Tuesday, June 29, 2010

Commentary on CLS v. Martinez

The CLS v. Martinez case brought the usual mainstream media coverage from the New York Times and the Chronicle of Higher Education. InsideHigherEd covered the news extensively, and had an interesting follow-up that quotes the president of the Christian Law Student Association at Southern Illinois University: “We have no requirements. If you want to come, you are welcome to come." Expressing openness to all is much wiser than four Supreme Court justices and a whole host of pundits crying out falsely about political correctness and freedom of association. One important fact to point out in all of this was that the national Christian Legal Society imposed these rules on their students; the students never came up with the code of conduct on their own. SIU's decision to allow discriminatory groups is a bad one imposed by a misguided judge, and it should be reversed even if the campus CLS has disappeared. Legal principles do matter, and a law school in particular should adopt the right principles.

Anne Neal of ACTA asks, “If student organizations are not allowed to have a coherent set of beliefs, can there in fact be intellectual diversity?” But this is wrong: student organizations are fully allowed to have a coherent set of beliefs under the Court's ruling. If the CLS Code of Conduct had been part of the group's founding documents as expressing its set of beliefs but not imposed on members or leaders, then there would have been no serious objection to CLS and I would defend CLS against any attempt to deny it recognition. The question is, are exclusionary membership rules necessary to have a coherent set of beliefs? I don't see why. There's no reason why CLS can't have a coherent set of beliefs based on free acceptance of them rather than imposition by some external authority. I would argue that freely accepted beliefs are much stronger, and the danger posed by administrators enforcing these rules is so great, that intellectual diversity will not only exist, but in fact will be stronger because of the Supreme Court's ruling in CLS, if colleges overturn their cowardly compromises with CLS and similar groups. We should trust the students to select their leaders and follow their hearts.

A similar kind of misunderstanding is offered by Roger Pilon at CATO: “if students, whatever their interests or values, cannot form organizations limited to people who share those interests and values, what’s the point of having student organizations at all?” I have never heard of a student organization where the purpose was to find people who believed exactly the same thing you did and tolerated no dissent. Organizations can have a common interest and values without compelling every member (or leader) to obey a narrow code of beliefs.

Pilon was part of the parade of misguided libertarians on the wrong side of this case, including Jacob Sullum of Reason. FIRE's press release quotes President Greg Lukianoff: "FIRE will continue to fight for the rights of expressive campus organizations to form around shared beliefs and for the principle that the College Democrats have the right to be Democrats, the College Atheists have the right to be atheists, and the College Christians have the right to be Christians."
Yes, the College Democrats have the right to be Democrats, but that doesn't mean they should ban all non-Democrats. Would a registered Republican who decided to become a Democrat be banned? Would someone who criticized a Democratic president be banished? Let's face reality: the CLS decision won't prevent the College Atheists from being atheists. In fact, for the very first time the Supreme Court has decreed that colleges must prevent hostile takeovers of student groups.

Meghan Grizzle of FIRE has an essay on hostile takeovers where she claims that "Justice Ginsburg Disregards Serious Threat of Hostile Takeovers." How serious is this threat? Grizzle cites the famous Central Michigan case (where a student on facebook suggested doing a hostile takeover, but nothing actually happened) and then offers six additional cases "all of which involved students or administrators who called for derecognition of certain student groups, presumably because of their respective hostility toward those groups." In reality, these were six cases like CLS, where student groups refused to follow the standard policies. There's no evidence of "hostility" and they have nothing to do with hostile takeovers. In fact, I dare FIRE or anyone else to give me a single successful example in the history of public higher education where a student group was destroyed or zombiefied by these hostile takeovers. Perhaps someone will help me out by finding a single example, but the fact that I've never heard of one indicates just how rare they are. More importantly, the Court majority declared in the CLS case for the first time that public colleges must stop hostile takeovers from occurring.

Richard Epstein in Forbes claims that Hastings has “a policy that treats CLS as pariahs within its rank” and “second-class citizens.” This misses a basic fact of the case: Hastings didn't want to ban CLS. CLS forced the ban by refusing to obey the rules. Right now, CLS could immediately restore itself as a student organization simply by allowing students to join without restraint and giving its own members the freedom to choose their own leaders.

Epstein argues that this is a disparate impact case: “even if Hastings' antidiscrimination norm is neutral on its face, its impact on a religious group is not. In dealing with associational freedoms generally, the Supreme Court has recognized that the ability to choose your members is critical to your ability to maintain group identity.”

Wendy Kaminer in the Atlantic noted, “CLS appears to have been denied recognition and benefits because state university officials disapproved of its ideological opposition to homosexuality.” In reality, there is no real evidence to support this smear against Hastings. It's quite clear that CLS was denied recognition because they openly refused to follow the rules required of every other student organization.

Kaminer writes, “If Alito's account of the facts is accurate, then the Court has ruled on a case not exactly before it, (and arguably in bad faith), subordinating fundamental First Amendment rights to a particular vision of equality.” Actually, this precisely describes Alito's dissent: he tried to rule on the case he imagined to exist, rather than the facts before him, and did so in bad faith to pursue an ideological agenda, and he subordinated First Amendment rights of students to his particular vision of equality that favors religious groups.

