First Amendment Win: Schools may require clubs be open to all students, including LGBT students.

Elizabeth's picture

Free Speech Use It Or Lose It signSome good news from the US Supreme Court this week: Schools do not have to tolerate discrimination. Sound like a radical decision? If you believe the dissenters you'd think that free speech as we know it is about to fall to pieces. Don't be fooled.

The question was whether or not a student organization that intended to exclude gay and lesbian students was entitled to official recognition as a student club, a status which would entitle them to use of school resources (funding, computers, facilities), and use of the school's name and logo. The school is Hastings College of the Law and the student organization is the Christian Legal Society.

Lawyers for Hastings argued that it was simply enforcing a policy that required all official student organizations to be open to all Hastings students. (Actually, as the editorial page of the New York Times points out, first they asserted that the club violated their nondiscrimination policy, then later shifted strategies to focus on the narrower "all comers" policy which says that student clubs must be open to all interested students.) Lawyers for the CLS students argued that the policy in question violated students' rights to freedom of assembly and freedom of religion.

According to Adam Liptak of the New York Times, Justice Ginsburg affirmed the importance of providing educational opportunities for all students, and of encouraging the exchange of ideas between people with diverse views, while in separate concurrences Justices Stevens and Kennedy offered strong statements supporting intellectual diversity and equal opportunity. According to the New York Times, Justice Kennedy asserted that "a vibrant dialogue is not possible if students wall themselves off from opposing points of view." But it is a quote from Justice Stevens's concurrence that clearly sums up the difference between free speech and public funding of discrimination. Liptak writes:

In a separate concurrence, Justice Stevens said that groups that "exclude or mistreat Jews, blacks and women' must be tolerated in a free society. But 'it need not subsidize them, give them its official imprimatur or grant them equal access to law school facilities."

Justices Ginsberg, Stevens, and Kennedy all clearly understand the importance of freedom of speech and freedom of assembly. They also understand the difference between "free" and "subsidized." When Justice Alito writes that the decision is a "serious setback for freedom of expression in this country," he is conflating the freedom to speak with the right to have your speech funded by a public institution. No one is preventing the Christian Law Society students from assembling or speaking, even on campus. I am sure they wouldn't be kicked out of the cafeteria for meeting together to discuss anything they wanted. They are simply not being funded by the college because they do not want to make their meetings open to all interested students.

Student clubs tend to be self-selected groups based on a shared interest or identity and are likely to have the experience of "preaching to the converted". While this is sometimes reassuring it is not always very useful. In this case the Christian Legal Society students likely share an orientation toward Christianity that they want to discuss openly as it pertains to legal issues. In discussing same-sex marriage, for example, I can imagine that the CLS students might want to focus on the finer points of the anti-marriage argument. I can see why that would be challenging if there were people in the room who supported same-sex marriage rights. I can see why it would be difficult if they knew they were discussing the rights of people who are themselves in the room. But having to confront challengers helps us to hone our arguments, and improving critical thinking is an important part of the mission of higher education.

Provided that "all interested students" participate in controversial conversations respectfully I cannot how it is a limitation on speech to allow them to do so. Indeed, contrary to the opinion of Alito, Roberts, Thomas, and Scalia, I'd say this decision expands free speech, instead of restricting it. 

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Resources, including the decision and summary information can be found on the: SCOTUSWiki page for Christian Legal Society v Martinez and on the US Supreme Court docket page for the case. A glance through the amicus brief listings is instructive. 

"Free Speech: Use It Or Lose It" photo by Brian Turner (steakpinball on Flickr) and used under a Creative Commons Attribution 2.0 Generic license

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