Less than two weeks ago, we reported on a decision by the United States Court of Appeals for the Ninth Circuit that held that San Diego State University did not violate the First Amendment right to freedom of association of two student groups, a fraternity and a sorority, by denying those groups official recognition (and the attendant benefits of recognition) for allegedly violating the school’s nondiscrimination policy. The case, Alpha Delta v. Reed (.PDF), was merely the latest to test whether an expressive student organization at a public university has the right to restrict membership and leadership to those students who share its core beliefs, or whether groups seeking to impose such restrictions may instead be denied official recognition for not complying with their school’s nondiscrimination policy.
It was with great interest, therefore, that we learned of a settlement reached just last week, as reported by The Chronicle of Higher Education, in a lawsuit filed by the chapter of Christian Legal Society (CLS) at the University of Montana School of Law in a case very similar to Alpha Delta. The settlement came as the case was pending before the very same Ninth Circuit Court of Appeals.
Of course, the issue has taken on added significance in the past year in the wake of the Supreme Court’s decision in Christian Legal Society v. Martinez, in which the Court held that a public university does not violate the First Amendment by requiring its student organizations to admit any student as a voting member or officer, regardless of whether that student openly disagrees with or is even hostile to the group’s beliefs. (The plaintiff student group in Martinez, like the groups in Alpha Delta, required members to subscribe to certain religious beliefs.) Martinez, however, concerned the application of an unusual "all comers" policy against a student group’s desire to exclude those not of like mind; under such a policy, all student organizations must admit any and all students.
"All comers" policies are very rare. Instead, many schools maintain nondiscrimination policies prohibiting student organizations from discriminating on the basis of characteristics such as race, gender, religion, sexual orientation, political belief, weight, hair color, or any of many other characteristics. (Rightly or wrongly, the exact categories of people protected under such policies do not always necessarily reflect the categories enumerated in nondiscrimination laws.)
When these nondiscrimination policies prohibit student groups based around a particular belief from "discriminating" on the basis of that belief, they encumber freedom of association. For example, if the College Democrats aren’t allowed to "discriminate" against Republican students by requiring that leaders of the College Democrats actually be Democrats, the club is rendered unable to voice the precise message it seeks to.
Given this backdrop, we at FIRE, along with many others, have been anxiously watching to see how courts would rule in the aftermath of Martinez. Unfortunately, the Alpha Delta decision disappointingly extends the Supreme Court’s holding in Martinez to the type of nondiscrimination policy (the kind with enumerated characteristics) that is seen on most campuses. As a result, we view Alpha Delta as a significant threat to student rights—at least within the Ninth Circuit, and, given the fact that appellate court rulings are persuasive legal authority, likely beyond.
So, with the writing on the wall and perhaps fearing the worst from the Ninth Circuit, the CLS chapter at the University of Montana School of Law reached an agreement with the school, resolving its lawsuit. Prior to reaching the Ninth Circuit, CLS had lost at the district court level in 2009, with the federal judge ruling that the School of Law did not violate the group’s freedom of association by denying it official recognition and funding from the Student Bar Association (SBA).
In last week’s settlement (.PDF), CLS and the School of Law agreed to a number of points that seek to ensure viewpoint neutrality in the way the SBA administers student organization funding and treats groups like CLS. Among the noteworthy points of agreement are the following:
6. […] On behalf of the School of Law and her successors as Dean of the School of Law, Dean Russell agrees that CLS-UM shall continue to be recognized as an independent student organization (ISO) with the same access to School of Law facilities and channels of communication as enjoyed by ISOs that receive funding from the Student Bar Association (SBA), whether or not CLS-UM receives SBA funding. These privileges include the following:
a. use of School of Law facilities and services that other ISOs enjoy;
b. the same priority and the same means for reserving use of meeting space and facilities for activities and events that other ISOs enjoy;
d. access to channels of communication to the same extent these channels are available to all other ISOs, including but not limited to the School of Law website, bulletin boards (including a designated bulletin board for CLS-UM), email listserves (including "blast" emails to all students), student handbook, Moodie web page and Moodie publicity of CLS-UM meetings and activities, posting promotional materials around the School of Law, and any other means of communication and technology made available to other ISOs;
e. participation in the student organizations’ fair at the same time, place, and manner that other ISOs participate;
i. sponsoring speakers and other events at the School of Law on the same basis as other ISOs […]
This settelement secures important aspects of the CLS chapter’s participation in the life of the law school, and it address many of the concerns that the student groups in Alpha Delta and Martinez (as well as their proponents) had about the practical impact of denial of official recognition. As we have argued on many occasions, denying student groups that wish to associate around shared ideas such opportunities as equal access to meeting space, means of communication, and use of facilities not only punishes them for the proper exercise of their First Amendment rights, but also makes them second-class citizens on their own campuses and essentially relegates them to the sidelines of campus dialogue and discussion. By ensuring that it will not suffer this fate, per this agreement, CLS has done well in protecting its ability to meaningfully exist on the campus of the University of Montana School of Law.
