Nov2011cover
THE
BULLETIN
Volume 78 | Issue 6
November 2010

Student Organizations and Nondiscrimination Statements: Balancing student involvement and inclusion

Missy Burgess

As access to college education continues to expand, many stakeholders are calling upon institutions to provide an open, welcome, and inclusive climate for all students. In addition, scholars have studied student development in college and documented how students learn and grow in their college experience, particularly through their involvement in student organizations.

The issue many public institutions are facing is: What happens when student involvement opportunities are not open to all students? Specifically, there are currently challenges surrounding student organizations and whether they are required to accept institutional nondiscrimination statements to be officially recognized by the institution. This issue has been drawn into the spotlight with the recent ruling by the U.S. Supreme Court in the Christian Legal Society (CLS) v. Martinez case.

Background

To completely understand the recent ruling, it is helpful to understand some of the background issues and previous cases. Legally, this is often a debate between religious student organizations and their First Amendment rights, on the one hand, and gay, lesbian, bisexual, or transgender (GLBT) students and their 14th Amendment right to equal protection on the other. Many religious student organizations assert that their beliefs and constitutional rights are infringed upon when they are forced to adopt a nondiscrimination statement and include GLBT students in their membership. Nondiscrimination policies and statements are, in many cases, an institution’s way of maintaining compliance with national or state laws. According to Kaplin and Lee in their 2007 book, The Law of Higher Education, the equal protection under the law clause of the 14th Amendment, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and various state laws all prohibit discrimination based on personal characteristics including race, color, religion, national origin, and sex for any group or organization that receives state or federal funding, often a right of recognized student organizations. However, sexual orientation and gender identity have not yet been included under national laws as protected classes. Some states, businesses, and most public colleges and universities have chosen to address this issue by including these areas in their nondiscrimination statements. As Maclean stated in the June 6, 2006 issue of The National Law Journal, institutional recognition is important because it often gives groups access to institutional funding, the ability to reserve space, and access to a faculty or staff advisor from the institution.

Until this year, scholars often drew from related cases in their arguments as to which of these two sides should come out on top. For example, in Widmar v. Vincent, the Supreme Court ruled that the University of Missouri–Kansas City could not deny the rights of a student organization (in this case meeting space on campus) based on the religious nature of the group, as this is a violation of First Amendment rights. The university argued that the group was excluded from its student organization rights because of the “separation of church and state” principle, but the court ruled that the group’s participation on campus did not imply that the public university had established a designated religion for the institution.

Similarly, in Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court ruled that the university could not deny financial resources to a Christian-based student publication because of its religious content. The court ruled that this was “viewpoint discrimination” that violated the students’ First Amendment rights to freedom of expression. In other words, policies must be viewpoint neutral and an institution cannot decide to fund or not fund an organization because of the specific values and beliefs it represents; policies must be applied equally to all groups.

In a third case, Healy v. James, the court ruled that an institution cannot deny recognition to a student organization based on the group’s beliefs or the potential for disruption to the campus environment, without proving that the disruption will have a detrimental impact on students’ ability to obtain their education. In other words, this case found that an institution cannot deny a group access to a campus just because it might cause a problem; there has to be reasonable evidence that the anticipated problem will actually occur. The court reasoned, however, that an institution can require that all groups comply with reasonable campus regulations on the time, place, and manner of the free speech activity, but these regulations must be viewpoint neutral. This case leads to the question: Do institutional nondiscrimination statements regulate speech or conduct?

More recently, others have cited Boy Scouts of America v. Dale as a relevant Supreme Court case in this situation. In this case, the court found that the forced inclusion of unwanted persons into a private group violates the group’s freedom of association and freedom of speech to advocate their views. This case gives private organizations more latitude than those that receive state or federal funding. So, the court had clearly stated that institutions cannot deny recognition or support to religiously oriented student organizations based solely on their religious affiliation, but they can require them to comply with reasonable campus conduct regulations, and private groups have a right to exclude persons from their membership. However, there had not been, prior to CLS v. Martinez, a definitive ruling on whether student organizations must abide by institutional nondiscrimination statements.

Several lower court cases had also been tried on this issue prior to the most recent ruling in CLS v. Martinez, but in these cases, the courts had not necessarily agreed with each other. In Christian Legal Society v. Walker, the Seventh Circuit court ruled that Southern Illinois University violated Christian Legal Society (CLS) members’ First Amendment rights when administrators stripped the group of its recognition as a student organization because its membership policies violated the university’s affirmative action and nondiscrimination policies, Campus Activities Programming reported in 2008. In another case, Alpha Iota Omega v. Moeser, the lower court ruled in the University of North Carolina’s favor after the university altered its nondiscrimination policy for student organizations in such a way that allowed for Alpha Iota Omega to request an exception to the policy and to regain its recognition status as a student organization. The group had previously lost this status when it failed to agree to the institution’s nondiscrimination statement. These are just two examples of lawsuits filed in similar situations. Because the lower courts had not reached a clear consensus, the Supreme Court heard arguments on the CLS v. Martinez case on April 19, 2010.

Christian Legal Society V. Martinez

In the CLS v. Martinez case (often referred to as “the Hastings case” or “the Hastings decision”), CLS at the University of California, Hastings College of Law, had been a registered student organization from 1994–2004. In 2004, when students in the organization sought travel funds from the university, they were told that the organization’s bylaws were no longer in compliance with the institution’s “all-comers” policy for membership and officers. To remain a registered student organization, the group was told to adjust its bylaws to comply with the policy. The organization existed for that year without official university recognition.

