A Game of Give and Take

There's a fascinating Supreme Court case on the horizon now. The Court recently approved cert for Christian Legal Society v. Martinez, a case that deals with whether a public university - in this case, the University of California's Hastings School of Law - can require a student group to accept all students who wish to join as a requirement of receiving funding from the school. The Ninth Circuit recently ruled that Hastings can enforce its policy if the group in question is receiving student funding. A similar case in the Seventh Circuit involving Southern Illinois University's law school went the exact opposite way. This split essentially forced the Supremes' hand.

In both cases, the CLS is seeking the right to deny membership - or at least leadership positions - to gay students who don't conform to their view of Christianity. Both universities do not allow such discrimination from their student groups.

There are a bunch of legal issues to deal with in this case. The CLS claims that the school is infringing on their First Amendment right to free association. But the CLS' position is somewhat convoluted - they think that the school's anti-bias regulation is okay, but they want an exception for religious groups. Hastings, unsurprisingly, sees that as giving religious groups special treatment - which would be strictly forbidden, of course.

Public universities are clearly required to extend First Amendment protections to all their students. Realistically, we're talking about whether any student groups - founded and administered by students - can choose to discriminate and still receive funding. (Note that the group's right to meet under its own terms is not at issue here. The funding is the issue.) CLS points out that the Court, in the 1972 case Healy v. James, ruled that refusing to recognize a student group was a violation of the group's First Amendment rights (ironically, the student group in question in Healy was the antiwar group Students for a Democratic Society, making this perhaps the only time in recorded history conservatives have ever supported SDS).

On top of this are the myriad anti-discrimination laws that put the University in kind of a catch-22. On one hand, their policies say that they can't allow discrimination against gay people, so they can't fund CLS. But they can't discriminate against a group for its religious beliefs, so they have to fund CLS. Without Court guidance, then, they're stuck in permanent Vizzini mode, clearly unable to choose either glass of wine.

Predictably, Americans United is stumping for the universities here, arguing that colleges should have the right to refuse public subsidies to groups that discriminate. Brayton disagrees, saying that groups' right to self-determination and free association ought to be preserved.

My gut instinct is to side with Brayton and CLS here. It's important to note that the university isn't doing the discriminating here - the students are. These are essentially private clubs and the members of these clubs ought to have the right to admit who they want and keep out who they want. As for the funding issue, I'm hesitant to allow universities to deny funding based on the ideology of a particular student group. As Brayton points out:

I agree that this means some students are compelled to support clubs that won't admit them, I just don't think this is a big deal. In fact, it's true of any student club that is based on a common set of ideas. By the usual funding arrangements for student groups -- usually a small amount of money is given to each club out of student activity fees or some other similar fund -- Democratic students are "compelled" to support Republican student groups and vice versa; white students are "compelled" to support Hispanic and Asian student groups; anti-environmentalists are "compelled" to support student environmental clubs; and so forth.

All student groups that are formed on the basis of a common set of beliefs -- whether they advocate environmentalism, a political party, an ideological position like Students Against Sweatshops, etc -- are allowed to restrict their membership to those who share those beliefs. I see no reason to treat religious students groups any differently.

The best policy, of course, would be to abolish activity fees for the students and have students donate to the groups they wish to support. If the university does choose to do the disbursing itself, though, the next best solution is one that ideally disburses funds based on need alone, and not based on ideology. That said, I don't necessarily blame the university for pursuing this litigation - they'll lose, but the Court ruling will give the University the plausible deniability it needs to say "we're not supporting discrimination, the Court made us do it."

One interesting note, though. The conservative position boils down to this: ideological restrictions on money disbursement are wrong. Put differently, you can't complain if money goes to things with which you don't agree. If followed consistently, doesn't that position completely nuke the motivation behind amendments currently in Congress that would deny federal funding to anyone who buys an insurance plan that covers abortion?