The Volokh Conspiracy

David French, with whom I’ve been having a very enjoyable discussion about this case, posts further on the subject:

I want to focus my response on one item [from Volokh's previous post] — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:

The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which ... subsidizes ... racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)

But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial discrimination. Of course, that doesn’t mean the individuals don’t get their feelings hurt when they’re excluded from organizations, but that doesn’t provide a pretext for state action.

One of my favorite examples of these kinds of real-world controversies is an old one from a private school, Central College in Iowa. There, a Christian group asked their president to step down after he “came out of the closet” and stated that he not only didn’t agree with the organization’s beliefs regarding sexual morality; he also didn’t even consider himself a Christian (I advised the Christian group in the case). The student was enraged when he was asked to step down, but — honestly — did he have a reasonable expectation that he should be permitted to lead? Is it invidious discrimination for a Christian student group to ask that its leaders be Christian?

As an aside, while the current debate is centered around the ability of groups to exclude based on sexual-conduct rules and beliefs regarding sexual conduct, not all religious disputes deal with sex. Under the Ninth Circuit’s ruling in Martinez, the university would find itself in the middle of discrimination complaints based on the finer points of theology, if — to take from a real-world example — a student group had a dispute over the doctrine of justification. Or what if a student group wanted to expel a malicious Fred Phelps-type pseudo-religious lunatic? Is it really the role of the university to step in and tell CLS that they have to keep such malignant individuals in their midst?

Even further, where is the state interest in forced inclusion when excluded individuals have the right to form competing student groups, seek student-fee funding, and gain access to facilities? In other words, they have the right to confront what they perceive to be bad speech with their own, better speech?

Regardless of the framework for deciding Martinez — whether it’s the Seventh Circuit’s Healy-based associational analysis, the Ninth Circuit’s forum analysis, or something else entirely — the question of state interest will come up. And at that point, CLS can rely not just on common sense, but on a long line of Supreme Court precedent acknowledging (and protecting) the right of private organizations to form around shared beliefs and to enforce rules that protect the integrity of their message.

The bottom line? There’s a qualitative legal and moral distinction between invidious racial discrimination and a religious group’s asking that its members share the groups’ religious beliefs. I believe (and hope) the Supreme Court will see (and recognize) that distinction.

It seems to me that Title VI wasn’t limited to “invidious” discrimination in the sense of discrimination motivated by hatred, hostility, or a desire to harm. An Armenian-American organization, for instance, that only benefits Armenian-Americans — not because its managers dislike others but because they feel a special concern for the welfare of their own group — would be covered. It may well be that, especially in 1964, most instances of race, color, and national origin discrimination were motivated by hostility; but certainly not all were, yet the law covered discrimination generally, without any special inquiry into its motivation. (This was in some measure modified by Bakke‘s interpretation of Title VI in 1978, but even after that proof of hostility is not required for Title VI to apply.) Likewise, Title IX’s extension of Title VI principles to many forms of sex discrimination applies to discrimination that isn’t motivated by hatred, hostility, or a desire to harm.

Likewise, it seems to me that there is an eminently conceivable, and legitimate, state interest in denying government funds to groups that discriminate based on religion, sexual orientation, and such, even when the discrimination is “commonsense” and “mission-based.” It is reasonable and legitimate for the state to say that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion — even noninvidious fashion — which subsidizes religious or sexual orientation discrimination. And this is so even though some of the applications of this prohibition would apply to discrimination that isn’t motivated by hatred, hostility, or a desire to harm, but is itself commonsense and mission-based. The government may choose not to subsidize the exercise of the right to discriminatory expressive association, even when the discrimination is perfectly well-motivated, just as the government may choose not to subsidize electioneering or substantial amounts of lobbying, even though such electioneering or lobbying may be perfectly well-motivated.

As I’ve said before, I think the decision to completely exclude groups that discriminate from subsidies is unwise, for some of the very reasons that Mr. French gives. I think universities should allow university-funded groups to discriminate in ways that further their missions, especially based on religion (which as an ideology is especially important to maintaining certain groups’ mission) but also based on sexual orientation, race, sex, and the like. Allowing this would likely actually enhance the options available to students, and enhance the intellectual diversity of the marketplace of ideas in universities. But that I would make a certain choice doesn’t make the alternative choice on the university’s part inconceivable or illegitimate.

Finally, if one is using the broader definition of “invidious” to mean “offensive” or “objectionable,” the result is the same: A state may reasonably take the view that it’s offensive or objectionable for public funds, to which taxpayers and students of all religions and sexual orientations contribute, to be spent in any fashion which subsidizes religious or sexual orientation discrimination, even though Mr. French and I might not see it as offensive or objectionable (for instance for the reasons that Mr. French gives.

