Intimate Association, Fraternities, and Government Subsidies:

The public College of Staten Island refuses to officially recognize groups that discriminate based on sex; this refusal denies the groups various benefits. Last year, a federal district court held that the College's policy violated a fraternity's right to intimate association. Today, the Second Circuit reversed the district court's decision. (Thanks to How Appealing.)

I have argued the district court decision was indeed a mistake: The University is choosing not to fund certain exercises of a constitutional right to intimate association, and the government is generally 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.

I'm not sure about some of the Second Circuit's analysis in today's decision, but the general thrust seems correct: "[The college's] refusal to subsidize the Fraternity's activities does not constitute a substantial imposition on the group's associational freedom. See[, e.g.,] Regan v. Taxation with Representation of Washington, 461 U.S. 540, 546 (1983) ('We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.')" Sounds right to me.

Related Posts (on one page):

  1. Intimate Association, Fraternities, and Government Subsidies:
  2. Intimate Association, Fraternities, and Government Subsidies:
Anderson (mail):
I remember touching on this in my case note on Dale v. Boy Scouts, the "gay scoutmaster" case. I was struck by how the Court seemed to strain the boundaries of "expressive association" when "intimate association," including parents' rights to determine who should supervise their children in a private activity, seemed so on-point. It appears from the precedents that Justice Scalia for one is leery of the very existence of a right of "intimate association."

All this by way of suggesting that Prof. Volokh's article sets out a mode of analysis that may have longer legs than any "intimate association" analysis.
9.13.2007 4:36pm
Fco (www):
By funding the group that is discriminating based on sex, the university is indirectly participating/enabling that process of discrimination, which the government cannot do.

Suppose the university happens to fund ONLY groups that that are restricted to men only, is the university then not complicit in the act of discrimination against the women not allowed to join these groups?
9.13.2007 4:37pm
The Real Anonymous:
Isn't the problem that they will subsidize some groups (that agree with the universities policy and will submit thereto) while not doing the same to other groups (that do not submit to the universities opinion)?

The above examles are comparing apples to oranges. The case in question seems to be a matter of apples to apples. If it were a private university, then it is not a public concern, but it is a concern when a public entitiy starts favoring some groups over others.
9.13.2007 4:46pm
Fco (www):
The problem is not adhering to the university's policy or opinion. Discrimination is taking place while being funded with public money. If an institution is to receive public funds, then it needs to be held to the same restrictions on discrimination the government is held to.

Otherwise, the govt can simply outsource discrimination to third parties. For example, fund only community programs run by NGOs that cater to protestants.
9.13.2007 4:54pm
Matty G:

I agree with your analysis. I do wonder, however, if the specific exemption of social fraternities (and the Boy Scouts, YMCA, etc.) from Title IX has any light to shed in this realm of law? If the judgment of Congress is that sex discrimination should generally be rigorously worked against except in certain specified cases, do those specified cases gain any weight in situations like this, where they are clearly being denied benefits precisely because of the attribute that they are specifically exempted from having to follow.
9.13.2007 5:02pm
There was a similar case here a few years back where a Christian fraternity sued UNC because the school would not recognize them (give them access to server space, a bank account, etc.) unless they signed a non-discrimination pledge. The frat refused to do this because they said they would not admit gays. The fraternity sued in federal court.

The case was never decided on the merits, but at the hearing the judge made clear that the university would lose if it did not change its policy. For the MTD ruling see Alpha Iota Omega v. Moeser, 2006 WL 1286186 (M.D.N.C. 2006).

Sounds like UNC needs better lawyers or more backbone.
9.13.2007 5:02pm
Eugene Volokh (www):
Matty G: Congress chose not to impose a federal ban on sex discrimination by fraternities that get some federal funding. But this doesn't keep states (or state subdivisions, such as public universities) from imposing their own bans.
9.13.2007 5:18pm
Matty G:

Congress chose not to impose a federal ban on sex discrimination by fraternities that get some federal funding. But this doesn't keep states (or state subdivisions, such as public universities) from imposing their own bans

Euguene: Sure, that's obviously correct. But what would it mean if New York State had a similar Title IX situation (which they may or may not, i don't know). Would that alter the ability of individual public universities in the state to withhold benefits from groups simply on the grounds that the group discriminates by sex? Or are we talking apples and oranges here?

To take it one step further - would the university be allowed, under the rubric you have set up, to not recognize single-sex men's organization while at the same time recognize single-sex women's organizations?
9.13.2007 5:26pm
Seamus (mail):
And here I thought that "intimate association" was a judicial euphemism for "rogering". Either the court decided that "intimate" just means "intimate," or else my suspicions about the nature of fraternity life have turned out to be correct.
9.13.2007 6:28pm
Seems to implicate the Unconstitutional Conditions Doctrine to me, but I'd have to really think about it.
9.13.2007 9:24pm
The Unconstitutional Conditions Doctrine does in fact play a role.

The state cannot decline to subsidize a message if it subsidizes all other messages. Or, better put, in the case of an equal subsidy scheme, the state cannot single out a message it dislikes for a denial of that subsidy - provided it is truly a general benefit scheme available to all other messages.

In Capitol Square Review Board v. Pinette (1995), the Court held that the free speech clause compelled the city of Columbus, Ohio, to permit the KKK to erect a large unattended Latin cross on a public square adjacent to the Statehouse, and that the Establishment Clause did not forbid it. The equal benefit scheme was the public forum (the capitol square) on which the state permitted all other messages in the form of free-standing signs. Because the benefit was provided to all, the benefit provided the baseline. If the state removed the cross, it was therefore penalizing the message.

