David French writes at National Review Online:
I don’t have time to detail Eugene’s argument in all its complexity, but the one sentence summary is: Public universities are not constitutionally compelled to provide government benefits (like room access and student fee funding) to “discriminatory” Christian student organizations…. [Here is] his post’s primary shortcoming:
Eugene cites two cases, Boy Scouts of America v. Dale and Rosenberger v. Rector and Visitor of the University of Virginia as foundational to the fraternity’s position. Yet this is incomplete. Boy Scouts (holding that the Scouts could exclude scoutmasters who were openly engaged in homosexual behavior) and Rosenberger (holding that religious student organizations were entitled to viewpoint-neutral access to student-fee funds) are certainly important, but they rest on a foundation of other cases, most importantly Healy v. James (reversing a university’s decision to deny recognition to Students for a Democratic Society) and Widmar v. Vincent (holding that universities had to provide religious student organizations with equal access to university benefits).
Healy is particularly crucial, because it places the discussion of student-organization associational rights in the right context — the university context. I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this, holding that there was a free-association interest in student-organization recognition: “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.” On campus, recognition typically equates with existence.
Everything flows from this initial determination. Once the free-association right locks in, the panoply of associational rights attach — including the now well-established right to expressive organizations to exclude those who do not share the organization’s mission or message. In fact, in Christian Legal Society v. Walker, a similar case, the Seventh Circuit found Healy to be “legally indistinguishable” and then went on to apply Dale to decide the precise associational issue.
On the university campus (this qualifier is critical), the Supreme Court has clearly established the following: Student organizations have a free-association right in recognition; religious student organizations have a right to access university facilities; and religious student organizations have a right to access student-activity-fee funds. On and off campus, expressive organizations have a free-association right to exclude those who don’t share their beliefs.
I’ll have more to say on this topic when I have time, but it is simply wrong to phrase this as a “government benefits” case. It is a governmental obligation to provide facilities access to Christian student groups (Widmar) once they’ve opened those facilities for use by other groups. Similarly, it is a government obligation to fund religious student groups from mandatory student activity fees (Rosenberger, Southworth) if other expressive organizations are funded. Moreover, the Supreme Court has held that student activity fees are a fund that belong to the students — and not “government funds” in the classic sense.
What universities have done is defy their obligations by creating two tiers of access — a right of access for those groups that comply with expansive nondiscrimination policies (including policies that prohibit Christian groups from reserving leadership for Christians, thereby destroying their ability to guarantee the integrity of their message) and the leftovers for everyone else, or even no access at all if “recognized” groups have reserved all space (or taken all the funds). This action essentially overrules Healy, Rosenberger, and Widmar through the back door.
Once again, this (relatively) short post doesn’t address all of Eugene’s comments, so there will be more to say. However, he did ask that any critics address two questions he raised: Can a university require a democratic process for student organizations? No, it cannot. And can it require student leadership? Perhaps, but only because courts have long recognized a distinction between the free-speech rights of students versus off-campus speakers or groups, with the forum created for the students and student groups. See, for example, Widmar.
I look forward to further discussion, but I would submit that by phrasing this as essentially a “government benefits” case, Professor Volokh is missing the point. Student-organization recognition isn’t a benefit; it’s (as the Supreme Court has said) a right.
I much appreciate Mr. French’s response, but here’s why I don’t think it quite works:
1. The government of course has no obligation to fund student groups, or to give them access to university classrooms, bulletin boards, and the like. In that respect, such access is indeed a “government benefit.”
2. Of course, Rosenberger and other cases (including Southworth and Widmar) make clear that the government can’t discriminate based on viewpoint even in the distribution of government benefits, once a limited public forum is created. It may also be in some measure restricted in its imposition of content-based but viewpoint-neutral rules, but that’s not important here. I explained in another post why the non-discrimination rule isn’t viewpoint- or content-based.
3. What about Healy? Healy was also a case in which a group was excluded largely because of its viewpoint. (The group was excluded because the University President “found that the organization’s philosophy was antithetical to the school’s policies,” and “that approval should not be granted to any group that ‘openly repudiates’ the College’s dedication to academic freedom.”) The Court did say that, “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper.” But as the Court has since made clear, student groups don’t have a general right to use campus facilities (such as rooms within university buildings) or bulletin boards. They at most have a right to not be discriminated against based on the viewpoint of their speech (and perhaps in some situations based on the content of their speech) once the university decides to open up such facilities to student groups generally.
4. Nor does Healy suggest that groups have a right to what one might call “associational-choice-neutral” access to property that the university has opened to student groups, much as groups have a right to viewpoint-neutral access to such property. In fact, footnote 11 of Healy expressly says that content-neutral nondiscrimination rules were not at issue in that case:
The standards for official recognition require applicants to provide a clear statement of purposes, criteria for membership, rules of procedure, and a list of officers. Applicants must limit membership to “matriculated students” and may not discriminate on the basis of race, religion or nationality. … Petitioners have not challenged these standards and their validity is not here in question.
So whether the matter arises as to funding or room access at public universities, or funding or room access in other government-owned institutions, the result is the same: The First Amendment doesn’t stop the government from making such benefits available only to groups that don’t discriminate based on race, religion, sexual orientation, and the like.