The ‘Subsidy’ Is Not the Issue: The Incorrect Framing of ‘CLS v. Martinez’

One of the more common reactions in favor of the Supreme Court's decision in Christian Legal Society v. Martinez—that a public university need not subsidize student groups that limit membership based on views that the university opposes—has intuitive appeal, but is antithetical to First Amendment principles.

Those who agree with the Court's decision, which upheld a public university's requirement that all student groups accept all members, usually trumpet one justification for the ruling: They recognize that private groups may exercise their right of expressive association to exclude certain members, but argue that a public university need not "subsidize" this type of discrimination. This framing of the Court's recent decision is wrongheaded for several reasons, but because of its inherent simplicity, deeming speech on government property to be a subsidy has the potential to undermine speech rights beyond the college campus.

When the government opens up a forum for speech on its property, as the University of California Hastings College of the Law did by creating the student organization system on its campus, it necessarily provides its facilities and other benefits to speakers. But thinking of these benefits as "subsidies" leads to the incorrect assumption that the government is somehow sponsoring or sanctioning all speech that takes place in the forum. The Supreme Court has held that when the government opens up a forum to facilitate speech, even on its own property, that speech is considered private and is not attributable to the government. In fact, within this government-created forum, the government may not exclude speech on the basis of viewpoint. This tenet of First Amendment law prevents the government from purposely distorting the marketplace of ideas by using its resources or spending power—in other words, by claiming that because it is providing facilities or funding, it can control the viewpoints expressed on its property. So, when a university creates a forum for student expression by providing facilities and funding to student organizations, the student organizations' speech is still considered private.

As a government actor, a public university cannot discriminate against organizations espousing views it opposes. In Board of Regents v. Southworth, 529 U.S. 217 (2000), the Supreme Court held that a university must allocate the funds from its mandatory student activities fee in a viewpoint-neutral fashion. It cannot fund a pro-life group but not a pro-choice group simply because it is providing university facilities. The Supreme Court held in Southworth that a public university is required to ensure that student organizations of all ideologies have the same chance to be funded, so that "minority views are treated with the same respect as are majority views."

This principle should be equally applicable to the right to expressive association. As Justice Anthony Kennedy noted in his concurring opinion in Martinez, "[b]y allowing like-minded students to form groups around shared identities, a school creates room for self-expression and personal development." Freedom of expressive association is often necessary for the expression of speech. The government should not be permitted to deny funding or facilities to groups who limit membership for ideological reasons, simply because the organization's views are offensive to the university (in this case, a Christian group wishing to exclude those who disagree with its theology and interpretation of the Bible). Because the speech of student groups is not attributable to the university, the university cannot refuse to "subsidize" expressive association on the basis of views it finds abhorrent.

Justice John Paul Stevens is therefore dead wrong when his concurring opinion claims that while "a free society must tolerate groups whose views and exclusionary practices it finds offensive ...  [i]t need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities." (Emphasis added.) Justice Stevens' sentiment illustrates the problem with viewing the benefits provided to student organizations as a subsidy. Once access to a limited public forum is conceived of as a subsidy, people (including Supreme Court Justices) forget that the government cannot pick and choose among privately held viewpoints within that forum.

It is crucial to remember that just because the university, as a government actor, has opened up a forum for speech, that does not mean a school's official imprimatur is placed on the speech of student organizations. These are private groups speaking in a limited public forum. After all, student organizations are intended to give voice to a diversity of opinions. Does anyone reasonably think that Hastings has officially endorsed both its student Republican and Democratic groups, or that by allowing both groups access to the forum, that they somehow simultaneously speak for the university? Of course not.

Framing the benefits provided to student organizations as a government subsidy is especially inappropriate because the pool of money that comes from student activity fees and is allocated to student organizations rightfully belongs to the students, not the government. Justice O'Connor explained this forcefully in her concurring opinion in Rosenberger v. Rector, 515 U.S. 819, 851 (1995):

Unlike moneys dispensed from state or federal treasuries, the Student Activities Fund is collected from students who themselves administer the fund and select qualifying recipients only from among those who originally paid the fee. The government neither pays into nor draws from this common pool, and a fee of this sort appears conducive to granting individual students proportional refunds. The Student Activities Fund, then, represents not government resources, whether derived from tax revenue, sales of assets, or otherwise, but a fund that simply belongs to the students. [Emphasis added.]

When the student government, empowered by the university, allocates the student activities fee, it must do so in a way that recognizes that the speech of student organizations is private, and that all viewpoints deserve equal access to funding. The university may be opening up its facilities and collecting a student activities fee, but it is not "subsidizing" speech in any way that is relevant to determining whether its policies are constitutional. The fact that the Christian Legal Society met on campus facilities, and used student activity fee funding, does not permit the government to burden its right to expressive association because of the group's viewpoint.

Instead of reflexively conceiving of CLS v. Martinez as a question of whether a university must subsidize a student organization that exercises its expressive association in ways offensive to the university, the question should be whether the university's policies are reasonable in light of the forum's purpose and permit a variety of viewpoints to flourish, or whether the university has instead infringed upon the speech and expressive associational rights of those holding certain viewpoints.