The Court has agreed to hear Christian Legal Society v. Martinez, and to decide whether public universities may open up various student group benefits — funding, access to classrooms, and the like — only to groups that don’t discriminate based on race, religion, sex, sexual orientation, and the like.
1. To begin with, I should say that I agree with the Court’s Boy Scouts v. Dale decision: Private groups often do have the First Amendment right to discriminate in choosing their leaders (and their members, though Dale didn’t focus on that), when barring such discrimination would interfere with the groups’ ability to spread their message. I also think that, as a policy matter, public universities should leave groups — even those they support — free to discriminate based on criteria that are relevant to the group’s mission, such as religion, sexual orientation, and, where appropriate, race and sex. Allowing such groups would do more for the cause of genuine diversity of perspective than would any attempt to force integration of those groups.
2. But the question is not just whether the groups have a constitutional right to expressive association — it’s whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.
Let’s set antidiscrimination rules aside for a moment, and consider a university rule that gives benefits only to groups that are run by students. I take it that this would be pretty clearly constitutional, because it involves the university’s preserving university resources for the benefit of students. Yet of course groups have a First Amendment right to select nonstudents as their leaders, and may have good reason to do so. They have a constitutional right to associate — but not a constitutional right to get government benefits for their association.
Or consider a university rule that requires student groups to be democratically run, with each member being given a vote. That too, I take it, would be constitutional. Groups have a First Amendment right to organize themselves in other ways, but a public university may choose to subsidize only democratically run groups.
3. Likewise, let’s turn to fields other than expressive association. Though the Court has recognized the right to get an abortion, it has expressly held that states need not allow abortions in state-run hospitals. People have a constitutional right to send their kids to private school, but states may choose to fund only public schools. People have a constitutional right to spend money to elect candidates, and to lobby the legislature and the public, but the government may decline to subsidize such activities using the charitable tax exemption. (Tax-exempt funds generally can’t be used for electioneering, or for a substantial amount of lobbying. You can find cites for this and most other legal assertions I make here in my Stanford Law Review article on this subject.) The government need not open its property for constitutionally protected solicitors of charitable contributions even when it opens it for leafletters.
So the government generally has no duty to subsidize even constitutionally protected activity, and may even single out some constitutionally protected activity for special exclusion from government subsidies. Again, consider bans on performing abortions in state-run hospitals, or on using tax-supported funds for electioneering. This goes a long way, I think, to concluding that the government need not subsidize groups that discriminate in their choice of leaders or members, just as it need not subsidize groups that choose to have nonstudents run them, and just as it need not subsidize abortions or electioneering.
4. How might antidiscrimination rules imposed by universities be different?
a. If the rules are themselves enforced unevenly — for instance if a Muslim student group is allowed to exclude non-Muslims but a Christian student group is barred from excluding non-Christians — then that would surely be unconstitutional. But I take it that the argument in favor of student groups’ right to discriminate goes beyond that.
b. Where it comes to generally available benefits for speech, the government must not discriminate based on the viewpoint of speech. It may discriminate based on content (recall again the limits on using tax-exempt contributions to advocate the election or defeat of a candidate), but not based on viewpoint: Consider the Rosenberger case, in which the Court held that a state university may not deny generally available benefits to religious newspapers — the Court concluded that this denial was viewpoint-based, because it treated speech expressing religious viewpoints worse than speech expressing secular viewpoints.
Yet a rule denying benefits to groups that discriminate in choice of members or leaders based on applicants’ race, religion, or sexual orientation restricts groups based on their actions — their denial of decisionmaking power or voting power based on certain criteria — and not based on their speech. If the university denied generally available funding to groups that advocate against homosexuality or against religious tolerance or some such, that would be a viewpoint-based exclusion of speech (even if it’s articulated as a ban on supposedly “discriminatory” speech, or as a ban on speech or conduct that creates a “hostile environment” for certain groups). But a rule that groups that get funding must not discriminate doesn’t turn on speech at all; it turns on conduct.
