A disappointingly misguided editorial in yesterday’s Cornell Sun argues that a recent vote by Cornell’s University Assembly to protect freedom of association on campus amounts to an endorsement of "discrimination." Unfortunately, The Sun‘s faulty reasoning reveals a meager understanding of the right to expressive association—a right protected by the First Amendment and decades of Supreme Court jurisprudence.
As Luke explained here on The Torch yesterday, the University Assembly voted late last month to scuttle changes to Cornell’s Campus Code of Conduct that it had recommended in April. The proposed changes sought to prevent student groups from "discriminating against" students by making any such "discrimination" a violation of the Code of Conduct.
This might sound like a reasonable goal on its face. But the reason I’m putting "discrimination" in quotes is because the proposed change was designed specifically to prevent student groups from requiring that their leaders and voting members actually agree with and abide by each student group’s beliefs and core tenets.
That’s not discrimination—that’s engaging in expressive association, and it’s protected by the First Amendment.
All of Cornell’s 833 student organizations should have the right to require that their leaders and voting members actually believe in the group’s raison d’etre. After all, the Cornell College Democrats would be understandably frustrated if they were forbidden from removing a Republican student activist from their leadership. And accusing the College Libertarians of "discrimination" for kicking out a voting member who wrote op-eds ridiculing libertarian principles wouldn’t make sense, either.
The problems with the proposed change are just as apparent when considering its application to Cornell’s religious student groups. If the Catholic Fellowship asks that voting members and leaders be practicing Catholics, are they discriminating against Muslim students? If Hillel or the Hindu Student Council require that their leadership be Jewish or Hindi, respectively, are they discriminating against Cornell’s atheists?
Of course not. In each example, the student group is simply insisting that it be allowed to control its message by making sure its members actually believe in its purpose. That’s why this is a free expression issue—and why The Sun‘s editorial misses the mark.
The Sun doesn’t have to take FIRE’s word for it. The United States Supreme Court has articulated precisely the same principle over the past twenty-five years.
In Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984), the Court held that "a corresponding right to associate with others in pursuit of a wide variety of … ends" is "implicit" in the First Amendment. The First Amendment guarantees freedom of association because "the right to speak is often exercised most effectively by combining one’s voice with the voices of others." Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 68 (2006). Government can’t interfere unduly with freedom of association because to do so would punish "groups that would rather express other, perhaps unpopular, ideas." Boy Scouts of America v. Dale, 530 U.S. 640, 647-48 (2000). As a result, "freedom of association plainly presupposes a freedom not to associate." Roberts, 468 U.S. at 623 (emphasis added).
What The Sun misses, then, is that freedom of association means organizations enjoy the right to make belief-based leadership and membership choices, including the choice to exclude from the organization people who do not share its core beliefs. Put another way, freedom of association at its core grants a right to "discriminate" on the basis of belief. Expressive organizations must be permitted to make belief-based choices when choosing their leaders and voting members.
Why must an organization’s choice to exclude be "belief-based"? Because there’s a difference between immutable characteristics, like gender or race, and personal beliefs or conduct, which an individual can change. As FIRE noted in our amicus brief filed with the Supreme Court in support of a petition to review the Ninth Circuit’s decision in Truth v. Kent School District:
Distinguishing "discrimination" on the basis of belief from invidious discrimination based on status is critical. Excluding individuals because of animus based on immutable characteristics like race does not follow from the right to form expressive organizations, because one’s skin color does not define one’s beliefs. However, the right to exclude people who do not share a common belief central to the group’s purpose is fundamental to the right to expressive association.
In the case prompting the current controversy at Cornell, Chi Alpha Christian Fellowship asked a student to step down from a leadership position after the student’s understanding of and relationship to his sexual orientation changed. As Matt Herman, Chi Alpha’s campus chaplain, explained in an op-ed in The Sun:
In regards to [Cornell student] Chris [Donohoe]’s position of leadership in Chi Alpha, the process and decision was slow and deeply discussed. Before last summer, Chris sat down with Tracy, another student leader and myself to discuss some interpersonal issues, his changing view toward the Bible concerning homosexuality and his newly developing relationship with another male on campus. It was during this meeting when we communicated Chi Alpha’s nationally held belief that homosexual behavior is a sin and, as with any sin, those who insist and promote sinful behavior should not hold leadership positions. This point is key, so I will reiterate it. The issue is not that Chris feels same-sex attraction. The issue is that he now celebrates what the Bible calls sin. This is inappropriate for a Christian leader.
When the summer ended I had a long conversation with Chris in which he affirmed his decision to live an openly gay life and stated that he now completely disagrees with Chi Alpha’s theological understanding of the issue. It was at this point that Chris was asked to step out of his leadership position in accordance with our previous conversation. As we talked over the phone, we agreed that we did not want our friendship to change and clarified that he was not being asked to leave Chi Alpha.
According to Herman, Chi Alpha didn’t ask the student to step down from a leadership position because of his sexual orientation; it asked him to step down because of his changing views about his sexual orientation. While Chi Alpha’s religious beliefs may not be popular on campus, the group cannot be punished for acting to ensure that its leadership and voting members actually share those beliefs.
Commendably, Cornell President David Skorton understands the importance of allowing groups to make belief-based choices about their membership. In response to the University Assembly’s proposed changes in April—and following receipt of a letter from FIRE—Skorton asked that a footnote be inserted into the policy to assure protection for "free speech, freedom of association and religious freedom."
While encouraging, this footnote wasn’t quite enough of a guarantee that groups like Chi Alpha wouldn’t be punished, as 2009 FIRE intern and current member of the University Assembly’s Codes and Judicial Committee John Cetta wrote in a letter to The Sun in September. That’s why the University Assembly’s decision to drop the change altogether pending further debate was a step in the right direction.
Unfortunately, The Sun fails to grasp the fundamental importance of allowing groups the right to determine their membership—and accordingly their message—for themselves. The Sun accuses "outside organizations like FIRE" of "mask[ing] anti-discrimination policy as an infringement on the freedom to express." But The Sun, while acknowledging that "[s]tudent groups have every right to express their beliefs," doesn’t realize that when a group requires that its leadership and voting members share its core worldview, the group is simultaneously expressing, and preserving its ability to express, its message.