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Responding to Professor Volokh (The Sequel)



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The battle over Christian Legal Society v. Martinez continues to rage. Eugene Volokh responds to my response

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 HealyHealy 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.

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? Let’s go to the court opinion (emphasis added):

We mention briefly at the outset the setting in 1969-1970. A climate of unrest prevailed on many college campuses in this country. There had been widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson. Some colleges had been shut down altogether, while, at others, files were looted and manuscripts destroyed. SDS chapters on some of those campuses had been a catalytic force during this period.”

Even worse, the group itself would not pledge nonviolence:

Q. How would you respond to issues of violence as other S.D.S. chapters have?

A. Our action would have to be dependent upon each issue.

Q. Would you use any means possible?

A. No I can’t say that; would not know until we know what the issues are.

Q. Could you envision the S.D.S. interrupting a class?

A. Impossible for me to say.

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.

Finally, Eugene, I tried to say hello to you at FIRE’s 10th Anniversary Celebration, but after your speech you were immediately surrounded by a crush of First Amendment groupies. Con-law groupies aren’t quite the same as rock-star groupies — but jovial middle-aged civil libertarians certainly have their own charms.



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