Of course, these antidiscrimination rules are motivated by university officials’ viewpoints. But all rules are motivated by their enacters’ viewpoints (if only the viewpoint that the rule would be a good idea); that can’t be the test for viewpoint discrimination. Likewise, the rules may interfere in some measure with some groups’ ability to spread their viewpoints. But lots of content-neutral restriction (and certainly content-based but viewpoint-neutral restrictions) interfere with some groups’ ability to spread their viewpoints, and may do so more for certain groups than for other groups. A ban on residential picketing, for instance, interferes with people’s ability to spread their viewpoints this way, and disproportionately affects those groups that would otherwise choose to use that medium. But the Court has held that the ban is content-neutral, and it’s certainly viewpoint-neutral.
c. Some people I’ve talked to acknowledge that a university may be free to require that all student groups admit all students, and open their offices to all students (subject, of course, to the requirement that the students be elected by their fellow group members). Such a rule, those people concede, would make sure that university-provided benefits are available to all students. But a rule that lets groups discriminate based on all sorts of things but not based on race, religion, sexual orientation, and so on, they argue, can’t be justified on these grounds.
That doesn’t strike me as persuasive. The notion that discrimination based on certain grounds (but not other grounds) shouldn’t be subsidized with government funds is pretty sensible: The government might reasonably choose to insist that all its funding be available to everyone equally, but it might also want to allow some forms of discrimination but not other forms. The principle that recipients of government funds should be free to discriminate on many grounds but not on race, religion, and the like strikes me as a constitutionally permissible principle for the government to adopt (and it is in fact the principle behind Title VI of the Civil Rights Act, just to give one historical example). I don’t see why universities should be put to the choice of either requiring all student groups to not discriminate at all or leaving them free to discriminate on all possible bases.
d. Might it be that rules that deny funding to groups that discriminate based on religion be special, when applied to a religiously themed student group limiting its membership or leadership? Such an argument would set aside rules related to race discrimination, sexual orientation discrimination, and focus on the fact that religion is an ideology. Other ideological groups, after all, are generally free to discriminate based on ideology; Objectivists might limit membership or officer positions to Objectivists, and the Sierra Club might limit membership or officer positions to environmentalists. Religious groups, the argument would go, should have the same right, and should thus be exempted from bans on religious discrimination, which to them are bans on the very same form of discrimination — discrimination based on the ideology the group was founded to convey — that nonreligious groups are free to practice. Perhaps the ban on religious discrimination is thus itself religiously discriminatory, and violates the Free Exercise Clause, because it denies the Christian Legal Society the same right that the Environmental Law Society possesses.
Yet I don’t think that such a position is consistent with Employment Division v. Smith, which concludes that generally applicable laws don’t generally violate the Free Exercise Clause. The ban on religious discrimination applies, both facially and in practice, to all groups, religious or otherwise. The Sierra Club is barred from discriminating against Jews for Jesus as much as the Jewish Legal Society is barred from discriminating against Jews for Jesus. True, the antidiscrimination rule has a more serious effect on religious groups than on nonreligious groups, because religious groups would derive more benefit from the ability to discriminate based on religious ideology. But any law that happens to prohibit a practice that some religious groups find important would have this effect. Peyote laws, for instance, have a more serious effect on religious groups that see peyote use as a sacrament than on most secular groups whose members may just want to experiment with peyote. Yet such a disparate impact, even when it substantially burdens a group’s exercise of religion, does not even render unconstitutional criminal prohibitions of practices. It surely wouldn’t bar the exclusion from benefit programs of groups that engage in those practices.
5. So my bottom line: I see the value of student groups that limit membership to those whose religion, sexual orientation, or even race or sex are in keeping with the group’s ideological purpose. I don’t think universities should deny funding to such groups. And I think those groups generally have a constitutional right to discriminate in their choice of leaders and members.
But 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. And while these conditions on funding would be unconstitutional if they discriminated based on the viewpoint of the groups’ speech, a ban on discrimination in selecting members or officers is a ban based on conduct, not on the viewpoint of the groups’ speech.
UPDATE: A request: I’m sure many of you take a different view, and I’d be happy to see it expressed in the comments. But if you do so, could you please also explain how you’d deal with a university’s decision to fund only groups that are run by students, or that operate democratically — and, if you reach a different result for those rules than you would for antidiscrimination rules, what you see as the constitutionally relevant distinction. Thanks!