American Council on Education's Supreme Court Brief Gets It Wrong on 'Martinez'
March 17, 2010
by Azhar Majeed
The American Council on Education (ACE) and a coalition of other higher education organizations filed an amici curiae brief on Monday (.PDF) on behalf of University of California Hastings College of the Law in Christian Legal Society v. Martinez, the upcoming Supreme Court case for which FIRE filed its own amici brief in February with Students for Liberty on behalf of the Christian Legal Society (CLS). Unfortunately, the ACE brief advances a number of arguments for upholding the Ninth Circuit Court of Appeals' ruling in favor of Hastings that are dangerous, misleading, and plain wrong. It also mischaracterizes key arguments made in FIRE's amici brief, which it specifies by name.
While we await oral arguments before the Supreme Court in this case—scheduled for Monday, April 19—I would like to briefly address some of ACE's arguments here, as well as set the record straight on the parts of FIRE's brief to which the ACE brief alludes. Additionally, given the number of important issues and concerns raised by the ACE brief, we intend to respond in greater depth in additional posts in the coming days.
In Martinez, the Ninth Circuit upheld Hastings' decision to forbid its chapter of the Christian Legal Society (CLS) to organize its group around shared religious and cultural beliefs. The Ninth Circuit's ruling permitted Hastings to maintain a nondiscrimination policy mandating that student groups accept "all comers" as voting members, even students who disagree with the group's core beliefs and founding tenets. As FIRE pointed out in our brief, this requirement fundamentally encroaches upon the First Amendment associational rights of expressive student organizations such as CLS, as forced inclusion of voting members holding views contrary to an organization's mission robs it of the ability to control and disseminate an accurate, consistent ideological message. Additionally, we pointed out that the requirement leaves groups with minority viewpoints subject to hostile takeovers by students in the majority (not to mention other distortions of the organization's votes), because those opposed to a particular group's views and mission are potentially able to force their way in and dissolve the group from within. (Indeed, we provided specific evidence that this warning is justified, which I discuss below.) Hostile students would be permitted to do much more than engage in debate with the organization's members during its own meetings; they also would be able to intentionally vote against the expressive mission and purposes of the group. In short, the Ninth Circuit's decision, if upheld by the Supreme Court, carries the potential to wreak havoc on the First Amendment rights of student groups on campuses across the country.
Given the importance of this case and of the rights and principles at stake, it is disappointing that ACE's brief makes a number of specious and short-sighted arguments in favor of affirmance.
First and most dangerously, the brief argues that an institution's decision to compel recognized student organizations to accept all comers as members is an exercise of that institution's academic freedom—specifically, its right to define and control its educational mission. The ACE brief argues:
That different institutions have chosen different approaches to RSO membership simply reflects the fact that each makes its own educational judgments. There is no reason to foreclose such judgments by forcing colleges and universities nationwide to adopt a one-size-fits-all approach to RSO membership. ... The question, instead, should be whether any particular institution's educational judgments are reasonable.The key problem with this argument is that academic freedom has never been defined or accepted in the courts as constituting an all-encompassing institutional right to control all aspects of the educational process and of campus life. Stated differently, the right of an institution to define its educational mission does not give the school carte blanche to pass any and all regulations - particularly where, as here, such regulations infringe upon adult students' speech and association. There is little to the argument that the message disseminated by a student group such as CLS can reasonably be construed as school-sponsored or curricular speech. Rather, as the Supreme Court has already made clear, it is the student group's own speech. See Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 229 (2000) (student groups in a similarly structured program did not speak for the government); Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 834 (1995) (with regard to a similarly structured program, the school is funding students' private speech). As such, the academic freedom and educational judgments of Hastings as an institution apply with considerably less force here, and do not trump CLS's right to expressive association.
That is so not just because of the tests this Court has articulated, see Part II, infra, but because the First Amendment provides colleges and universities breathing room for their educational judgments. "Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." [Citation omitted.]
Even more critically, ACE's argument fails to acknowledge the importance of the associational rights belonging to expressive groups such as CLS. That these are fundamental First Amendment rights subject only to the most compelling of state interests has long been established by such Supreme Court precedents as Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). The ACE brief gives short shrift to these rights and instead takes the approach that institutional academic freedom trumps them in the same way that it would with regard to, say, curricular decisions. This lack of a finer analysis, and ACE's reliance instead on an all-encompassing view of institutional academic freedom, renders their argument weak and unconvincing.
