Virginia ACLU Agrees with FIRE about Liberty University’s Rights

By on June 9, 2009

A very good staff editorial in The Free Lance-Star of Fredericksburg, Virginia, provides some valuable common-sense reflections on the right of private universities like Liberty University to maintain an identity and mission so strongly that they exclude those who do not share their deeply held beliefs:

If you want to join ROTC, don’t go to pacifistic Eastern Mennonite University. If there were such a thing as a Young Aryans Club, you would not find it bearing the coat of arms of Yeshiva University, a Jewish school. Private religious colleges anoint campus groups that are broadly consistent with the colleges’ beliefs and goals. Liberty University (formerly Lynchburg Baptist College) acted consistently with its Protestant fundamentalist ideals when it recently pulled its sanction from LU’s College Democrats.

That’s what FIRE has pointed out more than once here on The Torch. The First Amendment recognizes Liberty University’s right, as a private institution, to set and enforce its own values. That’s the freedom of association at work.

We were pleased to learn that the ACLU of Virginia agrees with usand with the Constitutionon this issue. The ACLU of Virginia’s statement is excerpted here:

The ACLU of Virginia does not believe Mr. Falwell has infringed on the rights of assembly and speech of the College Democrats. In fact, if the government were to try to compel Liberty University to recognize the group, it might be infringing on Falwell’s rights.

That being said, Liberty University has unwisely chosen to restrict the worldview of its students. Our society thrives on open and civil discourse, and we believe Liberty University would benefit from tolerating a greater variety of opinions. …

Among other notable safeguards, the First Amendment prevents the government from suppressing our right to free speech, assembly and petition. Together these explicitly stated rights are interpreted to confer the right of association, for if you can’t gather as a group, club or organization to express your ideas, then the force of free speech is divided and thereby substantially weakened.

Thus, the government cannot interfere with the Liberty University College Democrats any more than it can disband the Democratic Party. But Liberty University is a private school and Jerry Falwell, Jr. is neither the government nor an agent of the government, so his choice not to recognize the club does not pose a constitutional problem.

Yes, what about Liberty’s choice "to restrict the worldview of its students"? What about the marketplace of ideas? Robert and Greg pointed out (and David French agreed) that "[t]he degrees Liberty issues its graduates will lack credibility with certain audiences because Liberty has made impossible a truly free and open debate about issues like abortion, socialism, creationism, and so on." And Greg provided a detailed account of our contract theory of rights at private colleges, which we have maintained since our founding and which "is the only effective way anyone has come up with to acknowledge the rights of private colleges while maximizing free speech." In short, this theory is so effective because it honors the expressive rights of associations as well as individuals, requiring that individuals be permitted free choices to sign up for restrictive associations if that’s what they want to do.