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Intimate Association, Fraternities, and Government Subsidies:

The Foundation for Individual Rights in Education points to a decision from last month that I hadn't noticed before:

Last month, Judge Dora L. Irizarry issued a preliminary injunction requiring the College of Staten Island (CSI) to officially recognize Chi Iota Colony of Alpha Epsilon Pi (AEPi), a Jewish fraternity (Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 2006 U.S. Dist. LEXIS 56257 (E.D.N.Y. 2006)). Prior to the injunction, CSI's Office of Student Life had refused to recognize AEPi, insisting that doing so would "contravene[] the College's non-discrimination policy" because of AEPi's constitution, which requires the group's membership to be male.

But citing the fraternity's status as "an organization that promotes congeniality and a supportive social structure for male students," Judge Irizarry found that CSI's refusal had likely violated the fraternity's First Amendment right to freedom of intimate association.

Indeed, Judge Irizarry's focus on fraternity membership as a protected form of "intimate association" is what's most interesting about this ruling, because classifying fraternities and sororities as types of intimate association affords Greek organizations at public schools a new constitutional protection against hostile administrators.

The Supreme Court has indeed recognized a right of intimate association, which protects people's choices of whom to let into their (relatively) small and selective groups. I'm generally free to decide whom to invite to dinner, or whom to choose as a roommate, even if I discriminate based on race, sex, religion, sexual orientation, or what have you, and even if some law purports to regulate my decision. This right doesn't extend to broad, not very selective groups like the Jaycees, but it does extend to some smaller and more selective clubs.

But here New York wasn't trying to ban single-sex groups — the City University of New York (College of Staten Island) simply has a policy of recognizing only groups that don't discriminate based on (among other things) sex, and thus denies them access to university facilities, services, bulletin boards, centralized mailbox, funding, and some other benefits. The University is thus just choosing not to fund certain exercises of a constitutional right to intimate association. (An unusual choice, since to my knowledge most Universities offer such benefits to single-sex fraternities and sororities — as they are clearly constitutionally free to do — but unusual choices aren't unconstitutional just because they're unusual.)

And generally speaking, the government is perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that's in some ways an alternative to that exercise of a constitutional right). Consider some examples ("need not" below means "has no federal constitutional obligation to"):

Right to abortionNew York may not ban abortions,but it need not pay for them with state funds, or allow them to be performed at state-run hospitalseven if it chooses to pay for childbirth.
Right to free speechNew York may not ban advocacy of a candidate or a legislative proposal,but it need not subsidize it through the charitable tax exemptioneven if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
Right not to marryNew York may not require people to marry,but it need not give unmarried couples or platonic roommates special dorm housing,even if it subsidizes married couples by offering such housing.
Right to privately educate one's childrenNew York may not ban private education,but it need not pay for private education,even if it pays billions for public education.
For more on these examples, see my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), which discusses all this in the context of the right to expressive association rather than intimate association.

Now there are some exceptions to this No Duty To Subsidize Constitutional Rights principle. The government may not discriminate based on people's religiosity; it in many situations may not discriminate based on the viewpoint of people's speech; and under some jurisdictions' statutes and constitutional provisions (it's not clear whether New York would be one such jurisdiction), the government may not exclude people from at least some subsidies when that burdens their religious practice. But none of these exceptions are in play here: Though the fraternity is Jewish, it's not claiming that excluding women is part of its religious practice, or that the government is targeting the fraternity because it's Jewish (or more broadly because it's religious). And while obviously both the fraternity's and CUNY's actions are founded on the fraternity's and CUNY's viewpoints about single-sex organizations — as all actions are founded on the actor's viewpoint about the propriety of the action — CUNY's action definitely does not treat groups differently based on the viewpoints that they express through their speech, which is what it takes to make CUNY's action viewpoint-based. (Again, for more on this, see here.)

All we have here is a government choosing not to offer government benefits to support the exercise of a constitutional right — and whether that's the right to abortion, to private education, to speak, not to marry, or to intimately association, the U.S. Constitution leaves the government free to do that. The government's choice here may be faulted as taking antidiscrimination logic to extremes, as undermining a useful form of private association, or as being intolerant of genuine diversity. But it's not unconstitutional.

