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 engaged in a three-step analysis in Dale. First, the Court found the Scouts' practice of inculcating values in boys to be an "expressive activity."143 Second, the Court ruled that the forced inclusion of homosexuals would significantly injure the Boy Scouts' ability to advocate its viewpoint on the propriety of homosexuality.144 Finally, the Court held that the mandated inclusion of practicing homosexuals would impermissibly force the Scouts to speak in favor of a view that it opposed.145 In short, the Court ruled that the required inclusion of a gay scoutmaster would significantly and unconstitutionally interfere with the Scouts' freedom of association.146

Dale marks an important shift in Supreme Court jurisprudence surrounding the nexus between freedom of association and nondiscrimination laws. Before Dale, the Court put the burden on the organization to show that the nondiscrimination law would significantly encumber the group's expression.147 Even if the group demonstrated this, the group then had to convince the Court that the group's interest in expressive association was so paramount-and the encumbrance so severe-that it trumped the state's interest in promoting nondiscrimination.148 In Dale, the Court changed course, giving deference to the group's claim that inclusion would negatively affect its expression.149 In effect, then, the Court accepted as true the Scouts' assertion that the law hampered its associational rights simply because the Scouts claimed the law was burdensome upon its freedom of association.150 Probably more important, however, was the Court's retreat from the second prong of the pre-Dale test. The Court in Dale did not even discuss the balancing test prong of the pre-Dale approach; instead, in one sentence, the Court succinctly dismissed the state's interest as too weak to counter the Scouts' associational freedom.151

Another important facet of Dale was that the Court did not distinguish between discrimination based on an unwanted person's status or his advocacy of a belief outside of the particular organization and discrimination based on his advocacy of a certain viewpoint within the organization.152 The Court permitted the Boy Scouts to deny membership to Dale, who did not advocate homosexuality within the context of the Scouts, because he identified himself as a homosexual153 in a visible, non-Scout context.154 As a result, it is likely that in future conflicts, a court will not distinguish between a group's discrimination against a person based on his status or extra-organizational advocacy and its discrimination based on the unwanted person's advocacy of unwanted views within the context of the organization.

The Dale Court's decision to subordinate New Jersey's nondiscrimination law to the Scouts' freedom of association possibly anticipates the result of a case involving the derecognition of a student religious group. Following Dale, it is possible that a court would accept a Christian organization's contention that its core beliefs155 teach that it should follow and profess the principles of Christianity, but not those of other religions or irreligion. The group could buttress this assumption, of course, by showing that definitive principles have guided the association's actions and speech in the past.156 As explained below, however, Dale alone does ensure that a public university cannot derecognize a student religious organization for engaging in exclusionary membership practices.