State Laws Protecting Student Group Pluralism: Answering the Objections
March 29, 2013
Last week, Virginia passed a law guaranteeing the rights of belief-based student groups at Virginia public universities to make belief-based decisions about membership and leadership. This news has prompted objections from those who believe that the law allows for discrimination, particularly against LGBT students. This article in The Huffington Post, for example, contains a few common misconceptions about Virginia's new Student Group Protection Act. I'd like to address those now, because as states continue to consider such laws, we will most likely see them pop up again.
Misconception #1: Laws allowing belief-based decision making for student expressive groups allow those groups to exclude LGBT students.
The Virginia law makes no mention of sexual orientation or any kind of protected class at all. It's short, and it reads:
To the extent allowed by state and federal law:
1. A religious or political student organization may determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines, and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities; and
2. No public institution of higher education that has granted recognition of and access to any student organization or group shall discriminate against any such student organization or group that exercises its rights pursuant to subdivision 1.
In other words, Virginia's Student Group Protection Act says simply that groups of students united by common political or religious views can require that students who wish to join or lead the group share those same beliefs. Ohio's law is similar. So why the idea that it allows the exclusion of gay and lesbian students?
The fundamental error here lies in conflating belief with status. A student's beliefs may change; one may decide over time that he or she agrees more with the Green Party than the Democratic Party, for example. But a student's status—i.e., those characteristics that are with us from birth—is different. "Discriminating" on the basis of belief isn't the same as the invidious, status-based discrimination that civil rights laws are intended to eradicate.
FIRE dealt with this objection in the wake of the 2010 Supreme Court decision in Christian Legal Society v. Martinez, in which the Court determined (erroneously, in FIRE's opinion) that the adoption of an all-comers policy by a public institution did not violate the First Amendment. (It's important to note that the Court did not mandate that schools adopt all-comers policies; it merely held that they are constitutionally acceptable in some circumstances.) As FIRE wrote in our Frequently Asked Questions document about CLS v. Martinez:
There is a difference between making a determination on the basis of an immutable characteristic and making a choice on the basis of changeable personal beliefs and rules of conduct. "Discrimination" on the basis of belief is not the same as invidious discrimination based on status. Excluding individuals because of animus based on immutable characteristics like race or sex is considered by the Court to be fundamentally irrational. The right to exclude members based on status as opposed to belief does not follow from the right to form expressive organizations, because one's skin color or sex does not define one's beliefs. However, the right to exclude people who do not share a common belief central to the group's purpose is fundamental to the right to expressive association.
Laws like those in force in Ohio and now Virginia do not allow student groups to exclude LGBT students from membership or leadership if those students agree with the beliefs of the group. Just as an LGBT group does not have to allow students who condemn same-sex sexual behavior or same-sex marriage to join or lead the group, evangelical Christian groups who believe that sex should only take place within heterosexual marriage do not have to allow those who believe it should take place outside of that context to join or lead their groups.
The same should go, by the way, for any other expressive group. A College Democrats group should not have to allow Republicans to attend meetings of the membership, and vice versa. That's not "discrimination" against Republicans or Democrats; it's simply requiring that members of a group actually agree with the group's core tenets.
A common argument is that all-comers policies pose no threat to expressive groups, because why would anyone want to join a group with which they don't agree? But in the political context, it's easy to see why a Republican might want to join the College Democrats (or vice versa)—to water down the opposing group's message, to change that message, or even to hear the other party's strategy and figure out ways to undermine or oppose it.
This is also a possibility when dealing with single-issue groups that take part in other hotly contested political debates, like the ongoing dispute between the Israelis and Palestinians. Just as all belief-based groups off-campus are free to exclude people who disagree with them from their meetings or leadership, laws protecting the right of student groups to make belief-based decisions help avoid the ugly circumstances that are likely to arise on campus if one such group attempts to undermine another.
Misconception #2: Laws allowing belief-based decision making for student expressive groups mean that colleges will have to fund white supremacist groups like the Ku Klux Klan.
First of all, I want to note that in FIRE's 14-year history, we have never encountered a campus chapter of the Ku Klux Klan. I highly doubt that any exist. I think it's safe to say that the Klan's positions have thoroughly proved to be failures in the marketplace of ideas, both in society at large and on campus.
But even if students did want to form a racial supremacist group that excluded others on the basis of immutable status like skin color or ethnic origin, they would be barred from doing so by campus non-discrimination policies. Again: the new Virginia law does not allow student groups to discriminate on the basis of status.
It's true that a racial supremacist group that somehow agreed not to discriminate based on status would be allowed—not because of Virginia's new law, but rather because of the protection provided to all public university student groups by the First Amendment. The Supreme Court of the United States has made clear that public universities cannot refuse recognition to certain disfavored student groups on the basis of the group's viewpoint. For example, in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 233 (2000), the Court held that "[w]hen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others." And five years earlier, in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 836 (1995), the Court stated that when public universities "cast disapproval on particular viewpoints of its students," they risk "the suppression of free speech and creative inquiry in one of the vital centers for the Nation's intellectual life, its college and university campuses." We don't allow the government to shut down the expression of unpopular viewpoints because we cannot trust the authorities to be able to fairly determine what viewpoints should be allowed to be expressed.
