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A Preliminary Response to Professor Volokh



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I’m about to walk out the door to catch a flight, but Robert called my attention to Professor Volokh’s lengthy post on Christian Legal Society v. Martinez. 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.

This is not the first time Professor Volokh has made this argument, and I’ve responded to him before. I hate to regurgitate prior posts, but in the interest of time, I’ll borrow from my past work to detail 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.



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