UPDATE: A commenter suggests that the government may not limit access to government property to people exercising their constitutional rights, even if it may limit access to funds. But the Court has (in my view rightly) generally treated access to property the same as it treats access to other benefits. The government may choose not to pay money to subsidize abortions; but it may also choose not to let public hospitals be used for abortions, even if the doctor and patient offer to pay for access. The government may choose to let public schools but not private schools have access to certain government property (e.g., school classrooms after hours). A university may choose to open space in classrooms after hours to certain speakers (e.g., student groups) but not other speakers (e.g., nonstudent groups, no matter how constitutionally protected those nonstudent groups might be), or to certain subject matters but not other equally constitutionally protected subject matters.

The one exception is government "traditional public forum" property -- parks, sidewalks, and streets -- but that isn't involved here.

Related Posts (on one page):

  1. Intimate Association, Fraternities, and Government Subsidies:
  2. Intimate Association, Fraternities, and Government Subsidies:
jgshapiro (mail):

But here New York wasn't trying to ban single-sex groups -- the City University of New York (College of Staten Island) simply has a policy of recognizing only groups that don't discriminate based on (among other things) sex, and thus denies them access to university facilities, services, bulletin boards, centralized mailbox, funding, and some other benefits.

Doesn't the import of this decision depend on what is meant by "recognize"?

Many, though not all, of the benefits you point to don't seem like subsidies to me as much as provisions for access. If allowing access to U facilities is a "subsidy," then you could effectively ban any private organization by acknowleding that they exist but refusing to formally "recognize" them and thereby essentially prevent them from functioning (or alternatively, you could place such burdens on their functioning that they could not achieve their goals as an organization).

Access is not the same as funding. There is a difference between saying, on the one hand, that the right to travel does not mean the government has to buy your bus ticket, and saying on the other hand, that the government acknowledges your right to travel but can nonetheless refuse to let you ride on a public bus, even if you pay your own fare.
9.19.2006 6:22pm
dick thompson (mail):
I wonder if the college permits a sorority to place an announcement on a bulletin board. The first time they do your whole point is right out the window.
9.19.2006 8:22pm
logicnazi (mail) (www):
So do buses count as a traditional public forum? Could the government ban anyone who is part of a single sex club from taking the bus?

I really don't think the case is as clear cut as you make it out to be here. Suppose the state of New York decreed that no one who had ever been a member of an explicitly single sex group could attend public colleges in New York. Would it be okay if it was only people who were currently part of such a group.

I think there is an important distintion to be made between the governments ability to deny the use of it's facilities for activities it disapproves of and the government's ability to punish people who act in ways it disapproves of by barring their use of such facilities. Moreover, there is no way you can try and use the traditional public forum out here as having the power to deny students entrance makes it clear a university is not a public forum in the way you suggest.

In a larger sense the problem is (as I believe Justice Stevens observered) that given that the government is funded through taxation their is no principled distinction between a fine and a mere denial of benefit. I mean suppose the government in the future raises tax rates to 75% but in return provides complete health care, education, child rearing etc.. all for free. Now if the government chooses to exclude you from these benefits it has effectively fined you 75% of your income.

In short the government can't be allowed to get away with a penalty for a constitutionally protected action by rewording it as a tax that everyone pays which is 'refunded' in some manner only to those who don't engage in the constitutionally protected activity. For instance I think denying people who were members of extra-curricular same sex groups public schooling through elementary and HS would clearly count as a penalty for engaging in the behavior. It is less clear with college but I am inclined to think it also falls on the same side.

However, when it is just the denial of public propert to engage in the activity I don't think it is problematic.
9.19.2006 10:24pm
logicnazi (mail) (www):
Perhaps I misinterpreted you and you only meant the less broad point that the government could refuse to allow the use of public property for the act itself.

If so I agree with you but the justification you gave would seem to equally well support denying individuals who had engaged in that right public benefits. Perhaps I'm just ignorant of a distinction you assumed to be obvious.
9.19.2006 10:26pm
Toby:
I imagine the University is requiring those students pay student fees for use of those facilites. Of course, in the interests of more affordable education for all, the University could renounce mandatory "student fees" and thenits function as gatekeeper of the politically correct would be more defensible.
9.19.2006 11:48pm
Eugene Volokh (www):
logicnazi: The article to which I link from my post describes the very issue you describe. There is indeed a difference between denying a subsidy for the exercise of a constitutional right, and denying a subsidy to those who have exercised the right before but aren't doing it now; the government may refuse to fund abortions, but it may not, for instance, refuse to give welfare benefits to any woman who got an abortion. The caselaw on this is pretty clear, and my article discusses it in detail.

