Wednesday, May 04, 2011

How the Arizona Legislature Accidentally Banned Religious Discrimination on Campus

Sometimes a legislature doesn't understand what it's doing. But it takes genuine stupidity for a legislature to do the exact opposite of what it intended. Yet that's what the Arizona legislature appears to have done.

The right-wingers who run Arizona seem to have been trying to get around the Supreme Court's ruling in CLS v. Martinez that refused to require public colleges to recognize anti-gay religious student groups that discriminate based on belief and prohibit anyone who isn't homophobic from running for a leadership position. Unfortunately for the conservatives, the wording of the Arizona law itself doesn't do this. In fact, the law does the exact opposite and requires colleges to enforce the non-discrimination rules for student groups that CLS v. Martinez merely permitted universities to follow. That's because the law doesn't explicitly declare that discriminatory student groups are allowed. By contrast, the law explicitly bans religious discrimination: “A university or community college shall not discriminate against a student on the basis of the student's religious viewpoint, expression or belief.” Since being banned from a student group is a form of punishment, no student organization at a public college can discriminate based on religious beliefs.

Here's what the law requires under 15-1863 B, “A religious or political student organization may determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities.”

That's all quite lovely. But let's go through this carefully:
“ordering the organization's internal affairs”: this doesn't really mean anything, since student groups always get to order their internal affairs.

“selecting the organization's leaders and members”: selecting leaders is non-controversial. No one opposes letting students in a group select their leaders. The only issue in CLS v. Martinez was banning certain people from running for election because of their views, which this doesn't change. Selecting members is a much more controversial issues, since student groups normally don't get to select their members. But remember, they would only be able to exclude members based on the commitment to the group's mission, not based on their religious views. A student can be committed to a group's mission without agreeing to every belief espoused by the group.

“defining the organization's doctrines”: again, nothing controversial here, student groups always get to define their doctrines.

“resolving the organization's disputes”: This is a troublesome clause because it makes absolutely no sense to say that organizational disputes should be resolved by people in the group committed to the mission of the group. Such organizational disputes are between people in the group who almost invariably claim to be committed to the mission of the group, and therefore must be resolved by the administration.

So, the Arizona legislature was afraid to be honest about what conservatives want on campus: discriminatory religious student groups. As a result, they passed a law that failed to impose this on colleges.

In fact, another provision of the same law does the exact opposite. According to 15-1862 A, “A university or community college shall not discriminate against a student on the basis of the student's religious viewpoint, expression or belief.”

The key question is, can a student's exclusion from a student group be regarded as a form of penalty? The answer, I believe, must be “yes.” If a university decreed that a student could not participate in a student group because of his or her views, it would clearly be regarded as a punishment that could not be allowed without evidence of wrongdoing. If a student organization makes the same decree banning certain students from the student group, it must also be regarded as a penalty. The reason is simple: legally, student groups are legally a subset of the university, and the university has certain legal responsibilities for their actions as a student organization.

If exclusion from a student group based on their religious views is a form of punishment, then it cannot be allowed. All student groups must allow anyone to join, regardless of their religious views.

It could be argued, I suppose, that Section 15-1863 B was intended to be an exception to 15-1862 A, and therefore supersedes it. This is a difficult argument to make. Normally, the provisions in a particular law are held equal. Section 15-1863 B include numerous new rules that protect the rights of student groups, and nothing in them is really incompatible with 15-1862 A. There have been some baseless fears that anti-discrimination rules might be used to overturn the decisions of students in religious student groups, and 15-1863 B would resolve that. All that 15-1862 A does is take away the discretion of college administrators to allow discriminatory student groups, which isn't incompatible at all with 15-1863 B.

It could also be argued that Arizona legislators had a clear intent to allow discriminatory religious student groups on college campuses, despite their failure to pass a law doing this. I don't share this view of the law. The law is what it says. I don't care if Arizona's legislators, like many people, misunderstood the Supreme Court's ruling in CLS v. Martinez and don't understand what religious freedom means.

The law is what it says. And in Arizona, the law says that students at public colleges cannot face discrimination based on their religious views, and that must include participation in student organizations.

Crossposted at DailyKos.


Anonymous said...

My name is Jeremy Tedesco. I am an attorney with Alliance Defense Fund, an Arizona-based religious liberty organization. I am familiar with the Arizona law Mr. Wilson addresses in this post. In fact, I recently defended the law against attacks from the American Counseling Association prior to its passage. Go to: I am writing to correct some (but by no means all) of the errors in Mr. Wilson’s post.

