More Debate on CLS v. Martinez

John Rosenberg argues at the Discriminations blog,

writing today on Inside Higher Ed John K. Wilson asks whether student groups “must be given special rights due to their religious orthodoxy,” and if they are, he concludes ominously, “the practical effect of embracing religious oaths for student groups” [do colleges “embrace” the views of all the groups they recognize?] would be “a violation of individual rights, an attack on student democracy, and a potential increase in administrative power.”
As I said, I don’t want to argue the merits or the law here. But I do want to emphasize an irony that Silverglate noted in his concluding sentence: “If the Supreme Court decides that public colleges may deny religious groups the same rights as any other group on campus, the result will be less, not more, genuine diversity on campus.”

No, colleges do not embrace the views of the groups they recognize. I'm not talking about that. But they certainly do embrace the enforcement structure of the by-laws for the groups they recognize. For example, if the by-laws of a student group require the president to be elected every year and an individual declares himself president for life of the group, then you would go to the college administration for relief and they would investigate and if the by-laws were violated, compel an election to take place.

So what happens when you compel certain beliefs in the by-laws? Well, then someone can go to the administration and demand that they investigate the beliefs of a member of the group and then compel their removal for incorrect beliefs.

As I have argued, this is a dangerous and impermissible power for a public college to have. It violates the individual rights of students who would be banned from student groups. It violates student democracy by overruling the student choices for leaders. And it gives administrators enormous power to control student groups.

The alternative is to let the national CLS make decisions for students (which is what CLS demands), an approach I believe is both illegal for a public college and contrary to student rights. Or we can just let the students decide who their leaders are, which is the democratic solution I propose.

As for Silverglate's argument about enhancing diversity, I don't think it's very plausible. There are two parts to it: if student groups are forced to have disbelievers in their midst, it will stop their activities. I don't think this is true. After all, actually disruptive people can legitimately be removed from a student group. And I don't believe that a student group needs homogeneity or unanimity to function.

The second part is the hostile takeover. As I've noted, this is so rare that no one can cite a successful case of it happening, and the CLS rules don't necessarily stop it. If it's a problem then colleges can simply adopt a rule prohibiting people from taking over student groups in order to destroy them.

I would like to see Rosenberg argues about the merits and the law here. So far, the conservatives (and liberals) who think CLS is an obvious case have yet to respond to any of the problems I raise about who enforces these rules.