Note, however, that the provision quoted above does not seem to guarantee that CLS will receive SBA funding ("whether or not CLS-UM receives SBA funding"). This understanding is corroborated later in the agreement, which states:
8. CLS-UM acknowledges that the SBA Executive Board currently interprets its bylaws to mean that CLS-UM is ineligible for SBA funding through the SBA annual budget process. Nevertheless, to the extent that this interpretation is modified in the future, CLS-UM may apply for SBA funding through the SBA annual budget process that has been a subject of the litigation identified in Paragraph 1. […] In so agreeing, CLS-UM does not concede that all aspects of the annual budget process are viewpoint neutral; however, CLS-UM will not challenge it if it is administered by the SBA or the School of Law in accordance with the terms of this Agreement.
So what exactly does this provision mean for CLS, going forward? It seems to codify that CLS is not guaranteed SBA funding by virtue of its wish to exclude students opposed to its core beliefs, and it falls short of guaranteeing viewpoint neutrality in all facets of the funding process. To clarify, one should take a look at the purportedly viewpoint-neutral criteria the agreement mandates for SBA funding (see "Viewpoint Neutrality Requirements and Criteria" in paragraph 9.a. of the agreement). These all appear to be sound, perhaps with the exception of the criterion, "Whether the proposed events and activities to be funded are open to all law students." However, to the extent this still allows groups such as CLS to make belief-based choices when it comes to membership and leadership, and merely allows non-likeminded students to attend events, it would not seem to be problematic.
The agreement also provides the following, under "Impermissible Funding Criteria" (paragraph 9.b.):
The SBA Executive Board shall not use the following criteria in preparing budget proposals for funding ISOs:
i. The popularity of an ISO’s viewpoint, including the existence among the student body of opposition to, or support for, the group. However, the SBA Executive Board may consider the number of students expected to be involved in specific activities or events as necessary to estimate variable expenses of the activity or event.
ii. The length of time the ISO has been in existence.
iii. The amount of SBA funding the ISO has received in the past.
This is obviously good, as it insulates minority, dissenting, and controversial viewpoints from being shortchanged in the funding allocation process.
However, nowhere in the agreement does CLS retain the right to make belief-based decisions about its membership and leadership, and the silence on this point in both the "Viewpoint Neutrality Requirements and Criteria" and "Impermissible Funding Criteria" sections is notable. Coupled with the agreement’s lack of a guarantee of SBA funding for CLS, this omission is troubling, and it seems to spell out that if CLS wishes to stick to its guns as far as requiring members and officers to subscribe to its core beliefs, then it is not likely to receive SBA funding.
Of course, the student group’s wish to accept this settlement is understandable given the baseline of campus existence and benefits it has retained (as outlined above), as well as the legal difficulties presented by Martinez and its very recent progeny in Alpha Delta (which, again, sets a major precedent in Montana’s own federal circuit). In the face of these precedential hurdles, the CLS chapter at the University of Montana School of Law appears to have done well for itself. That is not for me to judge, of course, but ultimately for the group itself. If they are satisfied with their ability to disseminate their message on campus under this agreement, then so be it.
For the moment, this case is yet another interesting episode in the aftermath of Martinez, and it helps to inform where the legal landscape currently is in terms of students’ freedom of association at public colleges and universities. Of course, we’ll be following further developments at the University of Montana School of Law, as well as at other schools where this issue arises, here on The Torch.