KC Johnson on What Comes After 'CLS v. Martinez'
July 12, 2010
On Minding the Campus, FIRE friend and Brooklyn College professor KC Johnson asks an important question: Now that the Supreme Court has decided that an all-comers policy for student group membership is constitutionally acceptable, cui bono? Who benefits from this change? If you have been following FIRE for any length of time, I bet you can guess the answer:
What a shocker. Really, you would think that just once, colleges would mix things up and go to the mat for something that benefits students or faculty members instead of the bloated administrative bureaucracy. You know, just for form's sake.
The "all-comers" policy has satisfied the Supreme Court. But from an educational standpoint, does it make any sense? What purpose is served by a college or university creating an official Democratic club whose membership is open to unabashed defenders of George W. Bush? Or creating an official Jewish students organization that must admit Arab students who deny Israel's right to exist? Not only does such a policy undermine freedom of association, but the resulting organizations are essentially useless.
The arrangement does, however, benefit one group: official student organizations maximize the power of student life bureaucracies, which oversee official student clubs at most campuses. And, as we've seen from instances like the University of Delaware's thought-control initiative, student and residential life offices rarely operate to the overall good of the student body. [Emphasis and link added.]
KC makes another interesting observation:
Kennedy celebrated "the principle that in a university community—and in a law school community specifically—speech is deemed persuasive based on its substance, not the identity of the speaker."
KC has hit on an interesting piece of Justice Kennedy's reasoning here. When it comes to religious speech, I would submit that Justice Kennedy is flat wrong--that, in fact, the persuasiveness of the speech is hugely dependent on the identity and ethos of the speaker. Kennedy is right that the truthfulness of most speech can be divorced from the speaker, and that doing so is generally very desirable in a university community. For instance, if the most notorious liar at a given university explains the evidence for the world's being round or the theory of gravity, his assertions are testable and, if borne out, believable.
However, it is difficult to think of any reason why someone would ever adopt a religious belief based on the word of a person who, for some reason, is not sincere about it. Imagine, if you can, the Reverend Billy Graham trying to persuade people to convert to Islam. Why would his testimony to that effect have any value, when he is known not to believe in that religion himself?
Some religious organizations are open to all comers as a way of attempting to bring new believers to the faith. That is their right. But not every religious organization can be effective that way. A great example would be the Alpha Iota Omega Christian fraternity at UNC-Chapel Hill. The organization exists to spread its Christian message to other fraternities. All of its members are supposed to engage in this very traditional Christian mission of evangelization. How, exactly, can a nonbeliever function effectively in such a group? The answer is that he can't, and if one did insist on being a member, he could only take away from the group's mission and make its expression less believable and less persuasive.
Justice Kennedy is right in that one of the central principles of a university ought to be that speech is deemed persuasive based on its substance rather than on its speaker. But unreflective fealty to that principle (or, more likely, a claim of fealty to that principle in order to serve a different one) should not serve as an excuse to impair the communication of a message that is based on faith rather than strictly on logic or reason. Unfortunately, in CLS v. Martinez, it seems to have done just that.