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Americans United Misunderstands Free Association on Campus



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Over at the Americans United for the Separation of Church and State (AU) blog, Rob Boston writes about the Ninth Circuit’s recent holding that the Christian Legal Society at Hastings Law School could not limit its voting membership to Christians. Boston draws a straight line between student fees and nondiscrimination clauses, essentially arguing that the case was as simple as “control follows funds:”

A lot of public colleges rely on student fees to fund activities. When I was in college, our school newspaper was funded this way. I edited the paper and welcomed anyone who wanted to work there. It would have been inappropriate for me to tell some students they couldn’t work at the paper – even though their money helped fund the publication – because they were Mormon, gay, black, etc.

Jeremy Tedesco, an attorney with the Alliance Defense Fund (ADF), carped that rulings like this “require religious organizations to include people in their groups who disagree with what the religious groups believe. That’s a violation of the First Amendment, free speech and freedom of religion.”

Wrong as usual, ADF. Had this group been privately funded, it could discriminate all it wanted. But this organization sought funds drawn from a large pool of people, fees that are usually mandatory. In that respect, the money is akin to taxation. The government entity collecting and dispersing the funds has the right – and some might even say an obligation – to ensure that none of the money ends up subsidizing discrimination. (AU reiterated these points in a friend-of-the-court brief we filed in this case.)

There are a few problems with this argument. First (and foremost), there’s no indication that the circuit court actually considered the student-fee structure in its opinion. The ruling itself is simply a one-paragraph statement citing a high-school case, where student-fee structures like those in college did not even exist.

Second, this case was about far more than funding. Facilities access is the most critical aspect of student-organization recognition. Simply put, a campus ministry has trouble existing without access to the campus (empty classrooms for meetings, bulletin-board space for advertisements, table space at student-organization fairs for recruiting, etc.). Access (to varying degrees of severity) is always at issue in student-organization free-association cases. Is it AU’s position that with campus access alone comes the level of control exerted over CLS?  

Third, the Supreme Court has held that student fees are not even considered university funds, but instead a “fund that simply belongs to the students.” As a consequence, student fees can be used for purposes that tax money cannot be used for (such as financing magazines and other forms of expression that explicitly proselytize). If a university is going to impose a student fee and use it to fund student viewpoints, it actually has less control over the money than if it had simply dispensed money derived from general tuition dollars (or state funds).

AU would like for student fees to be treated like tax dollars. AU would like for student fees to be an instrument of government control over expressive organizations. AU would like for campus Christian groups to be forced to open up to non-Christian leaders. (By the way, if AU is for “separation of church and state” how can it support entangling the state in the actual leadership elections and decisions of private religious organizations?) As circuit after circuit weighs in on these issues, a final answer on student-organization recognition and funding will emerge, and I predict that it will not be the answer AU wants. 



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