Here, though, no student is being penalized in his capacity as student for having once belonged to -- or even for now belonging to -- a single-sex group. It's only the group itself that's not being given the special group rights that the university gives to other groups.
9.20.2006 12:59am
Mary Katherine Day-Petrano (mail):
"All we have here is a government choosing not to offer government benefits to support the exercise of a constitutional right — and whether that's the right to abortion, to private education, to speak, not to marry, or to intimately association, the U.S. Constitution leaves the government free to do that."

Actually, there is an instance when government is required to offer government benefits to support the exercise of a constitutional right -- under Title II of the Americans With Disabilities Act, government is required to pay for (not surcharge) the reasonable accommodations needed for a disabled person to communicate (First Amendment), 28 C.F>R. Sec. 35.130(f); further, such reasonable accommodations subsidies are preferences provided to the disabled while not accorded to the nondisabled. US Airways v. Barnett.
9.20.2006 1:54am
Eugene Volokh (www):
I was speaking throughout of whether the university was violating the students' federal constitutional rights -- the question at issue in the lower court decision. Of course federal or state statutes, or a state constitution, may provide extra rights, but none seem implicated here.
9.20.2006 2:06am
ReaderY:
Some people find a lot of activities besides physical sex important parts of their lives. Why shouldn't they be equally free to choose their partners? The right of "intimate" association is based on the Supreme Court members' personal belief that certain types of associations are more "intimate" than others and that these associations have special social value. Why should people with a different value system be prevented from democratically or judicially lobbying for their preferred types of associations. Millions of people have divorced because they chose their jobs over their spouses in a conflict. The Supreme Court may believe people with such an associational-preference value system to be sinners, unAmerican, uncostitutional, what have you. But is this a rational basis for public policy? When judicial preferences (such as the concept of "intimate" associate and what judges consider to be "intimate") descriminates against an identifiable political group, shouldn't it be subject to equal-protection challenge? Why only constitutional provisions to happen to be in text? And given that the First Amendment doesn't qualify association at all (unless one takes context that would appear to limit it to political associations seriously), why shouldn't people get to decide for themselves which kinds of association they value?
9.20.2006 6:33am
Public_Defender (mail):
I chose my undergraduate in part because it banned fraternities and sororities. Are students who want to go to a school with a Greek-free social life now banned from public universities? I hope the school fights and wins this on appeal.

I'm glad some schools offer fraternities and sororities, but you shouldn't have to pay private college tuition to avoid them.

That said, does anyone have a link to the opinion? It's difficult to criticize an opinion without reading it.
9.20.2006 6:39am
HowardWasserman (mail):
Under Rosenberger, the funding program is a designated public forum and in defining the scope of that forum, the government cannot discriminate based on viewpoint (i.e., it cannot define the forum as for speech on some issues, but not if the speech on that issue comes from a religious perspective). So the university could not deny funding to a group that, say, advocated separation of the sexes in the university community. And under Dale, an association cannot be forced to accept members or leaders if doing so would interfere with its message.

But is an anti-discrimination provision in the requirements for the funding program essentially the same thing? The policy that requires groups to accept members/leaders as a condition of access to the forum (the pot of money), which sounds like the functional equivalent of a viewpoint-based limitation on the definition of the forum (and who can access the forum). A group is being denied the opportunity to exist and speak on the same terms/conditions as other groups unless it alters its message or beliefs by accepting particular members.

Or does the concept of viewpoint discrimination in speech not translate into the association context in this way?
9.20.2006 7:33am
DavidBernstein (mail):
Eugene, why isn't access to bulletin boards and the centralized mailboxes more akin to access to government property and less akin to funding?
9.20.2006 11:06am
Will Creeley:
For those interested, a copy of the opinion is available for download here.
9.20.2006 3:13pm
Eugene Volokh (www):
David: I think access to government property and access to funding are similar, and the government may choose to give such access to some groups but not others (though not in viewpoint-discriminatory ways) -- just as the government may choose to make government funds and property available for childbirth but not abortions.

The one exception is "traditional public forum" government property, such as parks, sidewalks, and streets, which the government must open up to speech, even though this provides something of a subsidy; but that's a pretty narrow exception that's not implicated here.
9.20.2006 10:40pm