What's perhaps most worrisome about this misconception, though, is the lack of confidence it shows both in Virginia's students and in the uniquely American traditions of pluralism and the free marketplace of ideas. Obviously, racial supremacist groups still exist in America. They have the legal right to do so, and are able to spread their message with little interference from the authorities. Yet somehow, the membership of racial supremacist groups is vanishingly small compared to the population at large. Is there any reason to suspect that this would be different on campuses? One of the benefits of having a free marketplace of ideas is that you don't have to rely on government coercion and force to restrict harmful ideas—people are left to make up their own minds with the benefit of reason.
Misconception #3: Laws allowing belief-based decision making for student expressive groups are intended to allow majorities to discriminate against minorities.
Actually, the exact opposite is the case.
Virginia state senator Creigh Deeds, an opponent of the Student Group Protection Act, made this argument to The Cavalier Daily student newspaper, saying, "Here's the problem: in a democratic republic, a lot of the rules exist to protect the minority... And this bill basically says 'it's alright to discriminate against the minority, however that may be.'" This is wrong on a couple of levels.
First, as explained above, Virginia's new law certainly does not say that you can discriminate in any way, "however that may be." It does not affect any policies banning status-based discrimination.
Second, and more importantly, all-comers policies threaten the rights of groups whose viewpoints are in the minority.
How? Well, popular or majority groups have very little to fear from all-comers policies. For instance, let's say that a campus has a huge College Democrats organization with 500 students while the College Republicans have a small organization with 30 students. Which organization is more powerful and popular? In this hypothetical, it would be the College Democrats. Which one has more to lose if any student can join a group and demand to take part in its activities, even if their intention is not to benefit the group? Obviously, it would be the College Republicans—the minority on this hypothetical campus.
Now imagine that we're back in the 1950s and 60s during the civil rights movement. Civil rights marchers are being thrown in jail, sprayed with high-pressure fire hoses, and suffering police brutality. Popularly elected governors are saying things like "segregation now, segregation tomorrow, segregation forever!" Do we think instituting a policy where the Southern Christian Leadership Conference or the NAACP would have to accept any person as a member, regardless of their beliefs about racial segregation, would be likely to help them advance their causes? It seems highly unlikely. (In fact, the Supreme Court issued powerful decisions recognizing the vital importance of freedom of association for groups espousing minority viewpoints in cases arising from the civil rights movement, like NAACP v. Alabama, 357 U.S. 449 (1958).)
It's true that giving belief-based groups the freedom to have belief-based requirements for membership or leadership allows those groups to exclude those who hold minority views within the group. So how does a pluralistic society deal with this? By allowing those students the freedom to form their own groups with their own beliefs. Author and scholar Jonathan Rauch discusses this at greater length in his video for FIRE, particularly with regard to the advantages of pluralism to the LGBT community.
In our everyday lives, this kind of pluralism is perhaps most apparent with regard to religion. The United States does not have a state church of which every American must be a member or supporter. Instead, we allow any person or group to create their own religious organizations around their own unique beliefs, and we accord each of those organizations—synagogues, churches, mosques, and what have you—equal standing under the law. That's pluralism, and it works.
As the Supreme Court held in Roberts v. United States Jaycees, "There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate." 468 U.S. 609, 623 (1984). And while exclusion based on belief may sometimes be emotionally painful for those who would like to be part of a specific group (even if only to change it), as long as people disagree with one another over core beliefs, there's no real alternative. The history of attempts to force people to subscribe to a specific belief and/or of legally disadvantaging those who don't subscribe to official beliefs is an ugly one.
I hope this blog entry helps to clear up some of the misconceptions about laws allowing belief-based campus groups to make belief-based decisions about membership and leadership. FIRE has been grappling with this issue for some time, and for those interested, I highly recommend our Frequently Asked Questions document about the CLS v. Martinez court case that spurred the growth of all-comers policies, as well as this blog entry from Erica Goldberg dealing with the question of why it is incorrect to view the recognition of student groups that make belief-based decisions as some kind of government subsidy or approval of those decisions.
As a reminder, FIRE has no institutional position on the merits of any religious or political viewpoint other than First Amendment rights and due process (we support them). We have no proverbial dog in the fight over affirmative action, gay marriage, abortion, or any of the other "culture war" issues that dominate the airwaves and produce so many of the First Amendment conflicts we deal with in our work.
Indeed, on the same day we celebrated the passage of the Virginia law protecting freedom of assembly on campus, we publicly slammed a college in New Mexico for censoring a student newspaper sex issue that would probably appall the members of evangelical Christian student groups like the Christian Legal Society.
And since FIRE is staffed by people from across the political spectrum, our employees have vast disagreements on many of these topics—disagreements that keep office water cooler conversation very lively! But regardless of your viewpoint, if you're a faculty member or student on a public campus or a private campus that promises free speech (most do), FIRE will defend your right to express yourself and be treated fairly. That's exactly what we've done since our founding 14 years ago, and that's exactly what we'll continue to do.