Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I've written many times over the years about a series of lawsuits all over the country concerning the formation of student groups on college campuses and whether those groups can get official recognition while setting their own standards for membership. Some universities refuse to recognize religious clubs that have exclusive membership, while others allow such rules.
The courts have split on the issue, with the 9th Circuit upholding university rules prohibiting such standards and the 7th Circuit striking down identical regulations, both involving chapters of the Christian Legal Society in law schools. The Supreme Court has now granted cert in the 9th Circuit case and will, presumably, settle this issue once and for all. CLS has a webpage up with all of the pleadings in that case as it's moved up the courts.
My position on this issue tends to be at odds with most of my fellow advocates of church/state separation. In a press release, Americans United is urging the court to rule in favor of the college. My friend Barry Lynn, for whom I have enormous respect, says:
"This case is about fundamental fairness. If the student religious group wins, it will mean some students will be compelled to support clubs that won't even admit them as members. That's just not right."
I must disagree. Well, 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.
This is a logical result of the Court's open forum analysis. The university establishes an open forum by allowing students to form groups and get recognition. A student who is not allowed to join one group has the option of forming his own group and getting all the same benefits. A non-Christian can form their own student group; I see no reason why a Christian group should be forced to grant them membership (or an atheist group be forced to admit a Christian either).
I think I'll invite Barry Lynn on my radio show (he has his own show, airing on the same station) and we can debate the issue.
Politics
Comments
I agree as a matter of principle, that student groups should be able to determine who can or can't join their clubs.
My concern is whether these clubs really get a fair shake in terms of the funding they receive from universities. That aspect of it should most definitely be examined very closely.
But sure, I always err on the side of more free speech and more freedom of association. As long as they are prepared for me to call them bigotted fuckheads if they are deserving of such. =)
And any student group that tries to prevent any other student group from forming, or gets caught interfering (like some go around erasing 'sidewalk messages') should automatically lose their uni funding.
Posted by: FastLane | December 11, 2009 9:12 AM
I think both sides have an arguable position on this matter given today's accommodationist environment. I find that uncommon in today's public square, where one side normally makes flawed arguments.
Posted by: Michael Heath | December 11, 2009 9:20 AM
I tend to agree, but couldn't there be egregious abuses by this standard? Does a religious group have the right to exclude gays? What if a racist group excludes membership to those who disagree with their belief that different races should not associate, automatically excluding those of a different race?
Posted by: noel | December 11, 2009 9:29 AM
As I understand, the problem is due to the US Code prohibitions against discrimination dating from the 1964 civil rights act (and modifications) for any organization getting federal aid. This usually results in legal boilerplate for student groups having to say they don't discriminate on "race, sex, color, creed, handicap, national origin, veteran status" et cetera. So, the forum isn't completely open; it's specifically open to groups which comply with federal (and sometimes state) nondiscrimination law.
The apparent religious doctrinal discrimination by the CLS looks like an interesting can of worms.
Posted by: abb3w | December 11, 2009 9:38 AM
noel wrote:
Yes, I think a religious group does have a right to exclude gays (a related issue that has been working its way up the courts as well). And whether a group is racist or not, they often do set racial limits. There are lots of university student groups just for black or Hispanic or Asian students, etc.
Posted by: Ed Brayton | December 11, 2009 10:22 AM
In my experience, they tend to be open to all students, but in practice tend to be monolithic. (On the other hand, if you're the SO of someone in the group, you tend to be accepted anyway; it's the loners that get subjected to social pressure).
Posted by: gwangung | December 11, 2009 10:30 AM
I have to disagree with you, ed. We are not talking about restricting beliefs, we are talking about restricting actions. The group may certainly believe homosexuality is a sin for whatever religious reasons they want. The school is not removing their funding for their beliefs, they are doing because as a result of their beliefs they are restricting their membership by not allowing homosexuals, who may believe exactly the same things they do, in their club. What if they didn't allow women to join because they believed man had dominion over women and women should never sit in judgment of men, as some Christians do? Would that still be okay?
Posted by: David Thompson | December 11, 2009 11:16 AM
I don't see this as a particularly close call: Freedom of association means just that. The complicating issue is whether the student government is considered as representing the "state" in a church-state analysis.
I would argue against. In most state schools, I don't see most students equating the student government's actions with those of the school administration. Also, the funds being distributed to groups are the student's money, not the state's.
The 9th Circuit is crazy, as usual. Their argument is about as good as the other side can do, but it is nowhere close to convincing.
Posted by: kehrsam | December 11, 2009 11:21 AM
David Thomson wrote:
Okay in what sense? Would I like it? No. But that isn't the question. The question is whether they should be allowed to do it and the answer is still yes. If you're going to allow groups to restrict their membership based on ideology - and we do, as in political or ideological groups like environmental or Democratic or Republican groups - then you have to allow them to define their own terms of association. If someone is shut out from that, they are entirely free to start their own group and set their own membership criteria.
