How do student groups contribute to a campus?
- The average campus features hundreds of student groups that advance all sorts of political, social, cultural, religious, and philosophical ideas, thereby enriching the marketplace of ideas.
- Through these groups, students get to work with like-minded colleagues to advance shared ideas.
- Many of these groups, especially religious ones, provide their members with a sense of community and camaraderie.
Why is it important that student groups be recognized?
- Recognition is often required for a student group to be eligible to reserve meeting space on campus, invite speakers, promote its events and meetings effectively, and receive funding from its members’ own mandatory student fees.
- Without recognition, it is difficult—if not impossible—for a group to continue to exist, let alone advance its ideas or expand. Losing recognition effectively banishes a group from campus.
If students groups are this great, why would universities object to them?
- Over the past 45 years, universities have tried to exclude groups that advocate viewpoints they find distasteful, and in the process, they have violated the First Amendment.
- In the 1970s, a public college rejected a group opposed to the Vietnam War, saying that recognizing it meant effectively endorsing its message. The Supreme Court rejected this argument and ruled for the student group.
- In the 1980s and 1990s, several universities banned religious student groups from using buildings and funding sources available to all other groups, saying that such equal access would violate the Establishment Clause. The Supreme Court repeatedly rejected this argument, ruling for the religious student groups.
What kinds of policies currently threaten students’ freedom of association?
- For years, universities’ nondiscrimination policies coexisted with the right of student groups to associate around shared ideas and choose leaders who affirm and advocate for the group’s views.
- But some universities today are using these policies to exclude disfavored student groups from campus. The policies come in two varieties:
- “Laundry list” nondiscrimination policies prohibit discrimination based on a list of protected classifications, such as race, sex, religion, age, and other characteristics.
- “All-comers” policies are very rare. They require every student group to open up membership and leadership positions to anyone, even those who oppose the group’s basic principles.
- Both policies prevent student groups from deciding for themselves who will be their leaders and who will represent their ideas to the rest of the campus. The “laundry list” policies just affect some groups (e.g., religious ones) while “all-comers” policies, at least in theory, impact all groups.
Didn’t the Supreme Court’s decision in Christian Legal Society v. Martinez settle this issue in 2010?
- No, the deeply divided Supreme Court in Christian Legal Society v. Martinez just addressed the exceedingly rare “all-comers” policies. It said nothing about whether the more common “laundry list” policies violate the First Amendment when they are applied to prevent some groups – like religious or political student groups – from limiting leadership or membership to those who share the group’s beliefs.
- Martinez simply ruled that “all-comers” policies are permissible, but only if they are evenly applied to all groups. It did not require—or even encourage—universities to adopt these policies. And in practice, few if any schools can or do evenly enforce such policies.
Why do we need legislation to protect students’ freedom of association?
- Students’ constitutional rights should not depend on where they live or go to school.
- Freedom of association is integral to free speech. If student groups cannot associate around shared views and choose people who share those views to speak for them they cannot effectively participate in the marketplace of ideas on campus.
- Right now the law is a patchwork quilt, where some students in some states have more freedom than others.
- Some federal appellate courts have ruled that “laundry list” policies violate the First Amendment because they protect freedom for some groups while denying it to others. For example, College Democrats may be permitted to prevent a Republican from running the group, but a Christian group cannot prevent an atheist from taking over leadership of their group depending solely on the terms included in the school’s policy.
- Other federal appellate courts have extended Martinez and ruled that “laundry list” policies do not violate the First Amendment.
- Nine states have already adopted legislation expressly protecting the freedom of association of student organizations. These are AZ, ID, KS, KY, NC (community colleges and universities), OH, OK, TN, and VA.
For more on the Christian Legal Society v. Martinez case and all-comers policies, check out the links below: