Reaping What Was Sowed by the Supreme Court in 'Martinez', Ninth Circuit's Decision in 'Alpha Delta' is a Worrying One for Freedom of Association
August 10, 2011
by Azhar Majeed
Last week, Will covered the United States Court of Appeals for the Ninth Circuit's troublesome ruling (PDF) in Alpha Delta v. Reed, which upheld the decision of San Diego State University (SDSU) to deny official recognition to two student groups due to the groups' requirement that members share their religious beliefs. SDSU argued that denial of recognition was justified because the student groups, a Christian fraternity and sorority, violated the university's non-discrimination policy by requiring members to regularly attend church and demonstrate "personal acceptance of Jesus Christ as Savior and Lord" (in the case of the sorority), and to "sincerely want to know Jesus Christ as their Lord and Savior" and sign a "Statement of Faith" declaring similar religious commitments (in the case of the fraternity). The Ninth Circuit found in favor of SDSU on the student groups' First Amendment claims, holding that the denial of official recognition and its attendant benefits did not violate the student groups' freedom of association, despite the groups' protestations that the forced inclusion of members who fundamentally disagreed with their core tenets would water down their message and significantly impair the exercise of their expressive association.
Will has already written a comprehensive discussion and analysis of the Alpha Delta case, so I won't extensively rehash it here. The Ninth Circuit found the university's student organization system to be a "limited public forum" for purposes of First Amendment analysis, and held that SDSU's actions in this case satisfied the legal standards governing restrictions on First Amendment activity in a limited public forum: (1) reasonableness in light of the purposes served by the forum, and (2) viewpoint neutrality. Having passed these requirements, the application of SDSU's non-discrimination policy against the student groups was deemed to be but an "incidental burden" on their associational rights.
From a big-picture perspective, the damage caused by the Alpha Delta ruling goes much further than the instant case and these two student groups. The case essentially reaps what the Supreme Court sowed in last summer's controversial and sharply divided decision in Christian Legal Society v. Martinez, and confirms some of FIRE's worst fears about that decision. It also conflicts with the Seventh Circuit Court of Appeals' well-known 2006 ruling in Christian Legal Society v. Walker, which addressed substantially the same question facing the Ninth Circuit but held that a religious student group was entitled to a preliminary injunction forcing the school to recognize the group.
To put it succinctly, Alpha Delta (and other potential progeny of Martinez) forces religious student groups on university campuses to make the undesirable choice between abandoning or severely compromising their beliefs and simply accepting the status of second-class citizens on campus. Unfortunately, this is what we envisioned last year when, in response to the Supreme Court's ruling, we put together our "Frequently Asked Questions" regarding Martinez. Under the question of "What does FIRE think of the Court's decision?", we wrote, in pertinent part:
The majority opinion takes the bizarre position that belief-based student organizations may not "discriminate" on the basis of belief, ignoring the fact that this kind of "discrimination" is precisely what freedom of association is designed to protect. Per the Court's reasoning in Martinez, belief-based student organizations cannot evaluate students with reference to the very principles that are the reason for their existence when making decisions about leadership, voting membership, and--because a group's statements come from its leaders and members--its message. This regrettable outcome eviscerates freedom of association, rendering it a hollow right.
Martinez also fundamentally misunderstands the purpose of student organizations and the wider nature of campus discourse. Both Justice Ruth Bader Ginsburg's majority opinion and Justice Anthony Kennedy's concurrence presuppose that requiring all student groups to accept any student as a voting member or leader will promote robust discussion and a meaningful exchange of ideas on campus. However, the majority failed to recognize that the forced inclusion of students who disagree with a group's core tenets serves to reduce the diversity of opinion on campus, rather than adding to it, by rendering student groups less effective in espousing a clear, consistent message. By diluting or even outright silencing a student group's particular viewpoint, such forced inclusion robs campuses of the full panoply of ideas held by the student body. In other words, schools that enforce an "all comers" policy are mandating a manufactured "diversity" of beliefs within a group at the cost of a true diversity of beliefs among groups.