Posted by: Ed Braytons | December 11, 2009 11:28 AM
I think that the notion of neutrality toward religion means that religious groups must be treated just like any other group--receiving no specialized privilege, nor suffering any specialized constraints. So while I'm generally uncomfortable with religious organizations of any kind receiving funds from government, as creeping up on establishment, the reality is that there are many student clubs that both restrict membership and receive funds.
I'm thinking particularly of honor societies. I'm the advisor for an honor society, for membership in which most students do not even qualify. And yet it can receive funds just as any other student organization can, so students are forced to support an organization they cannot join. The only reason for treating a religious organization differently is on the basis of it's religious identity, which I don't find legitimate.
(Disclaimer: I teach at a private college, so there's actually no constitutional issue in my case. But I am assuming that honor societies at many, if not all, public universities are eligible for such funding.)
Posted by: James Hanley | December 11, 2009 12:15 PM
Is comment #9 someone pretending to be Ed Brayton or did Ed just mistype his own name?
Posted by: Michael Suttkus, II | December 11, 2009 12:17 PM
Question: Would the College Republicans allow a registered Democrat to join? Could an Asian person join the Hispanic club?
Perhaps, if the clubs want university recognition, the answer to all these questions should be "yes". Have a Christian Legal Society, but don't make being a Christian a requirement (how many non-Christians are going to join anyway?)
I have mixed feelings about all of it, to be honest.
Posted by: James Sweet | December 11, 2009 12:35 PM
Ed,
As a policy matter, I agree, but the question isn't what should universities do, it's what restrictions on funding are constitutional. See Eugene Volokh's analysis for a more complete explanation:
http://volokh.com/2009/12/11/why-no-discrimination-based-on-religion-conditions-for-government-benefits-arent-viewpoint-discriminatory/
Posted by: Tom | December 11, 2009 12:56 PM
I was active in an environmental group while in college and, yes, we received some funding and office space from the University activity fee (we also did our own fund raisers). But we also allowed in anti-environmentalists. A group of Ronald Reagan supporters joined the club and attempted to disrupt our activities.
However, the bylaws of the group said that it operated on consensus. So, while they could stop any new activities or programs from starting up, they could not stop any that were already in progress. They got frustrated that they couldn't out vote us after a few months, but we did get them to help our recycling program in the meantime.
Posted by: ruidh | December 11, 2009 1:00 PM
Mixed feelings are irrelevant. It has to go one way or another. We don't have the right to agree to disagree; we must decide.
There are dozens of persuasive examples of Ed's evidence in our society. Little league gets funds, but only kids of a certain age can join. Welfare is paid only to those who qualify. Free and Reduced lunch, ditto. In many states voters must choose a party to identify with in the primary and are legally barred from crossing.
Sure the college-fee-funding bottleneck 'purifies' the support to a particular set of contributors and beneficiaries. Sure I'm uncomfortable with non-inclusiveness as a nonnegotiable condition of membership. But consider the opportunities for legal civil disobedience in this situation, the lovely chances for protest, all the books that could be written. Most of these exclusionary standards are invisible--have you accepted Jesus? Then you're welcome. Gay folk need not apply. As such they are (I think) legal in this context, but no less stupid and ridiculous.
And the opposite conditions apply, in spades. The organic-emo-green-vegan club...the Young Libertarians...Fans of Arsenal Football...etc. So they look at you funny when you show up at the Vegetarian Colloquy with a bag full of Big Macs. So what. It's a prickly and occasionally hostile world, and free speechers might get whipped by some guys dreadlocks or criticized for being insufficiently orthodox on the World Trade Organization. Big whoop.
The insistence on speech codes and safe environments and the characterization of "hate speech" is a major loophole in the consistency of civil liberties arguments on the left. Sure, right-wing morons are going to exploit every nook and cranny of civil liberties anyway, but consistency should be the rule, not response.
ice9
Posted by: ice9 | December 11, 2009 1:04 PM
Uh... So as a software engineer with no judicial or political ambitions, I am compelled to have a strong and specific opinion on each and every case before SCOTUS? Please...
Those examples are all irrelevant, because there are legitimate and compelling reasons for those restrictions. (I realize the L&C test applies to something completely different, but the wording is convenient). Welfare doesn't even make sense if you give it to everybody. On the other hand, a Hispanic club open to people of all ethnicities still functions the same way.
I don't really grasp your example about showing up at the Vegetarian Colloquy with a bag full of Big Macs. I think that it is unambiguous that ideology-based clubs ought to be allowed. The question is whether ideological conformity (or racial conformity in some cases) can be made a condition of membership and the club still gets university funding. It's a tough call in my book.
