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Viewpoint Discrimination by Public Universities: Student Religious Organizations and Violations of University Nondiscrimination Policies
Washington and Lee Law Review, Spring 2004 by Snider, Mark Andrew
B. Freedom of Association Forbids Public University Derecognition of Student Religious Organizations
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As discussed above, if a student organization convinces a court that its protected speech includes the viewpoint that is expressed by not elevating nonadherents and practicing homosexuals to leadership positions, then the student religious organization should easily win a challenge on freedom of speech grounds against a public university seeking to derecognize the group.171 Even if the group does not convince a court that the selection of its members is itself speech, the Supreme Court's decisions in Hurley and Dale show that an expressive group's freedom of association nonetheless gives it the right to choose its own membership despite the existence of nondiscrimination regulations.172 Because freedom of expressive association is not a second-rate freedom, but rather a means by which the other First Amendment freedoms may be enjoyed, the self-constitution component of freedom of association must be given the same constitutional protection that the speech component receives.173 In effect, the Supreme Court has stated that an expressive group's freedom of association includes not only the freedom to speak a particular message, but also the equally important right to choose who will deliver that message.174
But, are student religious organizations expressive groups? Dale and the line of cases preceding it175 lead to the conclusion that student religious organizations are, in fact, expressive groups. In Jaycees and New York State Club, the Court established a continuum upon which organizations fall, with the highest constitutional protection of association afforded to families and the least to unselective business enterprises.176 While not as intimate as families, most, if not all, student religious organizations assemble, at least in part, for the expressive purpose of espousing deeply held religious views to each other and to the campus in general. These groups are often self-selective, emotionally tight units with a common worldview, and they therefore appear to fit the standards of an expressive group deserving the strong membership self-selection rights outlined in New York State Club.111 Because student religious organizations congregate for specific expressive purposes and rarely engage in commercial enterprises,178 most student religious organizations meet the Jaycees criteria-small size, selectivity, defined purpose, and clear policies179-for strong constitutional protection. The Court has noted that "constitutional shelter" is proper for such associations because individuals "draw much of their emotional enrichment from close ties with others."180
A campus group such as a Christian student organization, then, is an expressive association that should not have to advocate both pro-Christian and anti-Christian stances in order to maintain university recognition. So long as it can show that the forced inclusion of outsiders would frustrate its expression, the group's freedom of association covers the right to self-select its membership.181 If a university tried to derecognize a Christian organization for refusing to select a non-Christian as a leader, the organization could contend that, under Dale, the forced inclusion of the nonbeliever would injure the group's ability to advocate a Christian viewpoint.182 If the charge against the Christian organization was that it had discriminated against a student based on his sexual preference, Dale shows that a court should give deference to the group's assertion that having an openly gay leader would also disrupt its expressive freedoms.183
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