Mr. Wilson’s argument is based on the false premise that a private student group’s decision to exclude a prospective member is an action taken by a state university. This is wrong. Student groups are private associations that exist on campus. They are not arms or subsets of the university. In fact, almost every public university in the country has a written policy expressly disclaiming responsibility for the actions and views of student groups. And it is painfully ironic that Mr. Wilson apparently considers it wrong for students to selectively choose co-religionists for membership in a religious group. That is not wrongful “discrimination” but rather the very essence of First Amendment associational rights.

Similarly, Mr. Wilson’s conclusion that the Arizona law actually prohibits religious student groups from selecting members or leaders based on their religious beliefs is directly contradicted by a provision of the law he ignores. Indeed, directly after Section 15-1863(B) – which specifies that religious and political student groups may, among other things, select their members and leaders based on their religious or political beliefs – the law states unequivocally: “A university or community college may not deny recognition or any privilege or benefit to a student organization or group that exercises its rights pursuant to subsection B.” Thus, Mr. Wilson’s misinterpretation of the law is rejected by words in the statute he simply left out of his post.

Mr. Wilson’s post is inaccurate. The Arizona law guarantees the right of student religious organizations to receive access to all the benefits of being a recognized student organization while still maintaining their faith-based membership and leadership restrictions.

John K. Wilson said...

I would like to thank Mr. Tedesco for making such an extensive response to my argument.

I think that Mr. Tedesco seems willing to acknowledge that if public colleges bear legal responsibility for their student organizations, then my argument is right. And I am willing to acknowledge that if student groups are private associations, then the ADF argument and interpretation of the law is correct.

So let's address the key question: are student organizations at public colleges actually private associations?

Mr. Tedesco argues, “Student groups are private associations that exist on campus. They are not arms or subsets of the university.”

This is not true. Student groups legally are subsets of the university. They must apply to the university for recognition, and the university requires student groups to follow its rules in order to maintain their existence. If a university declines to recognize a student group, that organization ceases to exist. Its members may reconstitute it as a private association outside the university's control (and thereby be free of both its benefits and limits), but it no longer would be a public university's student group.

Another proof of my point: if you sue a student organization, you are suing the university. Its lawyers will take up the case. If someone sues the Christian Legal Society at the University of California at Hastings as an entity, they are suing the public university, not a private association, nor the national Christian Legal Society.

In CLS v. Martinez, the Supreme Court ruled, “this case fits comfortably within the limited-public-forum category.” A limited public forum case applies almost without exception to public institutions. It makes little sense to speak of a private organization as if it were a public forum. If Mr. Tedesco can cite for me any case law from the Supreme Court declaring that student groups at public colleges are private associations, I would love to see it.

Public colleges disclaim responsibility for the views of student groups precisely because they have legal authority over them. This is done for public relations reasons, not legal purposes.

The fact that we protect the freedoms of student groups from repressive administrative action does not turn them into private associations. Instead, it reflects the fact that these are public institutions that should defend individual liberties and prevent government bureaucrats from violating rights.

I did not mention Section 15-1863(C) because it's not very important. If 15-1863(B) is the law, then obviously colleges can't punish student groups for following it. But colleges must also obey 15-1862(A), banning discrimination based on religion. Here's the only way I can reconcile this: religious student groups can require members to agree that they are “committed to the organization's mission,” but they can't discriminate based on religious beliefs.

Obviously, Arizona's legislature could pass another law clarifying all this and explicitly permitting religious discrimination on campus by student groups. Assuming that such a law advocating discrimination was constitutional, then Arizona's lawmakers could achieve their goal. But until then, the law says that religious discrimination is illegal. Since student groups are part of the public college, they must follow these rules.

Anonymous said...

Thanks for responding, Mr. Wilson. While there is not enough space to engage you on all the points raised in your response, I did want to reply to the one request you made of me, to wit: “If Mr. Tedesco can cite for me any case law from the Supreme Court declaring that student groups at public colleges are private associations, I would love to see it.”

In both Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), and Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995), the United States Supreme Court relied on, among other factors, university disclaimers of student organizations’ speech and actions to find that the student organizations at the universities involved in those cases were private groups that acted and spoke independent of the universities. As the Supreme Court noted in Southworth, student organization expression “springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors.” 529 U.S. at 229. Student groups are private groups, not creatures of state universities.