Ponder this: According to the most current Supreme Court authority, a group of students can form a local chapter of a violent national organization, refuse to promise that they won’t disrupt the campus, and still have a right to be recognized by the university. At the same time, however, if the university has a certain, peculiar kind of policy on its books, it can refuse to recognize a small group of religious students who merely want to conduct Bible studies led by members of their own faith.
In 1972, the Supreme Court decided Healy v. James, a landmark case that granted a Connecticut chapter of Students for a Democratic Society the right to exist on a public campus in spite of the fact that SDS chapters nationwide had seized and vandalized buildings, destroyed scholarly research, started fires, and caused campus disruptions that had shut down all university instruction for extended periods. When university officials pointedly asked if the local SDS chapter would disrupt its own campus, they replied that their “action would have to be dependent upon each issue.”
Faced with possible violence, the university refused to recognize the SDS. The students sued, and the Supreme Court issued a ringing opinion upholding student rights on campus. Specifically, the Court found that students had a freedom of association interest in student group recognition:
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.
Fast-forward to 2010. This year the court heard yet another university student organization case, this one involving not a potentially violent group, but its opposite: a small group of students who wanted to host Bible studies on campus. The Christian Legal Society was denied recognition at Hastings College of Law in San Francisco. But CLS’s sin was very different from SDS’s: CLS simply wanted its voting members and leaders to share the group’s faith and live accordingly.
Common sense dictates that expressive organizations should be able to limit their voting members and leaders to those who share the group’s purpose. Common sense dictates that campuses open to the potentially violent should also be open to the devoutly religious. Common sense might so dictate, but common sense is uncommon on campus. Declaring the Christian Legal Society “discriminatory,” Hastings kicked them off campus.
CLS sued, and after a long and winding litigation road, the Supreme Court rendered a decision . . .against the Christian Legal Society (at least in part). In holding that was both narrow and troubling, the Court found that a policy that requires each student group to be open to every student on campus – an “all-comers policy” – was constitutional so long as it was equally applied to all student groups.
This holding is narrow: At the time of the oral argument, Hastings was the only school in the entire country with a similar all-comers policy. Moreover, the Court did not rule on the constitutionality of nondiscrimination policies that dominate campuses across the country. Thus, as a practical matter the ruling directly impacts the students at exactly one school in California, and the conflict between campus nondiscrimination policies and student freedom of association remains unresolved.
Yet the ruling was still troubling: To reach its conclusion, the Court had to ride roughshod over the fundamental free association rights of CLS students. Writing at CATO’s blog, Roger Pilon gets it exactly right:
And if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all? In a word, like the mugger who says “Your money or your life,” today’s opinion enables Hastings to say, “If you want benefits otherwise available to all, you’ve got to give up your right to freedom of association.” No public institution should be able to put people to such a choice.
Or, as Justice Alito noted in his dissent: “Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”
It’s odd that a Supreme Court, an institution that has long held that the marketplace of ideas is so important on campus that without providing students the freedom “to inquire, to study and to evaluate” our culture will “stagnate and die,” would believe that requiring private groups to be open to dissent would somehow protect that marketplace.
After all, a group that cannot control its membership cannot control its message. Distinct student organizations will exist at the whim of the majority. If “all comers” can join, then the majority can override the speech of any student group. Thus the true marketplace of ideas exists by the permission (or, more likely, apathy) of the majority. The potential for minority or disfavored groups at schools with an all-comers policy to self-censor to avoid controversy — and potential hostile takeovers — is high.
It is the sad consequence of our politically correct times that we are left with such incongruous jurisprudence. As the sun sets on this strange day, potentially violent student groups rest easy while peaceful religious organizations keep one eye on their administrators – wondering if they are one “all-comers” policy away from extinction.
In a land that loves liberty, the radicals and the religious (and the radical religious) have their place. But our campuses do not love liberty.
David French is a Senior Counsel at the Alliance Defense Fund and the director of its Center for Academic Freedom. ADF was co-counsel in CLS v. Martinez.