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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
V. Analysis
A. Amalgamating cases to Resolve the Problem
The confluence of Hurley, Dale, Widmar, and Rosenberger brings into focus two overarching principles. First, state actors may not engage in viewpoint discrimination against an expressive group's associational freedom.157 second, associational freedom includes the right to select the membership composition of the group.158 And, under Rosenberger, Healy, and Widmar, this principle continues to hold true when the state actor is a public university and the group is a student organization.159
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Once a public university allows student organizations to form on campus, it has created a designated or limited public forum.160 Rosenberger and Widmar show that a public university cannot engage in content or viewpoint discrimination against a student religious organization's speech because any restrictions on open use of the forum must be content and viewpoint neutral.161 But, these cases dealt with either (a) a recognition policy that was facially content-biased (and arguably viewpoint-biased) rather than merely discriminatory in its impact,162 or (b) a student religious organization's pure speech rather than its expressive association.163
Arguably, a student religious group's moral assessment of other religions and homosexuality is part of the group's speech. Under Widmar, then, a public university could not abridge that speech through a content-biased policy unless it showed a compelling state interest to do so. Because asserted compelling state interests advanced in other nondiscrimination cases164 have failed to outweigh the groups' freedom of association in those cases, a court might similarly find no compelling state interests in nondiscrimination here.
However, Widmar presented a different fact scenario from those likely present in a derecognized student organization case. In Widmar, the Court ruled that the university could not enact a policy that singled out a religious organization for nonrecognition specifically because of the religious content of the group's speech.165 Therefore, while Widmar showed that a university may not enact a content-biased policy restricting a group's speech,166 it left open the question of whether a university nondiscrimination policy that is applied to all student organizations,167 and that only incidentally affects a student religious organization's ability to obtain recognition, qualifies as the type of content-discrimination prohibited by Widmar.
On its face, Rosenberger's central theme that a public university may not discriminate against a religious organization based on the viewpoint of its speech168 also supports the argument that a public university may not dictate the membership criteria of a student religious organization simply because it disagrees with the group's viewpoint of how its membership should be chosen. This argument presumes, however, that a group's protected speech includes the right to choose the identity of the group's leaders and participants. This presumption highlights a potentially significant distinction between the facts of Rosenberger and a student organization derecognition case. In the former, the student religious group was engaged in pure speech,169 which the Constitution accords the highest protection and to which the Court has applied the forum analysis consistently, whereas the latter involves freedom of expressive association, a similar but more tenuous First Amendment freedom.170 This shift raises the question of whether the constitutional designated forum doctrine from the campus group speech cases applies to a campus group's membership selection process. That is, do the viewpoint- and content-neutrality requirements for regulations on a campus organization's speech extend to an organization's right to self-constitution, which is not purely speech but, rather, expressive association! The following Part explores this question.
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