Let Student Organizations Discriminate, Says Civil Liberties Group

November 4, 2010

Is discrimination on campus ever necessary? A prominent civil liberties group says yes, and its argument is remarkably persuasive.

Student organizations like the College Democrats and evangelical bible study groups can’t exist without the right to exclude dissenters, says Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE). This amounts to a necessary form of discrimination against students who disagree with a group’s mission.

If a university required its progressive magazine to accept columns from every conservative student, “how would you prevent the magazine from being watered down or taken over, or from losing its integrity?” Lukianoff says. “Discriminating on the basis of viewpoint is part and parcel of having a viewpoint-based group.”

Without that ability to discriminate, he says, student groups are denied their First Amendment right to freedom of association.

He made the comments in a Monday speech before the National Association of Scholars, a conservative nonprofit working to counter an alleged “liberal bias” in academia. Yet FIRE is a nonpartisan organization, and Lukianoff says he accepts speaking invitations from groups representing all viewpoints.

He focused his speech on a June 28 Supreme Court decision in CLS v. Martinez. The 5-4 ruling, with the court’s four liberals plus Justice Anthony Kennedy in the majority, went against an evangelical Christian group at the University of California’s Hastings College of the Law that required its members to sign a “statement of faith” proclaiming, among other things, their opposition to premarital and gay sex.

Hastings stripped the evangelical Christian group, known as the Christian Legal Society, of its official recognition, preventing it from meeting on campus and obtaining college funding. Administrators said the school’s anti-discrimination policy prevented CLS from banning students who disagreed with its conservative views.

The case went all the way to the Supreme Court, where Justice Ruth Bader Ginsburg’s majority opinion sided with the university’s “all-comers policy” banning student groups from discrimination.

In his speech, Lukianoff assailed the court’s decision, calling it “fraught with willful blindness.” He says it directly contradicted previous rulings and has “panic-worthy” implications for students at public colleges and universities with similar policies.

He cites Carnegie Mellon, a private university with such a policy, as an example. There, progressive students published on Facebook their intention to band together, join the Young Americans for Freedom, a conservative group on campus, and run for elected office.

The way Lukianoff describes it, you wouldn’t think anyone sane would agree with the court’s ruling. Enter Eugene Volokh, a professor of law at UCLA and author of the popular blog The Volokh Conspiracy, who says the court’s decision makes perfect sense.

The ruling didn’t abridge anyone’s First Amendment rights, Volokh maintains. Just as a university might require groups to limit membership only to students, or to be democratically run, it can also require groups not to discriminate in accepting members.

Such rules don’t abridge students’ right to free association or free speech, Volokh says, since those groups can easily move off campus and operate without formal school recognition:

Just as the right to abortion, speech, or private education doesn’t yield a right to government funding of abortion, speech, or private education—and isn’t even violated by rules that expressly exclude abortion, certain subject matters of speech, or private education from generally available benefit programs—so the right to expressive association isn’t violated by rules that give benefits only to groups that organize themselves in a certain way.

Lukianoff says that’s bollocks. “Official recognition is actually what it means to be a student group,” he says, and it’s nearly impossible for groups to operate without the benefits recognition affords.

“A lot of the time, it means you can’t meet on campuses, can’t apply for student funding, can’t be listed in the student handbook, can’t actually email students,” he says. “It means essentially that you are a nonentity on that campus.”

I’m inclined to agree with Lukianoff and chalk Volokh’s position up to unfamiliarity with student life and campus regulations. While I’ve found policies surrounding student groups to vary widely by campus, it’s usually challenging to operate without formal recognition, particularly at the undergraduate level.

How about on your campus? How easy would it be to operate a viewpoint-based student group without formal recognition? Sound off in the comments.

For more: Check out SCOTUSblog’s analysis of the decision, which adds a few interesting twists.

David Spett is the Journalism Network Associate at Campus Progress.