Reflections on Student Groups and Freedom of Association from ‘Unlearning Liberty’

The New York Times recently reported that colleges across the country are withdrawing recognition from campus Christian student groups that require candidates for leadership positions to subscribe to their Christian beliefs. This trend is taking shape in the wake of the Supreme Court’s decision in the 2010 case Christian Legal Society v. Martinez (PDF). That ruling held that the University of California Hastings College of the Law did not violate the First Amendment when it denied recognition to a Christian student group that required leadership candidates to affirm their belief in “biblical principles of sexual morality.”

Public policy professor Andrew Sabl of the University of California, Los Angeles pushed back against this phenomenon in a recent blog post. As Professor Sabl rightly points out, “It’s not discrimination to say that leaders of a group devoted to believing X should be expected to believe X. That’s not ‘exclusivity’ … it’s freedom of association.”

FIRE President Greg Lukianoff has made this very point in his book, Unlearning Liberty: Campus Censorship and the End of American Debate. Chapter 8 catalogs a number of university policies nationwide that have been squeezing out freedom of association in recent years, including policies like the ones Professor Sabl decries. It also fleshes out the distinction to which the professor alludes—the important difference between discrimination, as we typically think about it, and the refusal to associate with others who don’t share one’s core beliefs:

Usually when we talk about discrimination in the contemporary United States, we mean invidious or illegitimate discrimination on the basis of unchangeable characteristics such as the color of your skin or your gender. There is a strong distinction, however, between excluding someone on the basis of “status”—that is, the immutable state of being of a particular race or ethnicity or gender—and on the basis of belief. The Supreme Court has long recognized that the ability to exclude people on the basis of shared beliefs is part and parcel of what it means to be able to form organizations around shared beliefs … Without the freedom to exclude those who do not share your faith, the freedom to form religious organizations means next to nothing. Forming a group around shared beliefs is the very meaning of freedom of association, a cherished principle of democratic society that the First Amendment protects.

Greg exposes one of the central errors in the Supreme Court’s misguided majority ruling in CLS v. Martinez:

I was stunned when, in June 2010, the Supreme Court handed down its decision in CLS v. Martinez. In a 5-4 ruling that bitterly divided the Court, Justice Ruth Bader Ginsburg’s majority opinion … held that any public university could pass a rule that required all student organizations to accept any students, regardless of whether or not they believed in the tenets of the organization.

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Justice Ginsburg treated recognition of a student group as if it were some sort of special gift the law school bestowed on organizations.

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Previously, the Supreme Court has understood that withholding campus recognition means that, for all intents and purposes, a group is a nonentity on campus.The Court had concluded in earlier cases that to subject a student group to second-class status because of what they believe was an unacceptable violation of First Amendment rights. Forcing a student group to have a secret existence is not an acceptable alternative to official recognition.

Greg also notes the risk that non-selective student groups face of being infiltrated, taken over, and undermined by opponents. Justice Ginsburg waved away this threat as “more hypothetical than real” and posited that in any case, campus organizations might seek to cover up status-based discrimination by disguising it as belief-based selectivity, and distinguishing between the two would be too heavy a burden for college administrations to be legally required to bear. Greg disposes of Justice Ginsburg’s argument in short order:

The distinction between status and belief was readily apparent at Hastings [College of the Law]; in 2003, one of the handful of members of the club … was openly lesbian. I have seen this pattern repeated at Harvard University, Tufts University, and Cornell; in each case, evangelical Christian groups have been happy to have members who acknowledge they may be gay but still subscribe to all the principles of evangelical Christianity. Whatever we may think of religious ideas about sexual orientation, the fact that many devoutly religious citizens are also gay demonstrates that the status of being gay and the belief in orthodox religion are not incompatible. Similarly, a Zionist organization would probably be happy to have a Palestinian member if he agreed with the Zionist movement, just like a gay group would likely welcome an evangelical Christian who disagreed with the Bible’s condemnation of homosexuality. But as the Supreme Court has it, the Zionist group would have to admit not just a pro-Zionist Palestinian but also an anti-Zionist Palestinian who might be joining solely to find out what his enemies are strategizing about.

Greg closes the chapter with a warning: Campus policies that violate freedom of association hobble students’ ability to deal with people who hold different beliefs and exacerbate the country’s cultural and political polarization:

[To]day’s universities are trying to impose a preconceived notion of what good, moral people should believe. They are purposefully building a culture of conformity—an echo chamber in which students learn that there is only one “right way” of thinking, and that expression that deviates from it should be kept between you and your clique. This not only alienates a substantial portion of their students, but also denies other students the practice and understanding of what it means to live in a truly diverse and pluralistic society. We are not training students to be equal members of a multicultural society; we are training them to be soldiers in an endless culture war.

Although the Supreme Court majority decided CLS v. Martinez wrongly, universities should still refrain from exercising the power that Justice Ginsburg and the Martinez majority left in their hands. Indeed, that is why states like Ohio, Virginia, and most recently Oklahoma have passed legislation specifically prohibiting public universities from adopting policies that would forbid belief-based organizations, like religious student organizations, from choosing their own leaders on the basis of their relevant beliefs. In fact, the North Carolina General Assembly is on the verge of passing similar legislation.

As Professor Sabl rightly pointed out in his blog post, it is wrong “to confuse what’s constitutionally permissible with what’s a good idea.” Both his and Greg’s analyses ought to be on college administrators’ summer reading lists this year.