Next, the ACE brief argues that nondiscrimination policies such as Hastings' do not violate the First Amendment because, under the Court's precedents in Healy v. James, 408 U.S. 169 (1972) and Widmar v. Vincent, 454 U.S. 263 (1981), they are reasonable regulations on student conduct:
Healy and Widmar foreclose CLS's First Amendment claims because those cases hold that a student group seeking official recognition enjoys no constitutional right to violate "reasonable school rules governing conduct." Healy, 408 U.S. at 191. Despite CLS's claims to the contrary, nondiscrimination and open-access policies are "school rules governing conduct," and they are reasonable.This argument is plainly wrong because what the ACE dismissively characterizes as "conduct"—the ability of student groups to make belief-based decisions about membership so that each group is able to convey the message it wants to—is in fact expressive association, protected by the First Amendment. While ACE may choose to have an unduly narrow conception of what constitutes student speech on a college campus, ACE and its coalition cannot ignore that the impact of the regulation is substantial and ultimately restricts the ability of students to associate around shared beliefs, a right which falls squarely within the protections of the First Amendment, as the Supreme Court decisions cited above make clear. Further, while nondiscrimination policies may prevent student organizations from engaging in invidious, status-based discrimination—since a prospective member's immutable status (e.g., race, gender, sexual orientation, etc.) does not necessarily determine his or her beliefs--it is fundamentally unreasonable to demand that student groups refrain from belief-based "discrimination" by requiring that a group's voting members and leadership actually believe in the group's core tenets. That's not discrimination; that's the right to expressive association.
By relying on semantics to argue that belief-based membership decisions constitute student conduct and not expressive activity protected by the First Amendment, ACE and its coalition fail to acknowledge the negative impact of nondiscrimination requirements such as Hastings' on campus discussion and dialogue—not to mention the harm suffered by a group when it is denied access to mandatory student activity fees and other benefits associated with registration.
The ACE brief also takes issue with FIRE's amici brief, by name, and contests our brief on two important points. First, ACE argues:
CLS and its amici offer, as one of their central themes, that open-access policies are unwise because such policies "seek[ ] a manufactured ‘diversity' of beliefs within a group at the cost of a true diversity of beliefs among groups." Br. of Amici Curiae Foundation for Individual Right [sic] in Educational [sic] et al. 13 (emphases in original) ("FIRE Br."); see Pet. Br. 50 ("There can be no diversity of viewpoints in a forum if groups are not permitted to form around viewpoints."). This argument relies on spurious factual assumptions. Open-access policies are not about "manufacturing diversity of beliefs"; they are about allowing students who so choose to experience the activities and beliefs of people different from themselves.This argument, while creative, also misses the mark. First, while "allowing students who so choose to experience the activities and beliefs of people different from themselves" may be a commendable goal, it in no way trumps the First Amendment right student groups enjoy to determine their own message, leaders, and voting membership. In other words: it would be a nice outcome, but that doesn't mean you can trample established First Amendment rights to make it so. Moreover, there are ample opportunities on a college campus to exchange views with others who are different from oneself and to engage in rigorous debate and dialogue—opportunities which include, at Hastings, the meetings and events of CLS, which are open to the general public—without having to force oneself into a campus group with which one fundamentally disagrees.
Second, the ACE brief mistakenly argues:
Moreover, open-access rules do not bar groups from "form[ing] around viewpoints"-unless the groups are subjected to "hostile takeover" by those with opposing views. But on that point the briefs of CLS and its amici are long on rhetoric and short on facts. FIRE's brief offers no examples of such hostile takeovers, anywhere in the nation. See FIRE Br. 8-10. Also, university student-affairs officials can be counted on to step in if, as a result of such a takeover attempt, like-minded students are unable to form a group of the students' choice. There is no record evidence to suggest, or any reason to believe, that students [sic] groups like CLS will be hijacked by students hostile to CLS's viewpoint.On the contrary, these concerns are real, not hypothetical, and our amici brief in fact shows this to be the case. As we discuss in the brief, in 2007, a political student organization at Central Michigan University (CMU), the Young Americans for Freedom (YAF), was told by the administration that it had to comply with the university's nondiscrimination policy, leading other CMU students to start a Facebook.com group where students posted messages suggesting ways to destroy the YAF group. One post, for instance, suggested that students "go to their meetings and ... vote eachother [sic] onto the board and dissolve the group." The fact that these students' attempts to take over YAF and dissolve the group did not ultimately come to fruition in that case does not alter the reality that the forced inclusion of students holding opposing views is indeed a bad practice; it does not take a completed hostile takeover to make this clear. If ACE and its coalition were to give our brief a closer read, they would discover that the CMU example, as well as other related examples discussed therein, showcase that the desire of students to take over and dissolve organizations with which they disagree is real.
For these reasons and more, the ACE brief misses the mark on Martinez. I urge readers to give our amici brief a close read and to consider the arguments we make, so that they may have a proper understanding of the rights and principles at stake in this important case. We'll have more on the ACE brief later, so stay tuned.