Justice Ruth Bader Ginsburg, in offering the opinion of the court released on June 28, 2010, summarized the case by narrowing it down to the question: “May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?” She went on to state that in this case, CLS felt that the all-comers policy at the University of California, Hastings College of Law, requiring recognized student organizations to accept all persons for membership and officership, was a violation of its First Amendment freedoms of speech, religion, and association. From the perspective of Hastings, CLS was seeking a special exception from Hastings’ open-access requirement for all student organizations, which they felt was designed to further their institution’s educational mission.

In a brief summary of the court’s 5-4 split decision, Ginsburg stated: “In accord with the District Court and the Court of Appeals, we reject CLS’s First Amendment challenge. Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations.” She went on to note that CLS did not argue that they were treated any differently than any other recognized student organization (an important factor argued by the organizations in the Widmar, Rosenberger, and Healy cases), but rather were requesting a special exception from the policy. She noted that the First Amendment allowed CLS to have freedom of expression in its group activities, but it did not allow the group to seek exception to this policy.

In this case, Justice John Paul Stevens, in one of his last acts before retiring from the court, offered a concurring opinion. He said that, in this case, although the policy may more frequently be applied to religious student organizations, there is no evidence that it was designed to harm these groups. He stated that because in this case the student organization program is a limited public forum, the college has the right to create the nondiscrimination policy, as long as it applies it equally to all groups.

Implications

This leaves a common question for many student activities offices at public colleges and universities: what does this all mean? The Supreme Court made clear that it is constitutionally allowable for public colleges and universities to maintain a policy, requiring that all groups admit all members, regardless of whether their viewpoints or beliefs are counter to the group’s mission, as long as this policy is viewpoint neutral and maintained equally for all organizations. They also made it clear that it is acceptable for institutions to hold student organizations accountable for institutional nondiscrimination policies. However, the court did not mandate institutions to adopt such policies. Therefore, institutions who have policies in other forms (such as the exception policy in the Alpha Iota Omega v. Moeser lower court case) need not immediately rush to make changes based on this decision.

In addition, the justices recognized that organizations like Christian Legal Society might fear that their organizations could be “hijacked” and taken over by those whose beliefs differ from those of the organization. The court stated that while this has not yet occurred at institutions like Hastings, it is something of which colleges and universities need to be aware. In the Hastings case, the justices recognized that institutional policies on conduct would intervene in the area of disruptive or disturbing behaviors.

This case also stated that outside of the Hastings system, in a public forum (versus a limited public forum, a public forum is free from any regulation on free speech), the Christian Legal Society has additional rights under the First Amendment. An all-comers policy, such as the one Hastings adopted, does not prevent a group of students from gathering and engaging in meetings and other common activities, outside of the recognized student organization system. In other words, organizations can continue to function and serve their missions without having to comply with institutional policies, but without official college or university recognition or rights afforded to student organizations. This has caused some student affairs professionals to wonder if some student organizations will choose to exist outside of the structured institutional system provided so their activities are no longer subject to the same challenge, support, or regulation. This potential implication is one that will only be resolved over time, but it is one that will challenge institutions to look at all implications as they begin to adapt or change policies and procedures.

Because this decision is so recent, there is not an established best practice for institutions to follow. There seem to be more questions than answers. For example, what are the other implications if an institution adopts a true all-comers policy? Does this mean that academic honoraries can no longer discriminate their membership based on grade point average or academic major or does this only apply to those demographic qualities listed in an institution’s nondiscrimination statement? How does this case interact with Title IX with regard to gender-exclusive fraternities and sororities? How are previously existing organizations notified of this policy and brought into compliance? How can professionals ensure that policies are enforced consistently and document decisions related to organizations? These questions promise to be the topic of many upcoming professional conversations.

For now, there are a few helpful places to start when considering implications at each unique institution as pointed out in a paper presented by Rutgers University Senior Vice President and General Counsel Jonathan Algers on Oct. 6 at the ACUI online learning program “Nondiscrimination Policies and Student Organizations”:

  • Examine the mission or vision for student organizations on the campus. Is the goal to provide a forum for all students to feel comfortable joining inclusive activities? This may lend more toward an all-comers policy. Is the student involvement program designed to create a venue for like-minded students to find a way to join and express or promote their common ideas? Then, a different type of policy may be best suited.
  • The court has made it clear in several cases that an institution must have a viewpoint neutral policy. In other words, the policy that is created must be applied evenly to the recognition of all organizations. This same premise applies to the funding of student organizations.
  • Professionals need to understand the types of criteria that can be used to define membership in a student organization. Requirements not related to beliefs or viewpoints can still be used, such as attendance, skills-based tests, and payment of dues.
  • An institution should make sure its policies provide a way to best address the “hostile takeover” situation. This may mean creating policies of accountability or making the process for forming new organizations easier and more flexible so that those who have opposing viewpoints can form their own organization.
  • The institution should have a plan in place for how it will work with groups that opt not to become registered student organizations. In addition to funding considerations and use of the university name, such a plan will likely include guidelines for room rental and event scheduling, available marketing opportunities (e.g., digital signage, bulletin boards, involvement fairs), staff support, and maintenance of records/contact information.

Many have predicted that this case will not be the last legal decision on this issue. In this case, the justices ruled specifically on the issue at hand, but they chose not to venture into the other questions that may arise from the Christian Legal Society (CLS) v. Martinez decision. They also remanded the dispute at hand back to the Ninth Circuit court for resolution. Other cases are likely to help shape this issue even further.