Cimino on Campus Citizenship and Associational Freedom

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. Continue reading

Inazu, “Liberty’s Refuge”

My friend John Inazu (Washington University St. Louis) has published Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale 2011).  Warm congratulations to John for this wonderful work on a (before his book) understudied but vitally important liberty, which sometimes is teamed with religious liberty in constitutional cases.  The publisher’s description follows.

This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women’s suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions of our constitutional tradition.

UPDATE: John kindly informs me that he has made the entire text of his book available here for free.  You now have no excuse not to read it!

“They Can Have a Statement of Faith, As Long As They Don’t Act on It.”

George Will has a good column this week on an ongoing controversy at Vanderbilt University. According to Will, Vanderbilt has placed the Christian Legal Society (CLS) on probation because CLS requires that its members adhere to specified religious beliefs, including the belief that homosexual conduct is sinful. This requirement violates the University’s nondiscrimination policy, which forbids a student organization from discriminating, among other reasons, on the basis of religious belief. Actually, that’s not quite right. Apparently, a student group may require in theory that members share the group’s beliefs; the group just cannot enforce the requirement. In the words of one Vanderbilt administrator, groups “can have a statement of faith and conduct of behavior, and this in itself is not discriminatory. But they would not be able to deny or remove any member based on their Code of Conduct. They can have a statement of faith as long as they don’t act on it.”

Judging from reports, Vanderbilt has adopted an all-comers policy of the sort the Court upheld two terms ago in CLS v. Martinez. Assuming Vanderbilt applies the policy in a neutral way, the policy seems constitutional under current law. But given Vanderbilt’s stated goal of promoting diversity on campus, the policy is very misguided. What’s the point of allowing students to form a religious organization – or an atheist organization, for that matter – but requiring the organization to open its membership to people who don’t share its beliefs? Does it make sense to require an environmentalist group to admit members who don’t endorse environmentalism, or an Orthodox Jewish group to admit members who refuse to keep kosher? The Vanderbilt policy, as Will points out, does not promote diversity on campus; it promotes conformity. Of course, Vanderbilt could argue that certain beliefs are unacceptable for its student groups to have, and that it is denying CLS recognition for that reason. That would be coherent; but it is not what Vanderbilt is arguing.  – MLM

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