Club Membership on College Campuses: An Argument for Discrimination
A recent article in the University of Alabama student newspaper, The Crimson White,1 stirred up controversy when it questioned the recruitment practices of a large segment of the university’s sororities. According to the article, a stellar candidate was denied membership in many of the sororities she rushed simply because she was black. Despite the recruit’s 4.3 high school GPA, excellent marks during the rush process, and the fact that her grandfather was an Alabama trustee, no “white” sororities extended an offer of membership to her. Equally shocking was the revelation that in the history of the Panhellenic sorority system, there has been only one black member.
In 2013 exclusionary behavior such as this, refusing a bid to a black girl, is undoubtedly an anachronism and my reasoned judgment is that it is not the way most sorority systems behave (or should behave). But what if sororities, or student membership associations in general, believed that discrimination on the basis of race was central to their group purpose? Because it is so rare to see such blatant discrimination in the über politically correct higher education environment, few people would even think to consider whether a sorority should be able to legally discriminate against blacks. Besides the fact that it is poor form from a social and moral standpoint, why shouldn’t private clubs made up of college students be able to discriminate on the basis of race? How is the right to freely associate, a First Amendment right entitled to the most rigorous protections, implicated in this debate?
The right of American citizens to freely associate, first explicitly recognized in NAACP v. Alabama ex rel Patterson, flows from the First Amendment, which guarantees freedoms of speech, press, and peaceful assembly.2 One of the most important reasons the First Amendment exists, is to protect unpopular speech. Through free association, persons sharing a common unpopular belief may draw strength from another, otherwise afraid to voice their opinion, and this bond may facilitate “the ability to independently define one’s identity that is central to any concept of liberty.”3 The freedom of association furthers a group’s ability to advance “a wide variety of political, social, economic, educational, religious, and cultural ends.”4 Implicit in the idea of the freedom to associate, is the freedom to dissociate, or refuse to allow certain unwanted people to be a part of your group. Importantly though, an “individual’s statutory freedom from discrimination trumps a group’s constitutional freedom from expressive association unless that group can establish a nexus between its exclusionary policy and its expressive association.”5 Thus, by refusing to extend a bid to a prospective sorority sister or group member, club members may be doing no more than exercising fundamental constitutional rights, if exclusion is tied to the purposes of the group. This could be the case for a hypothetical student organization, we’ll call it Kappa Kappa Kappa, dedicating to advancing the political and cultural agenda of white people. Associational rights are particularly important where admitting members would undermine the purposes and goals of the group, and even more so where the views of the group are unpopular.
A survey of the case law shows that the rights of free association of university groups are gradually eroding, and universities, spurred by a desire to foster “inclusivity” and “diversity”, are forcing groups to admit unwanted members. Though discrimination on the basis of race is, admittedly, not the most sympathetic group philosophy, abridging distasteful speech may eventually lead to other types of less sinister viewpoints being curtailed. The case law bares this out.
In Christian Legal Society v. Martinez6, a group of Christian law students at Hastings College of Law was denied official recognition by the college because CLS required its members to sign a “statement of faith” affirming that homosexuality is sinful. This requirement violated the college’s non-discrimination policies, which forbid student groups from discriminating in admission on the basis of, among other things, sexual orientation. The Supreme Court found that the school’s total inclusion policy furthered its own pedagogical interests, and that because the policy was “viewpoint neutral” in that it did not single out a particular type of discrimination, it did not offend the groups free speech rights.7 In other words, the non-discrimination policy at Hastings was not a selective one, and any viewpoint discrimination was merely incidental to the school promoting its “all comers” policy.
By contrast, some schools have enacted particular policies that seek to eradicate certain types of discrimination. In Alpha Delta Chi-Delta Chapter v. Reed, a Christian student group was denied university recognition because the group’s membership rules required members to be Christians.8 The school justified denying the group recognized status by referencing its “commitment to diversity”, which required official university groups to undertake efforts to ensure diversity within their group. However, “as a matter of practice some student groups were allowed to limit membership to those who agree with the clubs purpose, ideology, or mission.”9 This included a requirement by the Lebanese club that members be willing to work toward an independent Lebanon, an Immigrant Rights Coalition that required members to believe certain things about immigration, and a Planned Parenthood club that required members to be committed to abortion rights.10 Thus, the university’s discrimination policy was not viewpoint neutral, and apparently singled out discrimination on the basis of religion.
In light of Alpha Delta, it is clear that even if a university has a facially viewpoint neutral non-discrimination policy, it may still be engaging in inappropriate viewpoint discrimination by sanctioning those groups whose philosophy is contrary to the mainstream. The result will be that once a group’s philosophy falls out of favor, that group’s membership policy will be regulable. In Healy v. James, the Supreme Court emphasized that discrimination against an unpopular viewpoint by a university is an unacceptable limitation of group speech rights,11 no matter how abhorrent the group philosophy may be. It may be important though to distinguish between group thought and group action, with the former always being allowed and the latter being susceptible regulation due to the university’s interest. Thus, even if a group wanted to discriminate against blacks as part of its group philosophy, actually discriminating against blacks may be outweighed by the university’s compelling interest. At what point though should a university policy permit the school to undermine the associational rights of more savory forms of discrimination, such as religious clubs discriminating against atheists, or fraternities discriminating against women?
Although we may find a university group’s decision to engage in racial discrimination distasteful, that decision could, in theory, be part of the group’s right to express its own political, cultural, religious, or other belief. If so, then the ability of that sorority to discriminate, on any basis, ought to be protected, no matter how abominable, vile, bigoted, hateful, or offensive we may find it. Only the most pressing university interest, such as the health and safety of students, should be justification to diminish individuals’ associational rights. If not, the associational freedoms that are really worth protecting will eventually be gone, always having to succumb to even the most tenuous rationale. As one University of Alabama graduate, Justice Hugo Black, wrote, “I do not believe that it can be too often repeated that the freedoms of speech, press, petition, and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”12
2 357 U.S. 449 (1958).
3 Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984).
4 Id. at 622.
5 9 Wm. & Mary Bill Rts. J. 591, 593 (2001).
6 120 S. Ct. 2871, 2981 (2010).
7 Compare this policy with a policy that says, “only discrimination on the basis of race is forbidden, all other types of discrimination are allowed.” Such a policy would not be viewpoint neutral.
8 648 F.3d 790, 795 (9th Cir. 2011).
9 62 Cath. U. L. Rev. 575, 592 (2012).
10 Id. at n. 126.
11 408 U.S. 169, 170-71 (1972) (university refused to recognize a student group dedicated to “disruption and violence.”)
12 367 U.S. 1, 137 (1961).