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

The Court rejected the university's "insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech."89 By stating this, the Court seemingly acknowledged that speech counter to a "Christian perspective" comes not only from expressly anti-Christian publications, which the university did not fund under its policy, but also from a myriad of other seemingly secular sources that the university policy supported. Therefore, the Court rejected the argument that viewpoint discrimination does not occur when a regulation silences multiple views on religious issues along with the Christian view. Instead, it recognized that the university supported many other views on those same issues from seemingly nonreligious sources.90

The Court refused to distinguish the payment of funds to a student religious organization in Rosenberger91 from Lamb's Chapel v. Center Moriches Union Free School District,92 in which the Court held that a public school must make its facilities available on a viewpoint-neutral basis.93 The Court in Rosenberger stated that a university cannot justify viewpoint discrimination on the basis of "scarcity" of funds and that the decision in Lamb's Chapel would have been no different had meeting rooms been scarce in that case.94 The Court found no controlling difference between using funds to build and operate a facility and using funds to pay for costs involved in running a student organization.95 Finally, the Court found no violation of the Establishment Clause if the university funded the printing costs of the newspaper, noting that neutral policies that provide support to diverse, even if religious, viewpoints preserve neutrality toward religion.96

IV. Freedom of Association and an Organization's Right to Self-Constitution

While Widmar and Rosenberger indicate that public universities may not use viewpoint-discriminatory and content-discriminatory policies to encroach upon a group's speech rights,97 they do not directly settle the issue of whether a student religious organization's expressive association rights encompass the right to choose its membership in a manner forbidden by a public university's nondiscrimination code. Conflicts between private groups' rights to set their own membership guidelines and nondiscrimination regulations are not a new problem. Over time, the Court has fluctuated on whether a group's freedom of association permits it to self-constitute in violation of a nondiscrimination law or policy.98 The Court's answer has depended upon its assessment of the amount of damage to the group's freedom of association that would result from a forced inclusion of unwelcome individuals.99

A. Pre-Boy Scouts v. Dale

In the years before Boy Scouts of America v. Dale,100 the Supreme Court resolved such conflicts by balancing the private group's right to freedom of association against the state's interest in prohibiting discrimination.101 In the cases that preceded Dale, the Court usually found that the state had a compelling interest in eradicating discrimination that superseded the private group's right to self-constitution.102 In most of the pre-Dale cases, the Court posed the question in the negative: Does the particular group's right to freedom of association give it the freedom not to associate with specific groups of people despite the state's interest in eradicating discrimination in society?103