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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
A student religious group that does not agree with a politically correct, campus-wide nondiscrimination policy communicates to observers its disagreement with the university's official policy, thereby contributing to the ideal of self-government.231 The protection of associational freedoms serves "as a buffer against all-powerful central authority" and preserves the private sphere in the person rather than in the government.232 The group's members are able to create a realm in which the governing university dogma does not control their attitudes and beliefs, much in the way that First Amendment rights ensure that extra-governmental perspectives can be legally disseminated.233 The unrestricted expression of a student religious group's sentiments contributes to the political process by informing the public of the variety of viewpoints that exist on religion and sexual morality.234 This lack of restriction permits observers to critically evaluate the efficacy of the organization's viewpoints on these issues and to re-examine their own beliefs, which, in turn, may lead to a change in the university's policy if enough observers agree with the student religious group's position.235
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The existence of diverse, robust, and uninfiltrated student groups is critical to ensuring vibrant campus debate.236 Some groups will emerge that advocate a change from the campus status quo on given issues, while others, in turn, will champion the current policies as worthy of continued support.237 Without protection of each group's associational rights, a Zionist group is not insulated from the demands of a neo-Nazi to be made a leader, an atheist group cannot ensure that fundamentalist Christians will not infiltrate it, and a small Hindu group cannot protect itself from "take over" by a larger group of Muslims. Viewpoint pluralism "allows the development and advancement of diverse perspectives and thereby enhances the national debate."238 The existence of a variety of viewpoints on societal conditions nurtures minority perspectives of solutions to university problems and societal issues in general.239 This existence guarantees that issues are not viewed through a single lens chosen by the public university's administration, but, instead, are evaluated by groups of people who do not all share an identical set of values, morals, and ideals.240
Hurley indicated that the appropriate use of nondiscriminatory statutes and policies in the realm of expressive speech is very narrow.241 Using such regulations for the broader purpose of correcting perceived societal beliefs is misplaced legislative activism. The Court noted that nondiscrimination rules are not proper if used as a means to "produce a society free of . . . biases"242 or for mandating speech "neutral toward the particular classes."243 Therefore, it is inappropriate for a public university, as an arm of the state, to enact nondiscrimination policies as a means of cleansing the biased minds of religious students in order to produce orthodox believers of the university's ethos. If such aims pervade a university's motivation of nondiscrimination policies, diversity of skin tone, sexuality, gender, and age are encouraged, but diversity of thought surely is not.244
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