Four weeks after North Carolina Governor Pat McCrory signed into law a bill that allows religious and political student groups at the state’s public colleges and universities to limit their leadership to students who are committed to the group’s mission or faith, the debate continues over whether this was the right step to take to protect student rights. Last week, William R. Toler relayed some of the arguments for and against the bill in an article for The Richmond County Daily Journal.
According to the Daily Journal, State Representative Garland Pierce argued that the law “is giving students the right to do anything they want without any accountability.” And American Civil Liberties Union of North Carolina (ACLU-NC) policy director Sarah Preston argued that the law forces “taxpayers to fund school groups even when they discriminate by rejecting students based on their race, sex, religion or sexual orientation.”
Here’s what the law actually says, though:
(a) No constituent institution that grants recognition to any student organization shall deny recognition to a student organization or deny to a student organization access to programs, funding, facilities, or other privileges associated with official recognition otherwise available to another student organization, on the basis of the organization’s exercise of its rights pursuant to subsection (b) of this section.
(b) To the extent allowed by State and federal law, a religious or political student organization may, in conformity with the organization’s established written doctrines expressing the organization’s faith or mission, (i) determine that only persons professing the faith or mission of the group, and comporting themselves in conformity with, are qualified to serve as leaders of that organization, (ii) order its internal affairs according to the established written doctrines, and (iii) resolve the organization’s disputes according to the established written doctrines.
In other words, student groups can set limits on who may lead the group based on a person’s beliefs and actions—not his or her status, such as race, sex, or sexual orientation. Simply put, the law doesn’t allow groups the sweeping discretion to “discriminate” asserted by Pierce and Preston.
As Toler suggests in his article, with a nod to FIRE’s work, this authority is necessary in order to protect groups that other students may disagree with:
In his 2012 book “Unlearning Liberty,” FIRE President Greg Lukianoff showed — in a chapter on freedom of association on campus — how a law like North Carolina’s could prevent a hostile takeover.
Lukianoff recounted a situation where students at Central Michigan University, unhappy with the group Young Americans for Freedom, actually planned to infiltrate the group’s meetings and vote each other into office, in order to take over and dissolve the club.
The assistant director of student life told YAF members that school policy dictated they could not discriminate against membership or leadership, even in a belief-based organization.
After FIRE became involved, the college’s president issued a statement to all campus clubs saying, “A belief-based registered student organization may use its belief system as a criterion for selection of membership and leadership.”
Without this intervention, small groups whose members share minority viewpoints are especially at risk. To speak to the ACLU-NC’s concerns: An LGBT rights advocacy group would have no recourse if students opposing LGBT rights constituted the majority on campus and wanted to vote out all LGBT leaders in order to effectively shut the group down.
While it is a positive step that North Carolina, Ohio, Idaho, and Virginia have all passed laws protecting campus student groups in this way, student groups in most states remain at risk after the Supreme Court’s 2010 decision in Christian Legal Society v. Martinez. In that case, the Court ruled that universities may implement so-called “all comers” policies, which require officially recognized student groups to accept all members, even if they disagree with or are hostile to the mission of the group. But in Toler’s article, FIRE’s Robert Shibley explains why universities should decline to enact these policies:
Shibley said that while Martinez OK-ed pure “all-comers” policies, virtually no school is bound to follow the ruling.
“For example, under the logic of Martinez, it is impossible to justify fraternities or sororities, which exclude students not based on ultimately changeable beliefs, but on the immutable characteristic of sex,” he said. “It also does not make an allowance for merit- or talent-based groups.”