As I said, if they want to have a Christian Legal Society, but let people join even if they aren't Christian, I have no problem with that whatsoever.
Posted by: James Sweet | December 11, 2009 1:12 PM
Yup. As a software engineer you have to have an opinion--if you plan to make a decision. The point is not that it's your decision so much as it is going to be made, made up-or-down, and the choice will apply. So splitting the difference isn't constructive. I'm not accusing you specifically but there is a tendency to wave off civil decisions as points of disagreement--perhaps the extremest example would be our Minnesota Senate election when lots of people declared that they didn't like either Franken or Coleman--but their grounds for dislike were typically false dichotomies, like "Franken's not serious and Coleman supported Bush." Of course they can vote as they like, but voting on bad grounds or wrong facts is often considered bad citizenship.
Mixed feelings are irrelevant in a binary question. I liken it to a jury room, though of course you can't opt out of a jury deliberation very easily. I like the fact that, at the apex of participation, we are all faced with such up-or-down decisions and at that time must process the elements of compromise or move to an Idaho compound and fly the flag upside-down.
ice9
Posted by: ice9 | December 11, 2009 1:30 PM
I find the student legal group's position hypocritical in the extreme. We have a Christian legal club claiming that they're being discriminated against because they won't allow non-Christians to join and that all persons who pay into the student activity fee fund should have to pay for their bigotry.
Now these same Christians also don't want the government to pay for all sorts of things because they would have to involuntarily support those things with their tax money.
Hypocrisy is a sacrament.
Posted by: TomTallis | December 11, 2009 1:36 PM
Well it's good you aren't accusing me of anything, because I am most certainly not doing that. I have strong opinions on many issues, and despite being an atheist I have made a number of anti-relativist blog posts in the past.
My own mixed feelings should not be read as an endorsement of other people having mixed feelings, i.e. I am not pitching some kind of phoney middle ground. You are right that it is a binary decision that ultimately needs to be made. I am merely saying that I'm not sure where I personally stand on this one. And I think that's okay.
If you were wondering why I bothered to say that ("Hey, look at me, I'm ambivalent!"), the majority of my original comment was composed of questions I felt were relevant in answering this, i.e. whether there is precedent or common practice in regards to other clubs with exclusionary criteria. (Of course, because the First Amendment makes religion an area of special concern, I could still conceivably adopt the position that other exclusionary criteria are okay, but not those having to do with religion... but the question gets really easy if other clubs are not allowed to/typically don't have secular exclusionary criteria)
If I were to adopt a strong stance on every single conceivable judicial or policy question, by virtue of each day being only 24 hours long, I would necessarily have an opinion borne out of ignorance on a great many of those issues. Better to acknowledge that oneself is not qualified at present to decide.
Posted by: James Sweet | December 11, 2009 2:14 PM
We have a Christian legal club claiming that they're being discriminated against because they won't allow non-Christians to join and that all persons who pay into the student activity fee fund should have to pay for their bigotry.
As I understand, the legal problem is simply at "won't allow non-Christians to join" (and to further add injury, have a test limiting which types of Christians can join). This is religious discrimination; under the Civil Rights act, schools which receive federal funding can't discriminate on religion, nor allow their agents to do so.
The funding question may be incidental. These non-discrimination requirements get imposed (at least locally) even on student groups which get no funding, but which are simply allowed to reserve classroom space in off-hours to hold meetings.
Does the group have a right to exist? Absolutely. But having that existence officially recognized by the school comes with strings tied. The CLS is free to exist, to associate exclusively, and even to discriminate religiously; they just can't get official sanction while they do from a school getting federal funding (and thus constrained by civil rights law).
Posted by: abb3w | December 11, 2009 2:18 PM
ed,
"Okay in what sense? Would I like it? No. But that isn't the question."
Sorry for not being clear. Okay, in the sense of whether or not it's okay to discriminate against women and still receive funding from a government institution.
"The question is whether they should be allowed to do it and the answer is still yes."
Actually that's an over simplification of the issue. The question is whether or not they can discriminate AND get funding. To cut them off from funds for their beliefs is wrong, but cutting them off for acting on those beliefs, contrary to the rules that other clubs follow, constitutes an exeption based on religion. It makes the funding for these groups an entitlement. Just as in all situations where a group or business recieves government funds, there are criteria that must be met in order to qualify. I think insisting they respect the basic constitutional rights of individuals is not an unreasonable rule.
"If you're going to allow groups to restrict their membership based on ideology - and we do, as in political or ideological groups like environmental or Democratic or Republican groups - then you have to allow them to define their own terms of association."
They can, and do, and I support that. But they aren't entitled to government funds if they discriminate or violate the rights of others. That was my point with my example regarding groups that won't allow women to be members. We are conflating belief with actions here, and I think we need to make the distinction. Cutting off their funds in no way infringes on their right to believe or choose their membership requirements. It just means they don't get to do so with the schools money.
