Last month, House Bill 2625 passed both houses of the Arizona state legislature and is now awaiting the governor’s signature. The bill contains a provision that would require universities to allow religious and political student organizations to select members and leadership based on a commitment to the organization’s mission.
This provision appears to be enacted in response to last year’s Supreme Court decision in Christian Legal Society v. Martinez, which held that universities may constitutionally prohibit student organizations from denying membership to any interested student. As we have argued extensively (and as I contend in scholarship that will soon be published in the Texas Journal on Civil Liberties and Civil Rights), enacting the type of “all-comers policy” that was at issue in Martinez, and denying student organizations the ability to select membership and leadership on the basis of shared beliefs, infringes upon students’ First Amendment right to expressive association—although the Supreme Court held otherwise in its 5-4 decision.
Although the Martinez Court held only that universities may enact “all-comers policies,” the Court did not require universities to do so. The new Arizona bill seeks to ensure that Arizona public universities and community colleges cannot enact these all-comers policies—policies that would undermine the expressive association rights of students who wish to join political or religious student organizations. The bill provides that:
A religious or political student organization may determine that ordering the organization’s internal affairs, selecting the organization’s leaders and members, defining the organization’s doctrines and resolving the organization’s disputes are in furtherance of the organization’s religious or political mission and that only persons committed to that mission should conduct such activities.
Unfortunately, as an article in Arizona State University’s The State Press indicates, there is widespread confusion about whether the bill will facilitate discrimination or prevent discrimination. The Tempe Undergraduate Student Senate has written a resolution in opposition to this provision of the bill because it believes the bill would cause discrimination among university clubs. In contrast, the sponsor of House Bill 2625, Rep. Steve Court, stated that the bill is “designed to prevent discrimination.”
There are legitimate arguments on both sides of the issue, but the relevant question is which types of “discrimination” universities should be concerned with preventing. As FIRE has previously argued, the ability of a student organization to limit its membership to those who share its mission and values is not the type of “invidious” discrimination that universities should try to prevent. In fact, allowing students to exercise their right to expressive association in this way will actually foster a diversity of viewpoints, as those with minority or unpopular views can join together to facilitate their expression. Thus, House Bill 2625 will prevent “discrimination” in the sense that it will ensure that religious and political student groups with minority viewpoints can freely associate without being taken over by those hostile to their views. And, although the bill will allow student groups to “discriminate” against members who do not share their mission, a university’s Campus Democrats organization should not be considered to be discriminating in the invidious sense when it seeks to exclude Republicans who are not committed to its purpose.
House Bill 2625 also contains various other provisions regarding discrimination against religious viewpoints in the classroom. We take no position on those provisions at the moment, although they may have implications for academic freedom at universities in Arizona.
It is unfortunate that a lack of clarity pervades the issues surrounding student organizations and their expressive associational rights. We hope that the Arizona governor’s office will research these issues carefully in deciding whether or not to sign House Bill 2625.