Enforcing a University's Non-Discrimination Provision for a Student Organization's Selection of its Members and Officers

Journal of Law and Education, Oct 2005 by Hamilton, Dona G, Bentley, Eric D

I. INTRODUCTION

Many universities have adopted a student disciplinary code that contains a non-discrimination provision and provides that a student is in violation of the disciplinary code if a student intentionally discriminates against another person on the basis of that person's race, color, religion, national origin, sex, age, disability, veteran status, or sexual orientation. When the non-discrimination provision contained in a university's disciplinary code is applied to a student organization's selection of its members and officers, a conflict arises when members of a student organization refuse to allow certain individuals or groups of individuals to become members or officers in their organization. For example, a Christian student organization may seek to refuse to allow nonChristians to become members or officers in their organization, a Muslim student organization may seek to limit its membership to males, or a race based student organization such as the Black Law Students Association may seek to refuse to allow members or officers in their organization who are not African American.

When a student organization seeks to limit its members or officers on the basis of a person's religion, race, sex etc., a state university is presented with a legal dilemma to either enforce its student disciplinary code and allow the individuals who are seeking to become a member or officer in the student organization to be free from discrimination, or revise its student disciplinary code and allow the members and officers of the student organization to exercise their freedoms of speech, association, and free exercise of religion under the First Amendment. Stated another way, a state university officiai may end up staring down the barrels of two possible lawsuits, and the state university official must quickly decide whether it would rather be sued by a student who was not allowed to become a member or officer in a student organization and who claims he or she was discriminated against on the basis of the student's religion, sex, race, etc., or whether it would rather be sued by a student organization that claims the members of the student organization were denied their First Amendment freedoms of speech, association, or religion, as a result of the forced inclusion of an unwanted member or officer.

II. RECENT LITIGATION

The legal dilemma that occurs in relation to enforcing a non-discrimination provision in a student disciplinary code has taken center stage in recent months with Christian groups that are suing state universities and claiming that the forced inclusion of homosexuals and non-Christians is an infringement on the Christian groups' freedoms of speech, association, and free exercise of religion under the First Amendment. The Christian Legal Society seems to be at the forefront of the battle to force the hand of administrators at state universities such as Arizona State University, Ohio State, University of California Hastings, and Washburn University, as to whether each university will revise its student disciplinary code.1 Pending litigation, such as the cases involving the Christian Legal Society, as well as future litigation may result in case law that directly addresses whether the stronger legal interest is that of a university's students to be free from discrimination, or that of the members of an official student organization to exercise their freedoms under the First Amendment. In the meantime, there are U.S. Supreme Court decisions, additional case law, and statutory law that a university official may analyze in order to make the difficult decision of whether to enforce the nondiscrimination provision of its student disciplinary code in relation to an official student organization's selection of its members and officers.

III. CASE LAW

In Healy v. James, the U.S. Supreme Court addressed a situation in which the president for Central Connecticut State College denied campus recognition to a group of students who were seeking to form a local chapter of Students for a Democratic Society at the college.2 The president of the college denied recognition because he believed the local chapter of the student society was not independent of the national student society, which the president concluded had a philosophy of disruption and violence that was in conflict with the college's declaration of student rights.3 The Court in Healy found that "the mere disagreement of the President with the group's philosophy affords no reason to deny it recognition. As repugnant as these views may have been, especially to one with President James' responsibility, the mere expression of them would not justify the denial of First Amendment rights."4 While the reasoning in Healy is clear that a university cannot deny recognition to a student organization simply because it disagrees with the student organization's philosophy, what if a university does not inquire into any of its student organization's philosophies, but instead, applies a rule across the board that all student organizations on campus seeking to become official student organizations must agree not to discriminate in the selection of its members or officers on the basis of a person's race, color, religion, national origin, sex, age, disability, veteran status, or sexual orientation? The Healy decision may provide some insight into the answer to this question. The U.S. Supreme Court in Healy stated,