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‘News & Observer’ Highlights Clash Between First Amendment and Nondiscrimination Policies

By February 17, 2014

Some North Carolina universities have policies that explicitly allow student groups to limit active membership to those who share the core beliefs of the group, and, as FIRE has explained before, these policies are critically important for protecting students’ right to freely associate on campus. Unfortunately, not all North Carolina schools have such policies, and even universities that purport to protect freedom of association in this way have nevertheless attempted to suppress student groups under anti-discrimination policies. FIRE’s Robert Shibley helped author an article in Raleigh’s The News & Observer that detailed the problem—and a possible solution.

The right to associate freely on campus is already on shaky ground in most states. In Christian Legal Society v. Martinez (2010), the U.S. Supreme Court ruled that it is not unconstitutional for schools to enact “all-comers” policies—policies that require groups to accept all potential members, even those who might be hostile to the group’s core beliefs. Although these policies are sometimes labeled “anti-discrimination” policies, all-comers policies often forbid not just discrimination based on status but also limitations on membership based on beliefs, making some groups vulnerable to message dilution or other problems caused by those who don’t fully agree (or even flatly disagree) with their missions.

Some schools go even further than what is allowed under CLS v. Martinez, however. Student association rights are most in jeopardy at schools that openly consider the viewpoint of student groups in deciding whether to officially recognize them. This kind of viewpoint discrimination was determined to be unconstitutional in two notable Supreme Court cases: Rosenberger v. Rector and Visitors of the University of Virginia (1995) and Board of Regents of the University of Wisconsin System v. Southworth (2000). The News & Observer op-ed gives an example:

For example, at Appalachian State [University], a group’s purpose must be “compatible with the overall mission of the university” and there must be a “need” for the organization. Who is to decide whether a pro-marriage group, based on Christian faith, fulfills a “need”?

A public institution like Appalachian State may not engage in viewpoint discrimination among student groups by recognizing only groups that further a university-approved mission. Yet Robert and his co-authors also note that student organizations continue to encounter problems even at universities with policies that are meant to uphold the First Amendment:

UNC-Greensboro has a … policy [that] states, “Student groups that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the group to students who, upon individual inquiry, affirm that they support the group’s goals and agree with its beliefs.” In spite of this policy, “Make Up Your Own Mind,” a pro-marriage, pro-life club at UNC-Greensboro, was initially denied recognition. The university claimed that the club was not religious, even though the club required its members and leaders to agree with its faith-based statement.

This incident and others like it demonstrate the need for statewide legislation like that passed in Ohio and Virginia. Both states have enacted statutes to protect religious pluralism on campus, with Virginia’s protection extending to political organizations as well. Even better, a statute protecting all belief-based organizations, rather than just religious organizations, would have precluded UNC-Greensboro from trying to deny Make Up Your Own Mind recognition because it allegedly wasn’t religious. And a statewide policy would protect freedom of association for all North Carolina students in light of the Supreme Court’s decision in CLS v. Martinez—not just students at schools that are particularly committed to First Amendment rights.

Read more about the intersection of First Amendment rights and nondiscrimination policies in North Carolina schools in The News & Observer.

Image: Cape Hatteras lighthouse in North Carolina – James Jordan

Schools: University of North Carolina – Greensboro Cases: University of California Hastings College of the Law: Denial of Recognition to Christian Law School Group