shaping up to be a very important scotus case touching on speech, association and discrimination

[paulsby]

prof. volokh's take...
(www.volokh.com)

The Court has agreed to hear Christian Legal Society v. Martinez, and to decide whether public universities may open up various student group benefits — funding, access to classrooms, and the like — only to groups that don’t discriminate based on race, religion, sex, sexual orientation, and the like.

1. To begin with, I should say that I agree with the Court’s Boy Scouts v. Dale decision: Private groups often do have the First Amendment right to discriminate in choosing their leaders (and their members, though Dale didn’t focus on that), when barring such discrimination would interfere with the groups’ ability to spread their message. I also think that, as a policy matter, public universities should leave groups — even those they support — free to discriminate based on criteria that are relevant to the group’s mission, such as religion, sexual orientation, and, where appropriate, race and sex. Allowing such groups would do more for the cause of genuine diversity of perspective than would any attempt to force integration of those groups.

2. But the question is not just whether the groups have a constitutional right to expressive association — it’s whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.

Let’s set antidiscrimination rules aside for a moment, and consider a university rule that gives benefits only to groups that are run by students. I take it that this would be pretty clearly constitutional, because it involves the university’s preserving university resources for the benefit of students. Yet of course groups have a First Amendment right to select nonstudents as their leaders, and may have good reason to do so. They have a constitutional right to associate — but not a constitutional right to get government benefits for their association.

Or consider a university rule that requires student groups to be democratically run, with each member being given a vote. That too, I take it, would be constitutional. Groups have a First Amendment right to organize themselves in other ways, but a public university may choose to subsidize only democratically run groups.

3. Likewise, let’s turn to fields other than expressive association. Though the Court has recognized the right to get an abortion, it has expressly held that states need not allow abortions in state-run hospitals. People have a constitutional right to send their kids to private school, but states may choose to fund only public schools. People have a constitutional right to spend money to elect candidates, and to lobby the legislature and the public, but the government may decline to subsidize such activities using the charitable tax exemption. (Tax-exempt funds generally can’t be used for electioneering, or for a substantial amount of lobbying. You can find cites for this and most other legal assertions I make here in my Stanford Law Review article on this subject.) The government need not open its property for constitutionally protected solicitors of charitable contributions even when it opens it for leafletters.

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