Private Free Speech or Official Discrimination?

Yesterday the Supreme Court heard the Christian Legal Society's challenge to an anti-discrimination policy that prevents the socially conservative student group from being officially recognized by Hastings College of Law in San Francisco. The society says voting members must follow traditional Christian teachings, which include prohibition of homosexual behavior and premarital sex. The school, which is part of the state university system, says recognizing the society, which would give it access to campus facilities and a share of student acivity fees, would make the administration complicit in illegal discrimination based on sexual preference.

Two Supreme Court precedents suggest otherwise: A 1993 ruling said that a New York school district would not run afoul of the Establishment Clause by making school space available after hours to a Christian group on the same terms as other groups and that such equal treatment was in fact required by the First Amedment's free speech guarantee. Likewise, a 1995 decision said the University of Virginia had to give a Christian student newspaper the same printing subsidies that were available to secular student publications. In both cases, the Supreme Court held that the messages communicated by the religious groups constituted private speech.

Last year the U.S. Court of Appeals for the 9th Circuit nevertheless rejected the Christian Legal Society's challenge to the Hastings policy. In 2006, by contrast, the U.S. Court of Appeals for the 7th Circuit sided with CLS in a similar dispute involving Southern Illinois University's law school. In yesterday's oral arguments, Stanford University law professor Michael McConnell, representing the CLS chapter at Hastings, argued that the law school's ban on discrimination by recognized student groups is "a frontal assault on freedom of association," saying, "If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study." Furthermore, he said, an NAACP chapter would have to accept "a racist skinhead." McConnell was not so keen to defend the right of racist skinheads to exclude blacks, saying (in response to a question from Justice Sonia Sotomayor) that CLS is arguing only that student groups should be allowed to discriminate based on belief, not based on race.

Justice Antonin Scalia made his view pretty clear, saying, "To require this Christian society to allow atheists not just to join but to conduct Bible classes...that's crazy." Justice Samuel Alito raised a hypothetical favorable to CLS: "50 students who hate Muslims show up and they want to take over that [Muslim] group." In that case, said the law school's lawyer, the original members could "rejoin and form another group." So "if hostile members take over," said Alito, "former members of CLS can form CLS 2?"

The law school says such concerns are purely theoretical. But the possibility of subversion by hostile nonbelievers is worrisome enough that CLS has attracted support from a variety of religious groups as well as defenders of civil liberties such as the Cato Institute and the Foundation for Individual Rights in Education. The ACLU is siding with Hastings.

The oral argument transcript is here (PDF). SCOTUS Wiki has briefs here.

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  • The Libertarian Guy||

    The ACLU is siding with Hastings.

    In other news... water is wet, a lion will kill your ass dead, and Paul Krugman is a clueless prick.

  • Chony||

    Racist!

  • Acronymist||

    That's why they're known as the Anti-Christian Litigation Union.

  • Horde4Lyfe||

    LAWL TLG!

  • ||

    Have to say I'm actually with the ACLU on this one.

    The first question is: where does the Constitutional right to start and join an officially recognized university club derive from? The members certainly have the freedom of association - the university could not prevent them from meeting, holding prayer services and speaking out on issues, but why are they entitled to official university recognition? If someone wanted to start the Neo-Nazi Skinhead Legal Society, where do they have a Constitutional right to get official recognition as a legitimate organization from a law school? What about the officially recognized Ku Klux Klan Legal Society for the Reinstatement of Slavery?

    Look, I'd be at the front of the line defending the rights of students to hold and express pretty much whatever views they believe, but freedom of association does not require official recognition (and funding) from a separate entity, be they government or not.

    Also, out of curiosity, how much of Hasting's funding is derived from tax dollars?

  • Jorgen||

    Agreed. I think it's reasonable to demand of organizations accepting university funding that they comply with university bans on discrimination. If this group was taken over by a bunch of hostile homosexuals, they could start a new group without university funding and discriminate to their heart's content. In most cases, though, I find university funding for student groups to be an obnoxious waste of money.

  • robc||

    How about a christian college that accepts government backed loans?

  • SIV||

    Also, out of curiosity, how much of Hasting's funding is derived from tax dollars?

    Nearly all of it.

