Kentucky’s controversial ‘Charlie Brown’ bill has two provisions worth celebrating

Kentucky Senate Bill 17, which was signed into law Thursday by Gov. Matt Bevin despite criticism from some civil rights groups, has two provisions that increase the individual liberty of college students.

The vast majority of the changes enacted by SB 17 are focused on religious expression in public schools and colleges; some observers have called it “the Charlie Brown law” because, reportedly, the motivation behind the bill was a school’s decision to omit the Bible verse from a performance of “A Charlie Brown Christmas.” Accordingly, religious speech and the Bible figure prominently in the enacted text of the bill. FIRE has no position on these provisions.

At the very end of the bill, however, are a few provisions that FIRE wholeheartedly supports, and we would be remiss not to highlight them.

The first is a provision that prevents public postsecondary institutions from discriminating against a religious or political student group on the basis of its “internal affairs,” including how it selects leaders and members. This provision is designed to prohibit institutions from enacting “all comers” policies, which would require groups to admit members with ideological viewpoints in opposition to their own.

This provision protects the associational rights that were endangered when the Supreme Court handed down Christian Legal Society v. Martinez in 2010. Martinez permits postsecondary institutions to require groups funded out of student activity fees to accept all students, even those with viewpoints ideologically at odds with the stated purpose of the group. As we wrote in our FAQ about Martinez:

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.

While some have characterized this part of SB 17 as anti-LGBTQ, that description ignores that the language, as written, also prevents ideological opponents of LGBTQ-friendly groups from undermining their efforts by insisting on membership. It also ignores the very real effect of these “all comers” policies, which has been to deny recognition of student groups with any religious or ideological basis.

“All comers” policies burden the freedom of conscience and association of all students, regardless of ideology, in the name of ensuring access to groups that cease to exist in light of the policies. These policies prioritize diversity within organizations over diversity between organizations. That places too big a burden on liberty for too little return. FIRE opposes these policies and will continue to do so.

The second praiseworthy provision tucked into the end of SB 17 is a variation on our own model legislation against free speech zones, the Campus Free Expression Act, or CAFE Act, as we call it. Kentucky law now requires that speech restrictions be narrowly tailored to serve a compelling government interest, content-neutral, and limited in a way to provide ample alternative means of communication.

In FIRE’s most recent Spotlight on Speech Codes report, one in 10 colleges surveyed still maintained a “free speech zone” — that is, an area of campus designated as being the space where one actually possesses a right to free expression. While that number is down from the one in six colleges we saw with these zones in 2013, it is still unacceptably high considering such policies are inconsistent with the First Amendment.

Kentucky is now the fourth state to enact a statutory ban on free speech zones, joining Missouri, Virginia, and Arizona. We hope other states will soon follow.

Legislators interested in sponsoring bills to protect speech or association rights on campus can contact FIRE’s legislative team for draft legislation.