The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The recent UCLA controversy involving the fraternity and sorority Kim Kardashian/Kanye West party reminded me of the Supreme Court's most recent pronouncement on university student speech. In that case, Christian Legal Society v. Martinez (2010), the Court held that universities may require student organizations that get university-provided benefits to accept all would-be members—including ones whose beliefs are at odds with the organization's principles (e.g., if an atheist wants to join the Christian student group, or vice versa). I think that was correct, for reasons I gave in this article. (The article was published several years before the Christian Legal Society decision, so it doesn't cite that decision.) But the result is certainly controversial: The majority consisted just of five Justices, the four liberals plus Justice Kennedy; the four other conservatives dissented.
Yet even the majority made clear that, while reasonable and viewpoint-neutral restrictions on student group membership policies are constitutional, viewpoint-based restrictions on student group speech are unconstitutional:
Although registered student groups must conform their conduct to the Law School's regulation by dropping access barriers, they may express any viewpoint they wish—including a discriminatory one. Today's decision thus continues this Court's tradition of "protect[ing] the freedom to express 'the thought that we hate.'"
So if a group wants to express hostility to homosexuality—or hostility based on race, or sex, or religion, or what have you—it has the right to do that. And that's so even if the group seeks access (on the same terms as other groups) to generally available university property, services, and subsidies. And on this point, the Court was unanimous: The liberal Justices plus Justice Kennedy took this view; the other conservative Justices would have just taken this further, to secure student groups' right to choose their members as well as their right to choose their speech.
The "thought that we hate" phrase, by the way, comes from Justice Holmes's dissent in United States v. Schwimmer (1929), a case involving government discrimination against pacifists. Rosika Schwimmer was a Hungarian immigrant who wanted to become an American citizen, but to do that she would have had to answer "yes" to the question, "If necessary, are you willing to take up arms in defense of this country?" This was a highly hypothetical question, since Schwimmer was a 49-year-old woman at the time, not usually the sort of person subjected to military duty, especially in the 1920s. But Schwimmer said no, because of her pacifism, and her naturalization application was denied.
Justice Holmes dissented, and this part of his dissent has been accepted by the Court in First Amendment cases generally:
Some of [Schwimmer's answers in her naturalization interview] might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.
UPDATE: I added some material to the first paragraph to make clear the connection between this post and the UCLA fraternity/sorority party controversy.