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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
Moreover, Dale obligates a court to respect a group's determination that forced inclusion would impair its ability to engage in free speech.184 The Dale Court noted, "As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression."185 Therefore, a student religious organization should have little trouble showing that the forced inclusion of particular students impairs the group's ability to express the values and ideas that originally caused the members to associate with one another in the first place. Such an erosion of the control and direction of the organization wreaks havoc on the student group's freedom of association by diluting the strength of the members' voices, changing the group's message, and muddying the organization's purpose.186
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Hurley also supports the conclusion that public universities may not derecognize student religious organizations for failing to follow campus nondiscrimination policies. Though not normally engaged in parades, student religious organizations routinely participate in rallies, proselytize, host public speakers with definitive and controversial points of view, and engage in other expressive activities intended for public consumption.187 Thus, the private citizens who congregate in student religious groups engage in expressive behaviors that universities frustrate by forcing the groups to express certain beliefs or refrain from expressing other beliefs.188 Because the forced inclusion of people into a group changes the group's message189 and a governmental entity "may not compel affirmance of a belief with which the speaker disagrees,"190 public universities lack the authority to control a student religious organization's membership.
Dale, Hurley, and Rosenberger also show that student religious organizations do not lose the freedom to choose their own members by availing themselves of some state resources. A university might argue that in Dale, the Boy Scouts was found to be a private organization191 and that a derecognized student religious organization is arguably at least quasi-public because the state-supported public university partly finances the group. Or, it might argue that it may regulate the membership requirements of one of its groups because the student group is financially dependent upon it while Massachusetts did not fund the private marchers in Hurley.192 Of course, the dichotomy between the Boy Scouts or the marchers and a student religious organization is not sharp. The Boy Scouts receives a great deal of direct and indirect financial support from all levels of the government,193 yet the law does not permit New Jersey to control the Scouts' membership requirements.194 Likewise, the veterans group in Hurley was not susceptible to Massachusetts' desire to force the inclusion of outsiders despite the fact that tax dollars partially underwrote the parade and it used government-owned roads and sidewalks.195 Further, in Rosenberger, the Court concluded that a student group, which used university-owned buildings and funding, nevertheless engaged in private, not public, speech.196
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