Occasionally I see people suggest that private universities are bound by the Free Speech Clause if they get government funding, in the form of various research grants, student loans, and the like. But that's not the law: The Free Speech Clause applies only to decisions by the government (including government-run institutions such as public universities). It generally does not apply when the government merely provides funds to a private institution, that then makes speech-restrictive decisions without command or pressure from the government. The Court squarely held this in Rendell-Baker v. Kohn (1982).
The government may by statute impose many conditions on the use of government funds -- that's what Congress did with Title VI and Title IX (which generally bar recipients of federal funds from discriminating based on race and sex) and with the drinking age. Congress thus probably could mandate that no university which receives federal funds may restrict student speech. (I say "probably" because there are some twists which I set aside for now.) But Congress hasn't enacted such a statute, and it is of course under no obligation to do so.
Such as statute would restrict funds to any universtiy that chose to engage in expressive association. Sounds like a problem to me.
In what way is BSA publicly funded? They seem to be having problems keeping even traditional military sponsorship programs.
You used "which" incorrectly in the penultimate sentence of your post. You are normally so careful! What happened? Please be more careful in the future.
I know that the BSA by me used to (pre Dale) get a number of leases on public land for $1/year.
What is incorrect about that?
yes.
1.) "that;" or
2.) "which" preceded by a comma.
Those who are not created by law... i.e. mankind, are the only ones who aren't governed by the Federal Constitution... (Thus the rights being unlimited as far as the government is concerned.)
But what does it matter? It's not like our government is following the constitution anymore... It's a tyranny... and pretends to be doing for the people, while representatives rake in the cash.
One would think the legal community would be angered by the 16th Amendment. Considering the fact that the founding fathers thought that by adding a Bill of Rights, those rights would be secure... it seems absurd that an amendment could take those rights away by a subsequent congress and several state legislature. The Constitution cannot be altered by a subsequent law by a subordinate authority... yet it happened... and that's when our country was first in danger... and it continues to this day.
I believe you're right, as was eloquently raised by the defense in Faber Disciplinary Council v. Delta
"If this No Duty To Subsidize Principle applies to the right of expressive association, then the government may likewise decline to subsidize certain kinds of expressive association decisions. The Boy Scouts have the right to exclude homosexuals and the nonreligious from membership and therefore from camps, athletic events, meetings, and more. Yet the government may decide that its subsidy programs and its real estate—such as park facilities(except when used as traditional public fora for speech), marinas, [20] rooms in government buildings, and the like—should only be made available for events that are open to people without regard to their religion or sexual orientation."
There is pending a lawsuit in which the city of Philadelphia is seeking to oust the regional Boy Scouts organization from a city-owned building that the Boy Scouts had rented for a dollar a year. The problem is that the Boy Scouts refuse to comply with a city ordinance that bars discrimination on the ground of sexual orientation. Giving them a choice between moving or paying market-rate rent, the city claims that it does not have to give preferential treatment to an organization that discriminates in violation of its law. Needless to say, the Boy Scouts think that, in light of the Supreme Court's decisison in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000), it has a constitutionally protected right to exclude homosexuals from its leadership positions and membership. The city's motive is clear. So does the city have a constitutional duty to continue the previous arrangement on the ground that any change unduly burdens the Boy Scouts' First Amendment rights?
Notwithstanding your desire in footnote 2 not to discuss in detail the refusal of a government entity to provide benefits, either special or general, to a discriminating group, I am curious to know what you think of this case (to the extent that you are familiar with it).
Even purists are OK with using "which" instead of "that" if the sentence already contains a "that," like professor Volokh's did. At least that's the way I recall the Texas Manual on Style.
Speaking of which, I think "y'all" ought to become part of standard English usage. We're in dire need of a plural, second person impersonal pronoun.
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