This issue has come in a bunch of cases recently, some involving religious discrimination and some involving sexual orientation discrimination; the AP reports that the Eleventh Circuit heard arguments about it today, in the Beta Upsilon Chi v. University of Florida litigation. (The University's lawyer, by the way, is my friend Chris Bartolomucci, who's an extremely sharp fellow.)
I think the two decisions on which the student groups' arguments tend to rest -- Boy Scouts v. Dale, which upheld groups' right to discriminate against prospective members whose status would undermine the groups' message, and Rosenberger v. Rector, which held that public universities can't discriminate based on viewpoint in generally available student group funding programs -- are correct. But I don't think that they, put together, generally give the student groups what they want in these cases. (I set aside the more fact-specific arguments raised by some groups who claim that the university lets some groups discriminate in violation of the university's stated policies but blocks other groups from doing something similar.)
My view, as I've argued in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), is that the government need not subsidize the student groups' right of expressive association, just as it need not subsidize abortion rights, private schooling rights, the right to lobby the government, and the like. Here's a table that illustrates this -- rows 1 and 2 discuss the Court's past holdings, rows 3 and 4 discuss situations that I assume would be easy constitutional cases, and row 5 discusses cases such as the one we're discussing here:
|1. Right to abortion||A state may not ban abortions,||but it need not pay for them with state funds, or allow them to be performed at state-run hospitals||even if it chooses to pay for childbirth.|
|2. Right to free speech||A state may not ban advocacy of a candidate or a legislative proposal,||but it need not subsidize it through the charitable tax exemption||even if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.|
|3. Right not to marry||A state 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.|
|4. Right to privately educate one's children||A state may not ban private education,||but it need not pay for private education,||even if it pays billions for public education.|
|5. Right to discriminate in one's expressive associations||A state generally may not ban expressive groups from discriminating based on religion or sexual orientation in selecting members or officers,||but it need not subsidize those groups,||even if it subsidizes other groups.|
It's true that the government may not engage in (certain kinds of) viewpoint-based subsidies, see Rosenberger v. Rector. But — as I argue in more detail in my Stanford piece — this doesn't stop the government from declining to subsidize speech in content-neutral ways, or even in content-based but viewpoint-neutral ways. And a subsidy that's open only to groups that don't discriminate based on race, religion, sex, and the like in their membership decisions is a permissible viewpoint-neutral subsidy.
True, the nondiscrimination rule reflects the enactors' viewpoint, but all laws, including content-neutral ones, do that. It also has a disparate impact on groups with a certain viewpoint, but again most speech restrictions, including content-neutrals, do that, too. The constitutionally significant point is that it is not triggered by the viewpoints expressed by the groups' speech, but rather by the groups' conduct.
I should say, by the way, that I think these nondiscrimination policies are not a very good idea, and not conducive to genuine diversity of viewpoints and ideas (which is often valuable even in high schools), especially when they apply to religion. After all, most ideological groups are free to open their membership only to people who agree with their ideology (the court gives as examples EarthCorps and the Gay-Straight Alliance), and that makes perfect sense: You want student groups to be effective voices for the ideologies they were organized to espouse, and you don't want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability.
Indeed, religious groups' exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.
Nonetheless, while I think exempting groups this way is good policy, I think it's not a constitutionally mandated policy (and I'm inclined to say it's not mandated by the Equal Access Act, either, though I haven't spent as much time thinking about that). If you're interested in more detail on this, check out the article I cite above.
Thanks to How Appealing for the pointer. Note that this post is drawn from an earlier post that I put up when the issue was last in court.