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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
An important early case is Roberts v. United States Jaycees.104 In Jaycees, the Court found that requiring a private, business-oriented club105 to admit women did not significantly injure the group's associational activities.106 Therefore, the Court concluded that enforcing a Minnesota statute against the club did not impermissibly restrict the group's freedom of association.107 The Court found that Minnesota had a compelling interest in ensuring nondiscrimination that outweighed the organization's free association rights.108 Nevertheless, in an important aside, the Court noted that freedom of association "presupposes a freedom not to associate."109
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A similar case is Board of Directors of Rotary International v. Rotary Club of Duarte.110 The most significant aspect of Rotary is that the Court began to use a "core belief test,111 which became centrally important in later cases such as Dale.112 The Court used the test to determine whether the forced inclusion of a person or group of people significantly damaged the group's freedom of association. This determination was made by assessing whether the forced inclusion would injure the group's expression of any of its core beliefs.113 The Court noted that the inclusion of women did not undermine the Rotary Club's stance on any of the central issues that the group championed.114 Therefore, under the Court's jurisprudence at that time, the enforcement of the statute against the Rotary Club did not effectively trample the group's freedom of association rights.115
The Court's dicta in New York State Club Association v. City of New York,116 intimated that the right club or group could win a freedom of association challenge to a nondiscrimination statute or policy.117 The Court said the group would have to "show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoint nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion."118 Nevertheless, based on the facts in the immediate case, the Court, applying a balancing test, concluded that the state's interest in advocating nondiscrimination outweighed the group's right to freedom of association.119
The Supreme Court's rulings in Jaycees, Rotary, and New York State Club might help predict a court's treatment of a derecognized student religious organization case. Under Jaycees and Rotary, a court could find that a particular student religious organization has the small size and selectivity requirements for strong freedom of association protection.120 Alternatively, it might agree that many student religious groups are affiliates of large national organizations121 or that they do not have strict selection guidelines,122 both of which would arguably diminish the constitutional significance of their expressive activity. New York State Club's dicta suggested that a student religious organization might successfully avoid derecognition if it could show that it organized for expressive purposes and that a forced membership inclusion would severely damage its ability to express its viewpoint.123 The counterargument would be that a student religious organization does not organize for "specific expressive purposes"124 but, rather, for general fellowship and camaraderie. Further, one could argue that New York State Club's dicta applies only to private organizations125 and that student religious organizations, as funded entities of a state university, are sufficiently public in nature that more exacting nondiscrimination rules apply to them.
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