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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
Under Healy, the legal presumption is that a public university should recognize a student religious organization so long as the group follows the procedural formalities of recognition and no compelling state interest otherwise justifies nonrecognition.69 In the context of student religious organizations, the compelling state interest that a public university most likely would advance is its interest in protecting students from all forms of discrimination. Under some circumstances not involving student organizations, courts have found nondiscrimination to be a compelling state interest permitting the abridgement of associational rights.70
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A public university, however, would likely have a difficult time showing that a compelling state interest requires it to force a student religious organization to admit or elevate to a leadership position a nonadherent or a practicing homosexual. First, with regard to a nonadherent, federal law bars discrimination on the basis of religion only in places of "public accommodation."71 The law might not classify student organizations as places of "public accommodation" because membership is not open to the general population, but rather is limited to university students, and because a person need not be a member of a student organization to be permitted access to university grounds.72 State statutes forbidding discrimination on the basis of religion are also unlikely to include student religious organizations within their scope.73 Second-with regard to a practicing homosexual-while the Court has recently found a new and tenuous constitutional freedom to engage in homosexual sodomy,74 it has never found the protection of homosexuals to be a compelling state interest.75
B. Viewpoint and Content Discrimination Against Student Religious Organizations
In addition to the almost-absolute ban on viewpoint discrimination, public universities generally cannot engage in content-based discrimination against religious organizations.76 The Court ruled in Widmar v. Vincent77 that a university may not derecognize a student religious organization by enacting a policy that discriminates against it based on the content of its speech.78 Once the University of Missouri created a forum generally open for student use, it had to show that its policy excluding all religious speech from the forum served a compelling state interest.79 The Widmar Court found that forbidding all religious speech, while permitting other forms of speech, amounted to unacceptable content-based discrimination.80 After finding that allowing religious speech within university forums did not violate the Establishment Clause of the First Amendment,81 the Court ruled that the State's desire to achieve a greater separation of church and state than the Constitution required was not a compelling state interest that justified discrimination against student religious groups.82
According to Rosenberger v. Rectors and Visitors of the University of Virginia,83 a public university may not exercise viewpoint discrimination against a student religious organization, even if the university created the forum it wishes to regulate.84 In Rosenberger, the University of Virginia refused to subsidize the printing costs incurred in publishing a student newspaper with a Christian perspective, despite the school's willingness to pay such costs for all other student newspapers.85 The Christian newspaper, Wide Awake, met all the criteria necessary to quality for school funding86 but, nevertheless, the school's student council denied the paper funding because it labeled the newspaper a "religious activity."87 The Supreme Court found the university's actions to be impermissible viewpoint discrimination.88
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