Forced Association Is Not Free Association

The Supreme Court recently heard oral arguments in an important First Amendment case, Christian Legal Society v. Martinez. Here’s the question it presents: can a public university refuse to recognize a campus group because the group insists that individuals who wish to join it adhere to a particular set of views?

The Christian Legal Society (CLS) is an evangelical Christian student group with the mission “To inspire, encourage, and equip lawyers and law students, both individually and in community, to proclaim, love and serve Jesus Christ through the study and practice of law, the provision of legal assistance to the poor, and the defense of religious freedom & sanctity of human life.”

Anyone who wants to become a member of CLS is required to agree to its statement of faith, which includes acceptance of Christian beliefs as well as prohibiting “fornication, adultery and homosexual conduct.” CLS is thus selective in its membership. It adheres to certain standards and wishes only to admit those who share its vision.

The pejorative way of stating that is that CLS discriminates.

Discrimination runs afoul of the mania in higher education for “diversity.” It has become a tenet among college officials that every campus organization must be open to everyone, just as schools themselves go to extraordinary lengths to include students from all sorts of “diverse” groups. That tenet is held with as much tenacity as any religious belief and it led to conflict at the University of California’s Hastings College of Law.

When school officials found out about the CLS’s required Statement of Faith, they refused recognition to the campus chapter. That meant that the group was denied the same access to campus facilities and funding that “recognized” groups enjoy. Hastings, in other words, decided to fight discrimination with discrimination.

CLS sued over the policy, arguing that it violated the group’s First Amendment right to associate only with individuals who agree with its standards and mission. As precedent, CLS cited the Supreme Court’s 1984 decision in Roberts v. U.S. Jaycees, holding that “freedom of association plainly presupposes a freedom not to associate.”

The trial court agreed, but the infamous “left-coast” Ninth Circuit Court of Appeals reversed its decision. Hence the gunfight at the Supreme Court’s corral last Monday.

Arguing the case for CLS was former federal judge and now Stanford Law professor Michael McConnell, who said, “If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study.” Another absurd scenario he suggested was that an NAACP chapter would have to admit white racist skinheads as full members, entitled to vote on its agenda.

Counsel for Hastings dismissed that possibility as far-fetched, something that has never happened in history. Perhaps it has never happened because groups have heretofore been free to establish their membership requirements and keep out people who disagree with and possibly desire to subvert the organization. In today’s hyper-politicized climate where some people will stop at almost nothing to accomplish their objectives (for example, the effort to “Crash the Tea Party” by having opponents pretend to be supporters while carrying outrageous signs and saying damaging things), concern over that possibility doesn’t seem far-fetched at all.

During oral arguments, Justice Sotomayor, evidently hostile to CLS, asked whether there might be an increase in discrimination against women and minorities if organizations were free to decide upon restrictive membership policies. The answer, I submit, is assuredly not (what group wants to irrationally limit its membership?) but even if so, that doesn’t matter because there are other groups that are open to them.

That brings me back to the diversity mania. Those caught up in it, including Leo Martinez (the defendant and dean of the college), act as if you won’t have the full benefits of diversity unless every campus organization is completely open to everyone. Sticking to his notion that membership discrimination is intolerable, he told a public TV station in an interview that a black group should have to admit white supremacists and a Jewish group should have to admit Muslims.

The trouble with that position is that you’ll still have abundant viewpoint diversity and dialogue among campus groups that are not themselves “diverse.”

Furthermore, the inflexible rule that Hastings (and many other schools) wants to impose against membership standards is apt to lead to less true diversity on campus. If groups like CLS or Gays and Lesbians for Individual Liberty (which submitted an amicus brief siding with CLS even though the two groups differ on the morality of homosexuality) have to temper their positions because of “members” who don’t really share their views, the campus will less intellectual vibrant and diverse.

The great concept of the First Amendment was that government should keep its hands entirely off speech and association, allowing people and organizations to promote their goals as they think best. We’ll know if the Court agrees when it issues its decision in June or July.

Whatever the Court rules, however, colleges and universities will still be free to adopt policies regarding student organizations that are less restrictive than the Hastings policy of forbidding any membership qualifications. The Court might say that schools are permitted to have such a policy, but it won’t say that schools must have it. So what makes sense? What policy would be the most reasonable?

Broadly, colleges should allow student groups to organize for any peaceful purpose and set their own membership requirements—as in society generally. No harm will come from permitting them to restrict membership just to individuals who have a common outlook or interest. If, for example, the Students for a Democratic Society (a group known for its zealous left-wing activism) is concerned about infiltration by libertarians, they should be free to limit membership to those willing to sign something equivalent to a socialist “Statement of Faith.” The same, of course, is true for the College Libertarians; if they don’t want students who disagree with their philosophy voting on group decisions, they ought to be free to make that choice.

Now, someone like Dean Martinez might say, “Those concerns are overblown and the benefits of a non-discriminatory policy are significant.”  But this question shouldn’t be school officials’ call. It’s far more reasonable to leave it to the people directly affected.