Further, in Rosenberger v. Rector, the Court held that a public university, which provided funding for student-edited magazines, could not, without violating the Free Speech Clause, deny similar funding to an otherwise eligible student-edited evangelical Christian magazine. Once again, the generally available funding for all other student-magazines provided the baseline. The denial of funding was therefore a penalty on the students' exercise of speech.

Now, E.V. said that NY may not ban advocacy of a candidate or legislative proposal, but it need not subsidize it through charitable tax exemption, even if it subsidizes non-electioneering, non-lobbying speech through charitable tax exemption. This is true. But, it would not be true that NY could refuse to subsidize advocacy of a particular (otherwise eligible) candidate whose message it did not like, if it otherwise subsidized all other candidates.

Still, without reading the case, it appears the holding is correct. The university may have disliked the message, but it could not have declined to subsidize it while subsidizing all other messages. That ground for the decision won't work. But the university also has an interest in the non-speech component of the groups' behavior: exclusion/discrimination on the basis of race. The university can most assuredly regulate that, either by affirmative penalties or by equivalent refusal to subsidize in an otherwise equal subsidy scheme (what it actually did). Even if those groups had the purpose of expressing a message by their discriminatory practices, the university can still regulate the discriminatory practices. In such a case, the university is only incidentally suppressing their speech. It's a time, place, or manner restriction, no different from a city prohibiting protesting in the form of arson. It can regulate the arson and incidentally regulate the message, but it cannot regulate the message directly.

In such cases of accidental interference, in order for the regulation (of the non-speech component of the action) to stand, the Court must be satisfied that it satisfies the Clark/O'Brien balancing test - the state's interest (in light of its alternatives) must outweigh the accidental suppression of speech (in light of the speaker's alternatives). Oh, and the court must be certain that the accidental interference really was accidental, and not just a covert means of suppressing the message (see, e.g., TX v. Johnson and U.S. v. Eichman). It seems the court actually applies this balancing, finding the accidental suppression on speech to be minimal: "[The college's] refusal to subsidize the Fraternity's activities does not constitute a substantial imposition on the group's associational freedom."

Finally, a right of "association" does not exist in the Constitution, only a right of "assembly"; that is, a physical assembly (for the purpose of petitioning the gov for a redress of grievances). The cases that have been understood to stand for a right of "association" - NAACP v. Alabama, NAACP v. Button - arguably are better understood as cases in which the state did not win the Clark/O'Brien balancing test. It was either apparent (very apparent in both) that the state's real interest was in suppressing the speech of the NAACP, or the grave interference with speech was not outweighed by a substantial enough gov interest.
9.14.2007 2:44am
David Schwartz (mail):
It seems that the State is okay so long as it handles all types of discrimination in a non-discriminatory fashion.
9.14.2007 9:40am
Eugene Volokh (www):
I discuss the unconstitutional conditions question extensively in the Stanford article I linked to; I ultimately conclude that the doctrine probably doesn't apply here.

Drake: The Court has (whether rightly or wrongly) recognized both a right of expressive association under the First Amendment, and a right of intimate association as a matter of substantive due process.
9.14.2007 11:58am
I admit that I've read neither the case nor the article. My comments were directed only at the brief summary provided in the post. So, apologies if I spoke too soon or on too little information.

I suppose what I meant was that it seems that the recognized right of "expressive association" is really nothing more in practice than a subset of time, place, or manner analysis. So, I really don't see how it is a distinct right conferring distinct protections. Again, could be wrong.

And yes, the Court recognizes a right of intimate association under substantive due process. I didn't mean to deny the existence of that in my previous statement.
9.14.2007 1:11pm
Bruce Hayden (mail) (www):
I found the whole opinion rather humorous, a Jewish fraternity that got itself in trouble for refusing to admit women because that was discriminatory. The Jewish part was fine, since they admitted the token gentile or two, but not the refusal to admit women, even though college fraternities have long done that (and that is why there are sororities). I do wonder though whether the faith of the house would have been an issue if it had been a Christian fraternity, instead of a Jewish one. (In case you think this is a red herring, I joined a fraternity not too long after my house started admitting Jews - about 1/3 of my house was Jewish, the highest percentage on campus. Many of the Jewish fraternities were likely a result of this anti-Jewish policy in effect in many national fraternities into the early 1960s).

I also think it obvious that the judge writing the opinion had not belonged to a college fraternity, based on the finding of facts, that, while not exactly wrong, was rather misleading. Getting the facts right though probably wouldn't have swung the result, since what the Court likely got wrong was the level of intimacy and selectivity, and, thus, only got it wrong as a matter of degree.

Still, having been an active member of a social fraternity at college, I think the Court got the policy all wrong, though it probably got the law right (and if EV says they did, they probably did). As I get older, I have become increasingly convinced that "separate but equal" has a real place when it comes to sex and sexual differences. Single sex schools are one aspect of this, and fraternities and sororities are another. Thirty five years since graduation, and I still have a lot of close friends from college, and almost all of them had some connection to my fraternity. IMHO, allowing women to join as members of the fraternity would have made that level of bonding impossible.
9.14.2007 1:38pm
Jay Myers:
I guess that's bad news for the Chi Iota Omega Sorority, which was founded at CSI in 2003 "to promote sisterhood". Maybe they let guys participate in their sisterhood too?
9.14.2007 2:51pm
John Rosenberg (mail) (www):
I understand Eugene's point that Title IX's exceptions for fraternities etc. are not binding on the state of New York, but I don't understand the inconsistency of CSI refusing to recognize (a penalty, I think, that goes beyond failing to subsidize) an all-male fraternity (isn't that redundant?) while continuing to support and field a whole host of athletic teams from which men are excluded.

"CSI fields women's and
men's teams in competitions
throughout the East Coast...

the college proudly proclaims.
9.15.2007 4:48pm