Moreover, we added, under "How does FIRE think CLS v. Martinez will impact speech on campus?":
We expect devoutly religious groups--especially evangelical Christian groups--and other belief-based groups holding minority or dissenting viewpoints to be confronted with derecognition. Targeted groups will face a terrible choice: Either relinquish control of the group's core message and allow all students, regardless of belief, the opportunity to obtain voting membership and leadership positions, or leave campus. Those groups that choose to comply will run the risk of takeover, dilution, and other interference. Those groups that refuse will lose the ability to participate as equals in the life of their campus.
It is these very concerns that have come to fruition in Alpha Delta. The majority opinion in Martinez not only misunderstood the importance of diversity of beliefs on campus, it showed far too much comfort with the idea that student groups can effectively disseminate their message on campus and participate in the free exchange of ideas without having the status of an officially recognized group. This ignores that the denial of access to benefits—such as meeting space, student fee funding, university email listservs, and literature distribution tables—places such student organizations at a significant disadvantage compared to recognized student organizations, and that groups espousing disfavored and unpopular viewpoints will therefore be relegated to second-class status at their school. Unfortunately, the Ninth Circuit has demonstrated the same level of comfort with allowing schools to favor certain viewpoints and disfavor others, and students and student organizations within the Circuit's jurisdiction (to say nothing of the diversity of ideas and beliefs on their campuses) will be worse off for it.
In following the Martinez ruling, Alpha Delta also conflicts with the precedent set by the Seventh Circuit in 2006 in Christian Legal Society v. Walker, a case for which FIRE submitted an amicus curiae (friend-of-the-court) brief. In Walker, the Seventh Circuit invalidated the decision of Southern Illinois University's (SIU's) School of Law to revoke official recognition from a student chapter of the Christian Legal Society. The CLS chapter prohibited voting members and leaders from engaging in or approving of premarital sex, adultery, or homosexual sex (though it did allow any person to attend its meetings and activities), prompting the school to declare that these requirements violated SIU's nondiscrimination policy.
In issuing a preliminary injunction ordering SIU to recognize the CLS chapter, the Seventh Circuit declared:
Our next question is whether application of SIU's antidiscrimination policy to force inclusion of those who engage in or affirm homosexual conduct would significantly affect CLS's ability to express its disapproval of homosexual activity.... To ask this question is very nearly to answer it. As we have noted, while voting members and officers of CLS must affirm and abide by the standards of sexual conduct contained in its statement of faith, CLS meetings are open to all. SIU's enforcement of its antidiscrimination policy upon penalty of derecognition can only be understood as intended to induce CLS to alter its membership standards-not merely to allow attendance by nonmembers-in order to maintain recognition. There can be little doubt that requiring CLS to make this change would impair its ability to express disapproval of active homosexuality.
CLS is a faith-based organization. One of its beliefs is that sexual conduct outside of a traditional marriage is immoral. It would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct. CLS's beliefs about sexual morality are among its defining values; forcing it to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist. We have no difficulty concluding that SIU's application of its nondiscrimination policies in this way burdens CLS's ability to express its ideas.
[Citations omitted; emphasis added.]
The Walker decision has been a key point in the arguments for protecting freedom of association on college campuses in the face of attempts at forced inclusion. And while Martinez threw much uncertainty into case law on these issues, it could be distinguished from Walker in that, as we have pointed out numerous times, Martinez involved a specific and narrow set of facts regarding the application of an "all comers" policy against a group's membership requirements, whereas Walker, like Alpha Delta, centered on the enforcement of a university's nondiscrimination policy. (An "all comers" policy, which is very rare on college campuses, requires all student groups to accept all interested students as members, while the application of a nondiscrimination policy requires that student groups not discriminate on the basis of enumerated traits such as race, gender, and sexual orientation. Thus, the latter scenario unduly impacts religious student organizations vis-a-vis other types of groups, whereas the former is more "universal" and less prone to viewpoint-based enforcement.) Now that the Ninth Circuit has countenanced the application of a nondiscrimination policy against a student organization's membership requirements and free association, it has created a direct conflict with the Seventh Circuit and thrown into question the precedential impact of Walker.
The result can only be described as disappointing to FIRE and to any proponent of freedom of association. Hopefully, the other federal circuits will follow Walker rather than the Ninth Circuit and uphold the rights of students to freely associate around shared ideas and beliefs. Or perhaps the Supreme Court will have to take up another such case to resolve the circuit split and clarify its decision in Martinez. We shall see.