    The school, which is part of the state university system

  • ||

    Well - tuition is still paid (and there is also an endowment and private scholarships), so while I'm sure there's a proportion that is taxpayer funded, but probably not "nearly all of it."

  • ||

    Not all that relevant a question. The recoginized student organizations are funded by mandatory student fees. So, what's going on right now is that groups who oppose the CLS mission are being funded by Christian students. The Christian students, however, are being denied access to the same funds. No one is being denied any rights by not being qualified to lead a private group in a speech forum created by the school. CLS' rights are obviously being violated when they are excluded from the forum they are forced to fund by their mandatory fees.

  • MJ||

    If the school accepts groups also based on religious or quasi-religious beliefs and are allocating funds to those groups, then there's an issue. If the school is seen as an arm of the State then the State is picking and choosing which organizations are established and funded based on an approved set of beliefs.

  • People Power Hour||

    Personally I'm against the idea because if someone believes in mythology as a way of life, they don't deserve squat from rational folk....

  • robc||

    I think this is a tricky one. Easiest way to decide it - separation of school and state.

    Problem solved. I doubt the SCOTUS will choose that path though.

    This is the same kind of issue that came up due to private schools accepting government funds and will come up with vouchers (you see it here sometimes where people say they dont want vouchers being used at christian and/or muslim schools).

  • ||

    Such a simple and logical solution, of course, it will never be considered.

  • robc||

    It solves about 99% of all school related issues that come up.

  • ||

    It's really not that tricky.

    The question is simplified to "does anyone have a constitutional right to receive official organizational recognition and potentially taxpayer-provided funding from another entity?"

    The question is clearly no, whether the entity is a state run/funded school (no one has the right to taxpayer funding and government recognition for their discriminatory organization) or a privately run school (where freedom of association explicitly permits discrimination against various viewpoints.)

    Those who think otherwise would inherently believe that freedom of association includes the right to involuntary subsidization and governmental legitimization of every possible organization, from ACORN to the Ku Klux Klan.

  • ||

    Exactly, there is no constitutional guarantee to government(taxpayers') money, contrary to what many in this country believe. Also, when you saddle up to that teat you gotta suck by the rules of the cow.

    fra la la laaa...by the rules of the cow...shoop shoop

  • robc||

    Not only is there no guarantee, there is no clause that allows the federal government to fund schools at all.

    And yet....

  • Turnkey||

    I'm thinking the school deserves to win, its not like a local church won't backroll the club.

    That said, if they lose you could always start a overtly racist club. You could even claim it was part of a religion / subsect.

  • robc||

    I ask you the same question I asked Jorgen: Can a christian college by forced to enroll homosexual students if they also accept government backed loans?

  • ||

    Why wouldn't a christian college admit homosexual students?

  • robc||

    Because its a violation of Christian tenets?

    Many would accept them. Some wouldnt. Heck, the US military wont accept openly homosexual soldiers.

  • ||

    A lot of things violate christian tenets, I just wonder why homosexuality is so special?

  • robc||

    I just picked it out because it was used in the story. I could have gone with premarital sex instead. Which, IIRC, BYU has a rule against.

  • robc||

  • robc||

  • Rhywun||

    Wow, that's... surreal. Especially given the prominent beard on the statue that appears on every page.

  • robc||

    Especially given the prominent beard on the statue that appears on every page.

    2 answers:

    1. He filled out the proper paperwork.

    2. Beards are for closers!

  • ||

    It's a good question - for instance, government-backed loans and grants go to single-sex private schools all the time. However, if a college came out tomorrow and decided they were not going to admit black people, I don't doubt the government would take action to cut off grants and loans to students at that school. It's the eternal conflict of merging the public and private and the many problems that creates.

    I would argue any private organization that wishes to discriminate against people of any race, sexuality, religion, gender, physical handicap, etc. should be completely privately funded and pay the consequences (or, maybe in their eyes, reap the benefits) of that decision.

  • robc||

    This was discussed back in the day. This was a fear of many of the private schools, that government restrictions would come with the money. In many ways, many of them regret the decision to ever accept government money.

    Personally, it seems to me its easier to just not fund ANY SCHOOL WHATSOEVER.