More arguments against the majority's decision are made by the Christian Right. David French of the ADF writes at the National Review, “This forced-funding regime is unique to student organizations on our nation’s campuses. In virtually no other context are citizens directly forced to fund expression they may abhor.” How ridiculous. All taxpayers are forced to fund expression they abhor. Creationists are forced to fund scientific research on evolution. Pacifists are forced to fund press releases justifying violence. Liberals are forced to fund the McLaughlin Group, and conservatives are forced to fund Bill Moyers. Professors are public colleges are funded by taxpayers. Our country is full of forced funding of ideas many people dislike, and it's a wonderful thing.

French writes, “the Court ignores the fundamental reality of an all-comers policy: Distinct student organizations exist at the whim of the majority. If 'all comers' can join, then the majority can override the speech of any student group.” Fundamental reality? The “override” French speaks of, this hostile takeover of a student group, is extraordinarily rare, if it ever happens.

French also wrote for Minding the Campus. And he wrote a column for Townhall.com where French attacks Kennedy's concurring opinion and his declaration that "The era of loyalty oaths is behind us.” French claims that the Supreme Court justices take an oath to uphold the Constitution. But that's a bad comparison. No one is enforcing that oath by, say, removing justices for failing to adhere to a specific theory of constitutional interpretation. The same is true of the military oath, or the Apostle's Creed. No one wants to ban people from voluntarily making an oath about their faith; but when that creed becomes an enforceable oath at a public university, that's a serious problem. French actually worries, "Can the government not condition the receipt of its 'benefit' of tax exemptions for churches on the abandonment of creeds, of statements of faith?" No, because these are private groups, unlike the state-run registered student organizations at public colleges.

Carol Platt Liebau, also at Townhall.com, urges right-wingers to start invading liberal groups, apparently unaware that the court explicitly rejects allowing this.

There were a few comments defending the Supreme Court
Gabriel Arana at the American Prospect defends the Hastings nondiscrimination policy. And Michael Olivas at InsideHigherEd made a thoughtful quick analysis of the CLS case, but I disagree with his suggestion that a "deliberate strategy" is in evidence. Considering Michael McConnell's desperate efforts to backtrack from the "all-comers" stipulation, I can't see much plotting there. I also disagree with Olivas' criticism of the fact that "the Religious Right has systematically sought for many years, including their efforts in Widmar and Rosenberger, to seek full public funding and special pleading with regard to student organizations." I strongly supported the religious right in Widmar and Rosenberger, which were about special restrictions on religious groups, not special pleading. But CLS was about giving special treatment to religious groups rather than equality, and that's ultimately why the Court correctly ruled against it.

Perhaps the most disappointing and overwrought analysis of CLS came from one of my favorite organizations, the Student Press Law Center. Attorney Adam Goldstein wrote, “the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years.” That's just ridiculous. Goldstein gives far too much attention to off-hand remarks in the court's decision rather than the core reasoning of it. It's true that the Court's decision would have been far better if it had expressed the First Amendment association right of students to join a student organization at a public college, but nothing about the case threatens student expression.

Goldstein writes, “it helps no one to assert that public colleges can limit the constitutional rights of students whenever they can rephrase their desire to exclude viewpoints as a desire to include individuals. A college with a different ideological basis could just as easily require all groups that discuss sexuality to include members that oppose alternative lifestyles, and the outcome would be just as counterproductive.” What ideological basis? There's no evidence of any at Hastings. Hastings already does require all groups that discuss sexuality to allow members that oppose alternative lifestyles, and there's nothing counterproductive about the outcome.

But Goldstein's most ridiculous claim comes at the very end: “Students and prisoners are the only two groups with diminished First Amendment rights, and man, today, there's a lot of inmates thanking their lucky stars that they aren't in college.” Does Goldstein actually believe that prisoners have more rights than college students? If there are forced strip searches and imprisonment of college students, I've missed a lot of news lately. And the idea that college students have diminished First Amendment rights is completely wrong.

The rights of college students far exceed those of anybody else. Try exercising your free speech in the workplace (including if you're a public employee) or a shopping mall, and you'll discover just how absurd much of the rhetoric about repression on college campuses really is. American universities are the freest places in the world, and the criticism I make of them when they fall short only reflects the high expectations we should have. Anyone who compares college to prison simply can't be taken seriously.

The CLS decision didn't diminish First Amendment rights for students; it expanded them. It guaranteed the right of association for individuals to join student groups even if they held unpopular views within the group. It guaranteed the right of students to elect their own leaders rather than having them banned by vague “codes of conduct.” And it guaranteed the right of students to be able to speak freely without fear of being punished by banishment from a student group for their opinions. This is a total victory for student rights and the First Amendment.

What amazes me in all of these arguments is that none of the critics of Hastings have ever answered (in any of the briefs or the voluminous writings about the case) what to me is by far the most important question raised by the CLS case: who is empowered to interpret and enforce these codes of conduct? As I've written before about the CLS case, this is the key issue. The students can't enforce these rules by majority vote because these bylaws are designed precisely to overrule majority will. Under the by-laws imposed by the national CLS, the national organization is given total power to interpret the rules; but this, I would argue, cannot be constitutional: a public college simply cannot give an outside group the power to interpret student group constitutions. This leaves the administration to interpret these rules, which raises both the threat of censorship and the extreme difficulty of having the administration decide who is and who is not a Christian.

I've never heard a plausible response of any kind to my objection. It was completely ignored in all of the CLS litigation, and yet I can't think of a more practical or important issue to address in this case.

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