The upcoming Supreme Court case of Christian Legal Society v. Martinez highlights the fact that universities' expansive understanding of "discrimination" erodes speech and associational rights. As society increasingly likens invidious discrimination on the basis of immutable characteristics like race, gender, or disability to discrimination on the basis of belief or viewpoint, we lose our ability to make critical judgments necessary to develop and express our individuality and beliefs. This problem has certainly manifested itself on college campuses, and student groups at University of California Hastings College of the Law (where Martinez arose) and elsewhere have suffered as a result in their present inability to exercise their First Amendment rights.
Last week, the Center For Inquiry (CFI) filed its own amicus brief in Martinez (ours is here), arguing that a public university's policy requiring student groups to accept all students as members does not violate freedom of association. UC Hastings College of the Law's "all-comers policy" prohibits the Christian Legal Society (CLS) and other student organizations from limiting voting membership to those who share its religious beliefs. CFI's amicus brief contends that this policy is simply a ban on discrimination and thus does not affect expressive association. According to the brief:
Respondents' Policy prohibits all student groups from denying voting membership to a student on the basis of, inter alia, that student's religious beliefs or sexual orientation. Because it regulates conduct, not the dissemination of ideas, and imposes a functionally non-existent burden on the exercise of speech, the Policy is consistent with the Free Speech Clause of the First Amendment.
CFI characterizes the university policy as limiting conduct, not speech, and thus argues that the all-comers policy does not implicate free speech or associational rights. It is true that acceptable aspects of the policy, as applied to the CLS, affect only conduct. For instance, if CLS wanted to exclude students solely based on their race, this type of exclusion would be based upon the status of those prospective members, not on what they believe or how they behave. But forbidding CLS from excluding those who oppose or do not share its religious beliefs strikes at the very core of the group's freedom to decide its own values and viewpoints. Denying CLS the right to exclude those who disagree with the group's beliefs from voting membership in the group deprives CLS of the ability to make judgments about who best represents its message, and impedes the group's ability to disseminate a consistent message—both of which are crucial for freedom of association.
Moreover, expanding what universities understand to be unacceptable discrimination to include any judgment on the basis of viewpoint, politics, or morality not only denies students the ability to exercise their First Amendment rights, but it also trivializes actual invidious discrimination on the basis of immutable status.
An opinion piece in USA Today similarly perverts the concept of discrimination. Although the article seeks a middle-ground solution to the tension between faith and "tolerance," it fails to appreciate that CLS does not discriminate against gays on the basis of their status. CLS accepts gays into its organization. However, whether one agrees with it or not, the group has made the value judgment that homosexual acts are immoral, and it thus accepts as voting members only those gays who share its views.
As FIRE and Students for Liberty analogize in our own amici brief, prohibiting a group of College Democrats from excluding those who identify as Republicans would burden the group's ability to make its own political judgments and then organize with others who share those views. Labeling this type of judgment prohibited "discrimination" is absurd. An individual's ability to decide and express what he or she believes necessarily involves "discriminating" among different views and opposing certain viewpoints—exactly the kind of discriminating judgment that colleges, universities, and law schools normally seek to develop among their students. The First Amendment would be worthless if none of us—either acting alone or in concert with like-minded peers—were entitled to decide what we believe.