  • ||

    I'm not going to take it that far, because, like Adam Smith and Thomas Paine, I do support the concept of public schools as a mechanism to make society more meritocratic and break cycles of poverty (in no way does this mean I endorse public schools in their current form). Since cycles of poverty tend to originate from bad government policies, I see public schools (in theory) as the only possible corrective. I beat this like a dead horse on this site, but rampant economic and social inequality is the enemy of liberty because it gives statists an easy argument and a large audience for massive interventionism and the welfare state.

    The ROI for public schools *if they were radically reformed* could be very high from a utilitarian and even a libertarian perspective - it is better to have highly trained workers that could attain self-reliance than to have a permanent underclass of low-skilled laborers who would support and elect politicians promising them permanent government dependency.

    I do believe any private entity granted government money should not be allowed to discriminate on any feature other than merit and qualification.

  • robc||

    I am more willing to support public education than public schools. By which I mean vouchers. To anywhere. The schools need to be left alone for it to work.

  • ||

    But doesn't that just enable the conflict we've been discussing this whole time caused by merging the public and the private? I'd prefer a public school system where every public school operates like a secular private school and parents can send their kids to any school in the entire district. Of course there would have to be "qualifications" to get into the most desirable schools (which would end up overcrowded and likely see a drop in quality). Meanwhile, good teachers could get bonuses to move to the weakest schools in the system and improve those. As long as there is no federal interference, this would be the ideal public school system and would remove the perpetuation of poverty cycles caused by monopolies based upon property taxes.

  • robc||

    But doesn't that just enable the conflict we've been discussing this whole time

    Hence:

    The schools need to be left alone for it to work.

    Funding the voucher DOES NOT MAKE THE SCHOOL QUASI-PUBLIC.

    The state is funding the student, not the school. That is the distinction, in that case, that needs to be made.

  • robc||

    It's a good question - for instance, government-backed loans and grants go to single-sex private schools all the time.

    And VMI got sued into coedness. Never seems to happen the other way around.

  • Michael Ejercito||

    And VMI got sued into coedness. Never seems to happen the other way around.


    The reason for VMI's gender integration was that the state of Virginia did not provide a separate and equal institution for women.

  • IceTrey||

    Easy solution. Don't let any student organization use college facilities and for sure don't give them any damn money. Just tell them all to shut up and go study, which is what they should be doing anyway.

  • Jamie Kelly||

    Blah fuckin' blah. The state mix of religion/education/values leads to yet ANOTHER fucking court case that tries to find some solution in what is another impossible dilemma.
    Fucking blah.
    The onus, from my view, is on LIBERALS to give up their lofty notions of "publicly funded" education.
    Until that happens, fuck you, liberals. Fuck you all right in the fat fucking ass.

  • daleandersen||

    Why are there state universities anyway? Privatize the motherfuckers!

  • MJ||

    If the School is funding other religious or quasi-religious organizations who are willing to comply with the policy, then the school arguably is running afoul of the establishment clause by refusing to recognize an organzation whose beliefs compel them not to comply. The establishment clause is less about the state not funding religion, then the state not favoring one set of beliefs over others.

  • ||

    Equal protection means just that. People are absolutely correct to say that the state of California does not owe people support of their private organizations. But, if the State starts giving support, it has to give out that support equally. You can't say group A gets our support but group B doesn't because we don't like its views.

    There are some limits to that. If the group wanted to use the facility to break the law for example, the state wouldn't owe it support. Or if the group had nothing to do with the purpose of the institution. But in this case if Hastings is going to let law students form their own organizations and provide state sponsored support for those organization, every organization (the Wiccas, the gays, the communists, and (gasp) the Christians) have to all be treated the same. You cannot as a state say that only those who hold politically correct views have a right to state support.

  • ||

    Nobody has a "right" to state support or organizational recognition. Equal protection under the law applies to individuals, not to groups. If this state run school as a policy chooses to support non-discriminatory organizations but not discriminatory ones, there is no violation of rights here. Nothing is preventing the students from forming their own organization - so I don't see exactly which constitutional freedom is being violated here.

  • ||

    You are just dead wrong. You say can say no to everyone. But you cannot say yes to some and no to others because you don't like their political views. The Constitutional freedom is the right to free speech and association. Everyone should have the same access to government support, whatever that may be, regardless of their political views.

    This is no different than the government saying we are only going to recognize the College Republicans but not the College Democrats because the Republicans are in power. The Democratic students have just as much of a right to form an organization as the Republicans do. And you can't provide support and discriminate against the other.