David French of the Alliance Defense Fund responds further to my posts about Christian Legal Society v. Martinez. I much appreciate David’s thoughtful reactions on this, and I’d like to continue the conversation.

Here’s David’s argument slightly abridged:

By treating this case as a “government benefits” case, I think Eugene is missing a few vital things. First, let’s not forget that this case arises in a university setting, where a very long line of case law holds — among other things — that the university is “peculiarly a marketplace of ideas” that if closed will cause our culture to “stagnate and die.” In fact, it’s hard to think of a single case where the Supreme Court has decided against student free speech or student access to forums — from Healy (student-organization recognition), to Widmar (religious groups’ access to facilities), to Rosenberger (access to funds), to Southworth (in which the court upheld an otherwise-unconstitutional mandatory student-fee scheme in part because it bought the argument that the scheme helped nurture free speech on campus).

The Court has even taken the rather unusual step of excluding (Garcetti, for example) universities from the scope of otherwise speech-restrictive decisions. The following language from Rust v. Sullivan (which upheld the so-called abortion “gag-rule”) is illustrative: “We have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” (Emphasis added.)

With language that sweeping and decisions that consistent, I would say that it’s an open question as to whether the access to facilities by expressive associations could even be considered a “government benefit” as opposed to a “right” in the conventional sense.

Second, I think Eugene dramatically minimizes the impact of Healy. Here we have the one Supreme Court case analyzing student organization recognition, and the access to facilities and other university resources in question was not seen as a denial of benefits but an abridgment of the associational right itself. Let’s go back to the quote that Eugene and I keep throwing at each other:

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.

Of course, the Healy Court did not deal with nondiscrimination policies. Had they decided the case on that basis, there’d be no need for the Court to weigh in on Martinez. However, I think Eugene does glide a bit over the university’s grounds for excluding SDS from campus. Yes, the university denied them because of the group “openly repudiates the college’s dedication to academic freedom.” But how? [Discussion of how SDS chapters at other campuses had been responsible for violent disruptions, and how the local SDS chapter didn't agree to eschew violence, omitted. -EV] What’s the justification for denying free association in this case? Is it anything as compelling as preventing violence and campus shutdowns?

And this brings me to my third major point. The justification is not “protecting students from discrimination on the basis of race, gender, sexual orientation, religion, veteran status, disability, etc. etc. etc.,” because CLS has not mounted a facial challenge to the nondiscrimination policy. The challenge is quite simply to the application of the policy in such a way that it prevents a Christian group from reserving voting membership to those who believe in its statement of faith and seek to conform their behavior to the mandates of Biblical Christianity. Broadly, it’s a challenge to a policy that would prevent any organization from reserving leadership or voting membership to those who believe in the mission of the organization and conduct themselves accordingly.

What conceivable state interest exists in requiring open membership by expressive organizations? At its core, this case is nothing more and nothing less about the state using its nondiscrimination policy (a policy that was in part designed to protect religious expression) to exclude an organization it does not like. I hate to sound like a broken record, but I have to go back once again to Healy: A government actor cannot compel indirectly a result that it is constitutionally prohibited from achieving directly. 408 U.S. at 183.

Here’s where I disagree with David on this:

Continue reading ‘Should Access to Public University Property and Funding Be Treated Differently from Access to Other Public Property and Funding?’ »

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.

One more item about the Christian Legal Society v. Martinez case: Some people argue that applying nondiscrimination conditions to student religious groups (alongside other groups) as a condition of funding violates the underlying purpose of the benefit program. Universities say they fund and provide space for student groups to “facilitat[e] the free and open exchange of ideas by, and among, its students” (I quote here Board of Regents v. Southworth). Given that the effect of the nondiscrimination condition is to limit religious groups’ ability to freely promote the ideas (by raising the risk that the groups won’t be able to limit their officers or voting members to those who share the group’s core ideas), isn’t the condition inconsistent with the purpose of the program (and the argument goes, therefore unconstitutional)?

The answer, I think, is that when the government is subsidizing behavior, it is entitled to try to serve multiple interests. For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocates by private organizations. Yet the government is entitled to serve both that interest and the interest in not requiring taxpayers to subsidize electioneering and lobbying (or at least a substantial amount of lobbying), which is why the government may extend the tax exemption only to donations to groups that don’t electioneer or engage in substantial amounts of lobbying.

Nor is there any need for a very strong, overriding reason for the exclusion, I think; the government is entitled to choose what it subsidizes and what it doesn’t. Likewise, the government can choose to partly subsidize many medical procedures (including ones that are necessary simply for comfort, rather than for preservation of life or prevention of serious injury), but choose to exclude abortions. There’s no need for a very strong, overriding reason for that exclusion, either, because the government can choose to try to serve two interests at once – helping people get medical procedures while making sure that taxpayer money (or taxpayer-purchased property) isn’t used for performing abortions.