If someone is shut out from that, they are entirely free to start their own group and set their own membership criteria.
As an aside, you would think that a group that represents a religion that is so focused on saving souls and the people that they occupy would not discriminate, with the hope that new members can be won over. In a way they are not only violating the schools policy for membership, they are violating their own religion's policy as well.
Posted by: David Thompson | December 11, 2009 2:38 PM
Ed Brayton: And whether a group is racist or not, they often do set racial limits. There are lots of university student groups just for black or Hispanic or Asian students, etc.
You may need to read the fine print.
While the stated purpose of a group may be to provide a voice for the interests of [insert ethnicity] (EG), and might have weasel-wording so as to allow them to "restrict membership based on an ability to perform the activities related to the organizations purpose", they "will not restrict membership and/or activity by reason of age, citizenship, color, disability, gender, race, religion, national origin, political affiliation, sexual orientation, or status as a disabled veteran or veteran of the Vietnam eras". The non-discrimination language requirement is incredibly tightassed; the local Science Fiction club once ran into trouble with a renewal due to adding "home planet" in the non-discrimination terms. Of course, this is just UVA; perhaps someone else can provide an explicit example from another school where ethnic clubs are allowed to restrict membership accordingly... but I'd like to see that example.
Posted by: abb3w | December 11, 2009 2:41 PM
ice9, I generally like your comments, but I believe you're off-target today.
No, they mean that you don't have enough information yet to make the decision. Ambivalence is just fine, as long as one doesn't absolutely positively have to make the decision right now, and since we most often do not have to do so, our ambivalence is a signal that we should delay the decision until we have more complete information.
I don't think that technically counts as a false dichotomy, but setting aside fine points of logic, these are entirely legitimate reasons to want to not vote for someone. And unless I'm mistaken, there were other alternatives. One would be not voting, because neither candidate has convinced me he's worthy (it's a bit much to say a citizen is required to vote for someone they despise, just so long as they have cast a vote). And I know there was at least one third party candidate, so for, it seems 15% of the public at least, it clearly wasn't a binary decision, and their dislike of both Franken and Coleman was very relevant to their decision-making.Posted by: James Hanley | December 11, 2009 2:48 PM
Ed, as several others have pointed out, your whole premise is off. These rules about open membership apply to all University groups. There might not be many white students who want to be in the African-American Student Alliance, but you can't keep them from joinign and usually a few do in fatc join for various reasons. The concern for thsi has always been that large group would attempt to hijack small groups that they don't like (particularly a concern for Muslims and Atheists, but also pagans and such), but you can't restrict membership.
Posted by: Ace of Sevens | December 11, 2009 9:17 PM
There have been similar issues in the UK where student Christian Unions in some universities have been disaffiliated for failing to meet the requirements set by their Students Union. For example, the CU at my university turned out not to be having democratic elections to its committee. Instead they took nominations from all members and took it to un-named "elders in the community" to seek their advice. No surprises then that there had never been a female president of the CU.
When the Students Union told them to straighten it out, they claimed religious persecution. The SU told them that by becoming affiliated they had agreed to a set of rules, if they chose to break them the SU was under no obligation to maintain the deal.
As representatives of the entire student body they cannot affiliate clubs that would exclude any of their students or would treat students differently based upon race, creed, gender, sexuality, disability, age etc.
Posted by: Rob Wallace | December 12, 2009 6:19 AM
James and James are right. I was off. Dumb argument.
It annoys me (repeating other folk) that we enable the Christianist victimhood tactic by hairsplitting over undefinable characteristics of membership in groups. It only takes a few seconds to attackers to reduce such measures to the absurd, and generally speaking they're right. It's of course bs to argue that, say, gays are being put in a protected class of people who are especially protected from getting dragged behind pickup trucks, but the aggrieved whinging from jesus people really grinds my oats, especially when about half of them are jesus people because their mom wouldn't let them be anything else. I guess the real solution would be to get the lesbians to man up and stop trying to get the world to protect them. (No actual lesbians were harmed in the making of that hyperbole.)
PS "Hey! Look at me! I'm ambivalent"--perfectly sums up the suddenly aggressive Swissitude of members of the majority when argued into a corner. They graciously offer to call it a draw when they have a sword to their neck. Perfect.
ice9
Posted by: ice9 | December 12, 2009 9:26 AM
I think the point is that in principle a democrat can join a republican club, a white person can join an african american club, etc, and that's mandated by the schools. What the CLS is pushing is that even in principle, people cannot join their clubs because of some aspect of their nature. I would not support it if there was a african american club that did not, in principle, allow whites to join, despite the de-facto status.
Posted by: Philip Kahn | December 13, 2009 8:37 PM