    Or to give another example, if equal protection doesn't apply to individuals in groups, then the college could say that they will not sanction any group that contains more than 10% minority membership or any group that is based on ethnic race or identity.

  • ||

    So by your definition of "equal protection" ACORN has the constitutional right to receive equal tax dollars if we give tax dollars to other organizations doing similar work?

    Also, wouldn't a college thus be forced by the Constitution to fund and legitimize a U of California Nazi Party or Ku Klux Klan Klub?

    How is the freedom to form an association of one's choice impeded by a lack of official legitimacy and funding? It simply isn't. The granting of government legitimacy and funding to other organizations does not take away your freedom of association or your freedom of speech. The third parties receive little to no funding from the government unlike the major parties and might not qualify for the ballot, but that does not mean they don't have the right to association and speech. That doesn't make the treatment by the major parties right, but it is still theoretically Constitutional and not a violation of equal protections.

    Under the First Amendment, all groups have some negative rights (even corporations, libs) because the wording says "no law" and does not limit their protections to individuals. But you (and the Christian Legal Society) are inventing extra positive rights for groups and misinterpreting the equal protections clause, which only applies to individuals.

  • MJ||

    "How is the freedom to form an association of one's choice impeded by a lack of official legitimacy and funding? It simply isn't."

    How is one church harmed if the government chooses fund and support another? It is the heart of the reason for the establishment clause. A government entity needs a hell of a reason to impose rules that violate an organization's moral and ethical values.

  • Hobo Chang Ba||

    You're asking the inverse of my question: How does not funding and not giving a church official state recognition "violate (that) organization's moral and ethical values?" I've already said repeatedly that government funding of a discriminatory organization (which a church is because religion is a protected right), is a violation of the equal protections for individuals as taxpayers.

    Individuals have codified equal protections. Groups as entities do not (although they do have some negative rights). We can agree 100% that government should ideally fund no group, but the government funding a non-discriminatory group does not necessarily violate the equal protection clause (even if it should not happen) unlike funding an explicitly discriminatory group.

    Moreover, your argument would be more compelling if there was an equivalent Muslim Legal Society that was recognized/funded by Hastings and discriminatory, but as far as I know that is not the case here.

  • ||

    The question is simplified to "does anyone have a constitutional right to receive official organizational recognition and potentially taxpayer-provided funding from another entity?"

    Perhaps an alternative simple question is:

    "Does a government organization dispensing taxpayer funds have the right to selectively deny those funds to organizations that otherwise qualify, based solely on their beliefs?"

    Here's a hypothetical for you:

    The government, in the name of promoting voter participation in elections, starts a government-funded get-out-the-vote program. It then grants or denies funding organizations based on their political views.

    Happy with that outcome?

  • ||

    I think we're all in agreement that the problem is government funding private things. All I'm saying is that groups have no inherent rights to equal protection (unlike individuals) but they do have inherent negative rights.

    The outcome is irrelevant and subjective. 99% people would be perfectly happy with the government refusing funding for a Ku Klux Klan "get out the vote" effort, and 99% of people would be unhappy if the government ONLY gave the KKK "get out the vote" funding.

    The problem with your and John's logic is that once you establish that every organization has equal right to proportional funding and recognition if any organization gets funding regardless of how discriminatory that organization is, you are essentially saying that it is their right to receive funding from taxpayers that organization would discriminate against. Since equal protection does apply to individuals, private organizations taking involuntary taxpayer dollars must by extension be required to be non-discriminatory in the use of those dollars.

    Or does the (non-existent) equal protection for groups override equal protection for individuals?

  • Cliché Bandit||

    OK, I said I wouldn't do it again but damn...here we go:

    does anyone have a constitutional right


    THERE IS NO SUCH THING AS A CONSTITUTIONAL RIGHT!!!! This is such an important point I can't stress it enough. That piece of papaer does not grant, create, generate, or otherwise bring into existence ANY RIGTHS WHATSOEVER. It ONLY grants privledges to government and restricts what government may do.

    Rights are inherent, hence I don't need an amendment to the constitution to piss on my own fence, walk my dog on my property, eat jujubees, or an infinite number of other things.

    MY AX! Grinding it needs

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