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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
II. Description of the Problem
The most obvious resolutions of the problem of student religious organization derecognition adopt two extreme positions. First, a court facing such a situation could decide that the constitutional right to freedom of association trumps the university's desire to promote total nondiscrimination on campus. According to this position, because associational rights stem from the freedoms of speech and assembly found in the First Amendment,36 the great weight of constitutional jurisprudence guaranteeing broad First Amendment liberties requires that a public university respect an organization's right to self-constitution.37 As a result, any state interest in eliminating discrimination is not sufficient to overcome the rights of the religious group.38
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The contrary position holds that strict nondiscrimination policies should be applied to all facets of campus life, even if that means universities must ban some exclusionary groups from campus, because ensuring nondiscrimination is a more important objective than protecting a group's right to choose its own membership.39 According to this view, discriminatory behavior has no place at public universities, even if conducted not by the university directly, but by a student religious organization. This position asserts that even if there is a constitutional presumption in favor of freedom of association, the state, through its public universities, has a compelling interest in ensuring inclusion that supersedes unimpeded freedom of association.40 Moreover, some argue that student religious organizations should abide by all university regulations if they wish to accept the university subsidies that usually extend from university recognition.41
An intermediate position contends that university nondiscrimination policies may be beneficial in general, but that universities should give religious organizations an exemption from the general proscription against discrimination based on religion and homosexuality.42 At least one university that refused to recognized a student religious organization later adopted this middle position.43 Such a policy would recognize the special characteristics of student religious organizations and protect the groups' freedom of association, while at the same time furthering nondiscrimination objectives.
While the derecognition of a student religious organization involves the group's freedom of association generally, it more specifically implicates the group's freedom of expressive association. The Supreme Court has divided the concept of freedom of association into two parallel concepts: the freedom of intimate association and the freedom of expressive association.44 The Court has defined intimate association as stemming from a right to privacy45 and, thus, has limited its application to matters involving marriage,46 childbearing,47 and child rearing,48 though the concept might also apply to small groups that function like surrogate families.49 The typical student religious organization would likely have a difficult time arguing for constitutional protection under intimate association precedents.50 Therefore, given the speech-based advocacy character of student religious organizations, a case involving such a group probably is analyzed more appropriately under the concept of expressive association.51
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