The Chronicle of Higher Education held a colloquy on Thursday with David French, head of FIRE (thefire.org), who has been a leader in suing public colleges that prohibit discrimination by students groups. Here's the colloquy, http://chronicle.com/colloquy/2005/01/studentgroups/ and here is my question:
Question from John K. Wilson, Illinois State University:
I think this is not a 1st Amendment vs. 14th Amendment issue, but a 1st Amendment vs. 1st Amendment one. Students at a public university have a 1st Amendment right to participate in a registered student organization, regardless of their religion. Rulings such as the Boy Scout case deal with private organizations, not one sponsored by a government entity. It seems odd that FIRE, given its acronym, is favoring a group's right to exclude over an individual's right to participate, particularly when the organization in question is getting the student's funding.
"Mr. Wilson, you misunderstand the status of "registered" student organizations. A registered student organization is no more a public entity than a church is, or a political party, or an insurance agency, or FIRE itself. Each of these entities is "registered" to do business in a certain state, but the registration process does not make us public. FIRE is not "state-sponsored" because we are a Massachusetts corporation registered to do business in Pennsylvania. In fact, at almost every university, the registration guidelines make it clear that registered student organizations are NOT agents of the university and their actions cannot be imputed to the university itself. Regarding student fee funding, the Supreme Court has made it abundantly clear that student fee funds are not "government" funds. The only way mandatory student funds can be constitutional is if they are dispensed on a viewpoint neutral basis. The imposition of nondiscrimination regulations in this manner is not viewpoint neutral."
Let's examine this:
"a registered student organization is no more a public entity than a church is": this is utterly wrong. An RSO is a subgroup of a university, not an independent entity. An RSO has no corporate status, except as part of the university. Registration of an RSO and registration of a non-profit organization are entirely different.
"the registration guidelines make it clear that registered student organizations are NOT agents of the university and their actions cannot be imputed to the university itself.": wrong again. For example, the university cannot allow student groups to discriminate on the basis of race because the university would be legally liable for permitting this. The RSO and the university are not synonymous, but they are not entirely separate.
"the Supreme Court has made it abundantly clear that student fee funds are not "government" funds. The only way mandatory student funds can be constitutional is if they are dispensed on a viewpoint neutral basis.": this may be French's most bizarre claim. The SC rulings show that student fee funds are government funds. If they were private funds, the SC would have no authority to order these funds to be distributed on a viewpoint neutral basis--that rule can only apply to government funding.
And that's a big issue here. Students are being forced to pay money (because the rules say any student group, even a religious group, can receive funds) to organizations that ban them from participation. In the past, some conservatives have tried to ban funding of RSOs they don't like; these arguments were rightly rejected because students still had the right to join these organizations. But a campus where discrimination is allowed gives this argument much more power, because certain students (particularly atheists and gay students) will be banned by some organizations they help to fund.