Chapin Cimino (Drexel University – Earle Mack School of Law) has posted Campus Citizenship and Associational Freedom: An Aristotelian Take on the Nondiscrimination Puzzle. The abstract follows.
Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate — a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university anti-discrimination policies, which can cost them official campus recognition. Thus, in the name of one important value, schools trample on another: campus citizenship. Both nondiscrimination and campus citizenship are values of equality.
At this moment, whose notion of equality is to prevail? Is it the university’s, taking the form of a blanket nondiscrimination policy? Or is it the student group’s, taking the form of the desire to maintain both associational freedom and campus citizenship?
Current First Amendment doctrine is ill-equipped to resolve the tension between these competing values, or “ends.” It is ill-equipped because any traditional First Amendment test is written to consider only one “end” — the end of the regulator. This was true prior to the Supreme Court’s June 2010 decision in Christian Legal Society v. Martinez. However, the Court’s opinion in CLS made the situation worse by applying the simplistic and unhelpful “limited public forum” test. The limited public forum test may have been the least common denominator between competing doctrines, but choosing it was a mistake.
This Article takes on several tasks. It explains the notion of campus citizenship, showing how the goal of equality on campus actually has two aspects to it — the equality of the students potentially excluded from a group, and also the equality of the group that is excluded from the campus. It shows how and why current doctrine, but especially the limited public forum doctrine, are not up to the task of resolving the inherent conflict in this dual conception of equality. Finally, it offers a new (and neo-Aristotelian) means-ends analysis courts should use in this context in order to account for the dual ends of these cases: nondiscrimination and expressive association.