say, by the way, that I think these nondiscrimination policies are not a very good idea, and not conducive to genuine diversity of viewpoints and ideas (which is often valuable even in high schools), especially when they apply to religion. After all, most ideological groups are free to open their membership only to people who agree with their ideology (the court gives as examples EarthCorps and the Gay-Straight Alliance), and that makes perfect sense: You want student groups to be effective voices for the ideologies they were organized to espouse, and you don’t want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability.
It’s true that religious groups’ exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.
Nonetheless, while I think exempting groups this way is good policy, I think it’s not a constitutionally mandated policy (and I’m inclined to say it’s not mandated by the Equal Access Act, either, though I haven’t spent as much time thinking about that). If you’re interested in more detail on this, check out the article I cite above.