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

I. Introduction

Alexis de Tocqueville was one of the first observers of American society to note that we are a people prone to organizing ourselves into groups for religious, political, business, moral, and social reasons.1 De Tocqueville explained that neither society nor laws can compel us to be alike or equal,2 and, as a result, we form small private circles in which we find comfort and companionship.3 This principle is particularly true in the university context, especially at large public universities where students have formed hundreds of groups ranging from the American Fisheries Society to table tennis clubs.4

Academics, administrators, and students generally agree that student organizations provide an invaluable component of discourse and learning for both the campus community and for society at large.5 At the same time, political activism within the academic community has led to increased scrutiny of many longstanding student organizations at public universities. It is no surprise that student organizations vigorously engage in campus activism; however, it is increasingly common that student organizations are the targets of activism when they resist pressures that try to force them to be fully inclusive of all segments of society.6 In response to a political attitude at many universities that all discriminatory behavior-and in some cases even discriminatory speech-must end, most public universities have implemented nondiscrimination policies.7 Many of these universities have required all student organizations to agree to abide by the nondiscrimination policies as a precondition of recognition by the university.8 Thus far, clashes with university nondiscrimination policies have occurred when student religious organizations have denied students leadership positions based on disagreements over core religious tenets.9 These clashes at public universities have become more frequent and increasingly contentious,10 and their legal significance forms the framework for this Note.

Through their nondiscrimination policies, a number of universities have derecognized student religious organizations over the past few years.11 Well-publicized disputes have occurred at private schools such as Tufts University,12 Middlebury College,13 Grinnell College,14 and Williams College.15 Additionally, student religious organizations have encountered difficulty obtaining and maintaining recognition at public universities such as Ball State University,16 Rutgers,17 the University of North Carolina,18 the University of Washington,19 the University of Missouri,20 and the University of Illinois.21 In each case thus far, the university has retreated in response to public outcry22 and, presumably, constitutional precedent.23 Nevertheless, public universities continue to threaten student religious organizations with derecognition, two as recently as December 2002.24 Are universities failing to learn from the previously unsuccessful showdowns that other universities have waged against student organizations? Or do the continued challenges reveal a justifiable mission by universities to expose the seriousness of discrimination?25

A few university derecognition cases help to illuminate the issue. At the University of Missouri, a Mormon student organization, which was an officially recognized organization until the university added homosexuals to its list of protected groups, refused to promise not to discriminate on the basis of sexual orientation.26 As a result, the university derecognized the group.27 At the University of North Carolina-Chapel Hill (UNC), the administration threatened to stop funding a Christian organization and ban it from using campus facilities once the university discovered the group selected its leaders on the basis of their biblical beliefs and religious devoumess.28 UNC has since backed away from its threat in order "to uphold the principles of freedom of expression."29 In perhaps the best known case, Tufts University derecognized Tufts Christian Fellowship after the group denied a leadership position to a junior member because of her public decision to embrace a lesbian lifestyle.30 The university later repealed its decision.31

While there is no record of any litigated cases, this Note examines how a court hearing such a case should reconcile the group's freedom of association32 with the university's goal of complete nondiscrimination.33 This Note explores the contours of the dilemma a court would face in choosing between the two values. It also discusses whether the presence of student religious organizations with self-selected members benefits or harms public universities. Part II describes the problem and highlights various alternative solutions. Part III begins by describing the constitutional context into which student organizations fall and goes on to describe the type of conduct the Supreme Court has found to be impermissible viewpoint and content-based discrimination34 against student religious organizations. Through recent cases, Part IV explores a private organization's expressive associational right to choose its own membership and the extent to which nondiscrimination laws and policies restrict that freedom. Part V explains why student religious organizations are expressive organizations with broad associational freedoms. Part V further demonstrates how the constitutional prohibition on viewpoint discrimination melds with the line of cases that recognize the right of expressive organizations to self-constitution, leading to the conclusion that a public university may not use a nondiscrimination policy to restrict a student religious organization's right to select its membership on the basis of religious viewpoints. Finally, in light of the tension between freedom and equality that this Note highlights,35 Part V discusses the public policy benefits of having a diverse group of student organizations, including student religious organizations, at a public university.