Seattle Law School mum on whether student government can oust student groups over views

The Seattle University School of Law’s chapter of the Federalist Society faced a tough decision earlier this year when students called on the club to denounce former Federalist Society members, Sens. Ted Cruz and Josh Hawley, for objecting to the certification of the 2020 Presidential Election.

When the FedSoc chapter refused to denounce the senators, citing the national organization’s policy to not “take positions on legal or political issues or engage in other forms in political advocacy,” other law students called for the club to lose its recognition as an SU Law student organization. When one complained to the law school, Kristin DiBiase, SU Law’s associate dean for student affairs, abdicated its authority, allowing the Student Bar Association, which is the law school’s student government, to decide whether FedSoc’s recognition should be revoked.

On April 2, FIRE wrote to DiBiase, calling on SU Law to reaffirm that it will protect students’ associational rights by clarifying that the SBA cannot revoke recognition based on a group’s viewpoint or refusal to engage in compelled speech, as doing so would violate the law school’s institutional commitments to students’ freedom of expression.

Following the Jan. 6 protests and riots at the U.S. Capitol, an SU Law student reached out to the school’s dean to “start a conversation” about the FedSoc chapter, arguing that the university could not support diversity efforts in the legal system while hosting the club and allowing it to put on events. In response, DiBiase said she found “the desire to take action against a student organization in these circumstances troubling.”

At this point, DiBiase could have explained that, as an institution, the law school could not grant the students’ requests, whether she agreed with them or not, because the law school is committed to freedom of expression, which means the recognition and funding of student organizations must be conducted on a viewpoint-neutral basis. Allowing students to revoke FedSoc’s recognition because they wouldn’t denounce those with whom they may agree violates the commitment that the law school will not discriminate against student organizations based on their opinions.

Instead, DiBiase deferred the decision to the SBA, saying “the decision on your request is not mine to make” and then forwarding the request to the SBA.

The SBA, in turn, deferred to its Judicial Board. But no decision would be forthcoming, as the complainant decided that he wouldn’t currently pursue the complaint, but instead  wanted to “put [Fed Soc chapter president] Afton Gregson and other Fed Soc members on notice” that “further action will be pursued next semester.” He also wrote that he was working with other students to require as a condition of recognition all student organizations to “make a formal commitment to condemning white supremacy, anti blackness, homophobia, transphobia, xenophobia, racism, sexism, and ableism.” 

Although this proposal has not yet materialized, FIRE often sees student proposals that would, if eventually carried out, threaten expressive rights. This situation is particularly concerning because even after being asked to make clear that this policy will not be permitted by the law school both by the FedSoc chapter and by FIRE, SU Law has continued to ignore the threat to students’ associational and expressive rights.

FIRE calls on SU Law to make clear that students lack the authority to make decisions that forestall the university’s commitments to free expression, and that it will not allow students to compel speech or infringe on other students’ associational rights.

In indicating that the SBA could, in theory or in fact, revoke FedSoc’s recognition based on its viewpoint, DiBiase appeared to have endorsed a broader range of SBA authority than the law school legally could extend to its student government. FIRE’s April 2 letter makes clear that the law school may not delegate authority to students to infringe on other students’ associational rights nor enact a requirement that student groups affirm certain viewpoints as a condition for recognition. Although SU Law is not a public university bound by the First Amendment, it is bound by its voluntary commitments to students’ expressive rights. 

FIRE did not receive a response to our first letter, and we wrote SU Law again on April 23, reiterating that if the university delegates authority to students to precondition recognition on the affirmation of certain ideologies, then the school is contravening its promises that it will protect students’ expressive rights. We did not receive a response to our second letter by our April 28 deadline.

Having tried to solve this privately with the university and receiving no response, FIRE is disappointed that DiBiase declined the opportunity to clarify the situation and head off future threats to FedSoc. The ramifications of the situation at SU Law extend beyond the recognition of one chapter of one student group.

If SU Law gives students the authority to discriminate against other students based on viewpoint once, then it may do it again, effectively forcing student groups to take certain positions or espouse views with which they disagree. If implemented, this proposal would constitute both impermissible compelled speech and a burden to students’ associational rights, establishing an ideological litmus test for student organization recognition. This is an unacceptable outcome at any university that purports to protect its student expressive rights.

FIRE calls on SU Law to make clear that students lack the authority to make decisions that forestall the university’s commitments to free expression, and that it will not allow students to compel speech or infringe on other students’ associational rights.