Revisiting freedom of association following recent controversy at Orange Coast College

Last week, the Orange Coast College Republicans announced that they had filed a “formal grievance” against Professor Jessica Alabi, alleging that she had prevented members of the club from attending an “African-American/Women’s round table discussion in the Multicultural Center” in March.

Among other demands, the College Republicans have asked that Alabi be investigated and, if she is found to have “discriminated against students on the basis of their ideological viewpoint and party affiliation,” that she be suspended. The College Fix reports that Orange Coast College President Dennis Harkins, in an email to colleagues sent shortly after the incident, expressed concern that “Dr. Alabi may be overstepping her authority unless the student’s behavior was disruptive to the AA Women’s round table discussion group’s activities.”

If the roundtable discussion was open to the public, and Alabi barred students from attending because of their political views or membership in a partisan club, we have a problem. But what if the roundtable was a “private, invitation-only event,” as Rob Schneiderman, president of the Coast Federation of Educators, told The Los Angeles Times? Would barring the College Republicans because of their political views present an issue in that circumstance?

According to traditional precepts of freedom of association, no. A private event is just that — private. If a discussion group’s organizers want to restrict invitations to those of a certain belief or political affiliation, it’s their right to do so. After all, “freedom of association also plainly presupposes a freedom not to associate,” as the Supreme Court observed in 1984’s Roberts v. United States Jaycees. In that case, the Court found that the right to exclude may only be infringed in service of “compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

According to a more recent Supreme Court decision, however, that seemingly high bar is not as protective of free association on campus as one might expect. In 2010’s Christian Legal Society v. Martinez, the Court held that a public law school’s so-called “all comers” policy — requiring recognized student organizations to “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs” — did not violate the First Amendment. As FIRE pointed out in a friend-of-the-court brief, allowing this policy to stand effectively “forces Christian student groups to accept avowed atheists as voting members, Muslim student groups to accept evangelical Christians, Jewish groups to accept anti-Semites, liberal groups to accept conservatives, and so forth.” Writing for the 5–4 majority, Justice Ruth Bader Ginsburg dismissed this threat, deeming these possibilities “more hypothetical than real.”

But Alabi and participants in the roundtable discussion appear to have found themselves faced with a variant of this precise dilemma, illustrating the tension the Court waved away in Martinez. The discussion group seems to have wanted to limit participation on the basis of  viewpoint, a classic exercise of associational rights; under Martinez, Orange Coast College may lawfully institute a rule prohibiting it from doing so.

FIRE continues to believe that the Supreme Court reached the wrong conclusion in the Martinez case. Members of any and all belief-based student organizations should enjoy the right to limit group participation to peers who share those views without foregoing official recognition. While we will continue to monitor this particular situation, we remind both the College Republicans and those who seek to exclude them that freedom of association, properly understood, must protect everyone’s right to join with those of like mind and shared interests, whether that’s voluntarily forming a private “safe space” or prayer group, discussing conservative political action or intersectionality.