The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In November, the Rutgers Law-Camden Student Bar Association (SBA) adopted a constitutional amendment regarding student organizations. First, all members of the executive board must complete "the SBA's provided diversity & inclusion and cultural competency training." Second, all organizations that receive more than $250 in funding, "must plan at least one (1) event that addresses their chosen topics through the lens of Critical Race Theory, diversity and inclusion, or cultural competency."
Fortunately, Nick DeBenedetto, the Federalist Society Chapter President, reached out to FIRE. I've known Nick since he was a 1L. He has hosted me for several events, and always worked hard to promote his chapter in a hostile political climate. We are fortunate that Nick is on campus. His actions were prudent.
On May 17, Zachary Greenberg from FIRE wrote a demand letter to the Rutgers administration. (Yes, the same Zachary Greenberg who successfully challenged Pennsylvania ABA Rule 8.4(g)). The letter argued that the SBA policy imposes an unconstitutional form of viewpoint discrimination:
Like the ban on funding a student group because it "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality" struck down in Rosenberger, the SBA's policy similarly uses ideological criteria to limit funding for student groups. As explained in Rosenberger and Southworth, this viewpoint-discriminatory condition is antithetical to the First Amendment's requirement of viewpoint neutrality when public universities distribute student activity fees to their student groups. The First Amendment deficiencies of this requirement are not alleviated by the SBA's allowance that groups may choose their own "topics" for discussion through this lens. The viewpoint-discriminatory nature arises from the "lens" itself because the requirement cannot be satisfied by events critical of the perspective offered by, for example, Critical Race Theory. Moreover, there are no objective criteria against which student organizations—or, more importantly, the SBA—can evaluate a discussion in order to determine whether it sufficiently adopts the "lens" of "diversity and inclusion, or cultural competency." The SBA may not condition student group funding on such a requirement.
Greenberg also explained that the SBA policy compels student organizations to speak on a specific topic from a specific viewpoint.
The SBA's mandate puts student organizations in the unenviable position of deciding either to falsely affirm their belief in an ideological proposition with which they disagree or on which they simply prefer to remain silent, or to forgo accessing university resources. This amounts to compelled speech in violation of the First Amendment. . . .
Student groups like the Federalist Society, which may seek to host only events featuring topics outside the lens chosen by the SBA, are forced to choose between their institutional beliefs and university funding. The imposition of this choice amounts to compelled speech. It requires groups to declare certain political beliefs—beliefs that may run afoul of their institutional mission—in order to access greater university funding for their activities. While the SBA can exhort groups to host such events, it may not shut off funds to those who refuse to do so.
CRT is an ideology. Diversity and inclusion are political concepts. These orthodoxes are contestable. People can and should be able to criticize these doctrine without being tarred as white supremacists. Last week, I was on a panel in which another professor said my method of measuring time was "white supremacist." Yes, we are through the looking glass. Words no longer have any meaning.
FIRE gave Rutgers 10 days to abandon the policy. And on May 23, the SBA rescinded the amendment. The SBA co-presidents explained their position:
Members of our present and future SBA Executive-Board, including Presidents Elena Sassaman, Ashley Zimmerman, and Diversity and Inclusion Representatives Yusef Shafiq and Basma Qazi, met with administration to address the letter and to discuss alternatives. Unfortunately, due to the strict deadline and the constitutional issues presented, the solutions discussed were not feasible and therefore, we felt that the best course of action at this time was to remove the contested language from the SBA Constitution entirely.
We hate the idea of backing down, just because the "other guys" say so, and we hate that we have to factor in those that oppose measures to foster diversity and inclusion, we do. We think-- and we hope, we can still create change, still fight for what is right, and pass this amendment, or something similar again. But right now, we know that if we dig our heels in now, this way, we run the risk of never being able to accomplish what we set out to do.
The "other guys"?! I shudder to think what these students are learning about the First Amendment. The First Amendment is most valuable to protect minority speech. And minority speech does not always mean speech of racial minorities. On college campus, criticism of CRT is minority speech. Yet, the SBA would see fit to compel student organizations to accept this ideology.
I am grateful the SBA relented at this state institution. But private colleges, that are not bound by the First Amendment could impose such policies.
Generally, Federalist Society chapters receive the overwhelming majority of their funding from the national organization. $250 is barely enough to buy pizza for 30 people. In the future, I suspect that FedSoc chapters will simply decline to accept SBA money. Of course, the SBA adopted this policy to cow FedSoc into espousing CRT. The "other guys" cannot dissent. The next step will be to force all SBA-approved organizations to host CRT events. The future of free speech on campus gets bleaker and bleaker.