Likewise, it seems to me that universities are entitled to provide a subsidy in order to broaden the spectrum of viewpoints advocated on campus by private organizations, while at the same time ensuring that the subsidy ends up benefiting students without regard to race, religion, sexual orientation, and the like (and not just in the aggregate but for each particular group). I think that’s an unwise decision, partly because the second interest does in some measure undermine the first. But it seems to me quite constitutional.

And the answer to what government interest is served here is the same as that given by President Kennedy in supporting Title VI of the Civil Rights Act: That money gathered from taxpayers (or students) without regard to race and the like is to be distributed only to groups that admit all students without regard to race and the like. That interest is legitimate, and therefore constitutionally sufficient when it comes to choosing which groups get government funding, even if I think that elevating it over rival interests is unwise in this context.

David and others have argued that university policies that deny benefits to groups that discriminate based on religion are unconstitutionally based on the groups’ viewpoint, when applied to religious groups. Other groups, the argument goes, are allowed to exclude people who don’t share the group’s ideology: The environmentalist group may exclude anti-environmentalists, and the gun rights group may exclude people who support gun bans. But the Christian group can’t exclude non-Christians, and that’s discriminatory against groups that espouse Christian viewpoints.

But I don’t think that constitutes viewpoint discrimination, or even content discrimination. The no-religious-discrimination condition may have a disparate impact on religious groups – it may burden them much more than it burdens nonreligious groups – but disparate impact is not enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint.

As I argued in my law review article on the freedom of expressive association and government subsidies, the test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.

I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ beliefs, not on the regulated groups’ speech or beliefs.

Now of course the university rule, while applicable to groups without regard to their content or viewpoints, does single out a certain kind of exercise of freedom of association rights, and deny it funding. But in the absence of discrimination based on a speaker’s viewpoint, the selective denial of funding to the exercise of certain constitutional rights is permissible (see my original post): The government may fund many medical procedures but not abortion, may give tax exemptions for donations that go to many kinds of speech but not electioneering, and so on.

That the government may not ban an activity doesn’t mean that it has to include it in its subsidy programs. It just can’t discriminate based on speakers’ viewpoint in awarding subsidies; and, as I argue above, the nondiscrimination rules (if evenhandedly applied) don’t discriminate based on speakers’ viewpoint.

In 2008, Eugene, Andy Koppelman, and I appeared on a Federalist Society panel on “Freedom of Speech v. Antidiscrimination Law.”  It so happens that I was asked to address the question raised in Martinez, whether a public university may ban a  student group from discriminating on the basis of sexual orientation.  My analysis is a bit different than Eugene’s below. Here’s the transcript, which is available at 31 North Carolina Central Law Review 207 (2009), Westlaw 31 NCCLR 207:

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!

A commenter (Tim) on an earlier thread raised an important objection to rules that bar religious discrimination by campus groups (including religious groups):

Imagine that anyone, regardless of religious belief, were allowed to become voting members of the “Christian Legal Society” or the “Muslim Students’ Association” or any other such group. What would stop people who disagreed with the group’s views from joining the group in large numbers, voting out the leadership, and then disbanding the group merely to silence them? Obviously, the students would have no meaningful right to free speech and association if this regime were allowed to stand.

Another commenter, EMB, responded:

I’ve seen this hypothetical argument made several times, but every time I wonder: are there any examples in the real world of this actually happening?

I can’t say how often these things happen, nor am I sure that anyone else can say it, either. But I do know of one case that involved that very fact pattern (though not at a university), and that was litigated all the way to the California Court of Appeal. The case is Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993), in which Scientologists were apparently trying to take over the Cult Awareness Network, which was hostile to Scientology. When they were refused admission, one sued, claiming the denial violated California antidiscrimination law; the court held that antidiscrimination law couldn’t apply here, and based its reasoning partly on CAN’s First Amendment rights to expressive association.

I think the California Court of Appeal reached the right constitutional result as to general bans on discrimination. I also think that, partly for this reason and partly for others, public universities should — as a matter of policy — allow ideological student groups to discriminate based on members’ ideology, and therefore allow religious student groups to discriminate based on members’ religious views. (I think that when it comes to the government as funder and as landlord, this policy is not constitutionally commanded; the government may choose to impose such antidiscrimination rules on student groups that it funds. But that’s a story for another post.)

The case is Christian Legal Society v. Martinez, and it could be an important decision on First Amendment law and government benefits more broadly. Its implications would quite likely also extend beyond on-campus student groups and also apply to tax exemptions and various other such schemes. I’ve written about the question in my Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919 (2006), and also in this post; I’m on the run now, but I hope to blog more about the subject this week.