Over at Inside Higher Ed, Scott Jaschik does a nice job covering the implications of the Supreme Court’s cert denial in Truth v. Kent School District. One quote stands out. Speaking in defense of expansive university nondiscrimination statements, Hastings Law School attorney Ethan Schulman said
he found the Christian groups’ positions “dangerous and troubling” in that they could invalidate any anti-bias rules. “If religious organizations can not be required to follow non-discrimination rules, then what is to stop hate groups from seeking university funds to form groups that exclude African American or Jewish or Asian students?”
There’s much to address here. First, when defending university nondiscrimination statements, university lawyers always fight a straw man. Groups like the Christian Legal Society are simply not attempting to invalidate “any” nondiscrimination rules. Blurring the clear distinction between identity and belief, universities argue that allowing Christian groups who have belief-based membership requirements is but the first step on a road that leads straight to the Klan (a group that makes status-based distinctions). This is nonsensical. There is an obvious distinction between status and belief.
For example, there is nothing about a person’s race that is relevant to their environmental views, but an environmentalist group would be crazy to include in its leadership people who, say, celebrated Cleveland’s notorious Cayahogo River fire as a triumph of industry over nature. In other words, when it comes to expression, beliefs matter and race doesn’t. All the Christian groups ask is the ability to maintain a membership and leadership that actually shares the goals and values of the group. Other groups on campus almost always have that ability (for example, the College Democrats could exclude Republicans if they wish), but religious groups do not.
Second, university lawyers always talk about funding as if that is the primary issue. It’s not, and it never has been. The primary issue is access to campus. While universities have different kinds of recognition regulations, they share certain common features — among them, a clear preference (and sometimes exclusive preference) for “recognized” groups to receive access to campus space. At some schools, only recognized groups get a right of access. At others, recognized groups get first choice and all others are given leftovers.
Third, the “funding” that’s at issue in these cases is not university funding but student-fee funds. There is a profound difference. The Supreme Court has decisively held not once, but twice, that student-activity fees must be dispensed on a “viewpoint neutral” basis. Students are forced to pay for groups they may not like (or may even find morally repugnant), but in compensation are permitted to form their own organizations and receive funding from the same pool of money. The university is not dispensing tax dollars. It is dispensing a fund that belongs to the students, and to say that Christian students can’t get access because of their pesky insistence on maintaining a Christian message violates both the letter and spirit of Supreme Court precedent.
In countless legal arguments, speeches, panel discussions, and media interviews, someone always asks me, “What about the Klan?” In fact, I wouldn’t be surprised if a caller asks just that question tomorrow when I discuss the Truth case on the Michael Medved Show. But that’s not the issue, and it’s never been the issue. There is a difference between status and belief.