Is discrimination against gays and atheists protected speech?

Sometimes the First Amendment just makes your head hurt.

Such is the case, at least for some, in a student speech/discrimination case currently before the Supreme Court that the parties argue pits some of the important guarantees of the First Amendment against the important societal goal of prohibiting discrimination based solely on who a person is or what he believes.

In a nutshell, the case involves a Christian student group at Hastings Law School in San Francisco denied “official student group” status because of its refusal to comply with the public law school’s policy that forbids discrimination on various grounds, including religion and sexual orientation. The group, the Christian Legal Society (CLS), limits its officers and voting members to those who accept its religious beliefs. Specifically, the group has refused to allow admission to nonbelievers and those who refuse to denounce homosexual activity.

Official recognition is important because only “official” student groups can apply for student activity fees, use certain meeting spaces at the law school or have access to college newsletters and student bulletin boards.

The Supreme Court has been down at least part of this road a few times before.

In Healy v. James, for example, the Court confronted a Connecticut state college’s refusal to recognize a radical, anti-war student group as an official student organization. The students claimed that the school’s action, prompted by the group’s political beliefs, violated their First Amendment rights. In siding with the students, the Court’s 1972 opinion noted, “The college classroom and its surrounding environs is peculiarly the ‘marketplace of ideas.’”

In 1995, the Court, in a 5-4 decision in Rosenberger v. University of Virginia, struck down a University of Virginia policy as unconstitutional after school officials used it to deny student activity fee funding to subsidize the printing of a newspaper published by a Christian student group that offered “a Christian perspective on both personal and community issues.”

In striking down the university’s funding guidelines, the Court once again made clear that it took seriously the First Amendment’s protective role and the importance of free speech and open debate on campus. Discrimination against speakers solely because of the views they held would not be tolerated.

Finally, in its 2000 University of Wisconsin System v. Southworth decision, the Court upheld a mandatory student activity fee system at the University of Wisconsin. Conservative students had argued that being forced to pay the fee violated their First Amendment rights because the money was used to support a variety of student groups whose stated missions and speech, the students said, were at odds with their political and ideological beliefs.

In upholding the fee, a unanimous Court found that the student activity fee system was a legitimate part of a public university’s educational mission as long as funding was open to all student groups regardless of ideology.

In each of these cases, the Court has emphasized the important role it believes free speech plays on America’s college and university campuses. But how does that right — and the right of associating with those of one’s choosing to advocate for shared beliefs  — stack up against the societal goal of eliminating discrimination based on religious and political views?

For its part, Hastings argues that its policy does not prevent official student organizations from holding or expressing any view, religious or otherwise. Rather, they say, it simply requires that any officially recognized student group must be open and accessible to all students.

CLS, on the other hand, argues that the group doesn't discriminate against homosexuals — just those  homosexuals (and any other students) who refuse to denounce homosexual conduct as immoral. (Hmm....)

Before jumping the gun with your answer, it may be useful in this case — as it often is in a First Amendment case — to substitute the players.

For example, would we feel any differently if the year was 1962 and the case was being brought by a student group at the University of Mississippi created to promote racial equality following the hotly contested admission of the school’s first African American student? What if they were being forced by school policy to allow student members of the KKK (or any student who disagreed with desegregation) to join and run for leadership positions in the group?

The First Amendment is, after all, supposed to be blind to the ideas and viewpoints of the parties seeking its protection.

Then again, how would we feel if, instead of the Christian Legal Society banning those who did not hold its religious views, it was a Hastings chapter of the Aryan Nation that used public money to fund a student group in which only white supremacists qualified for membership?

Of course, the question on our minds — and probably most of our readers — is how might this affect student media? Currently, student editors at public schools have virtually unlimited discretion when it comes to choosing which letters to the editor, guest columns or ads to publish. The First Amendment protects the right of student editors to refuse to publish material or associate themselves or the publications they edit with content with which they disagree. That is, they are permitted to discriminate.

But is the editing practiced by student editors on par with the discrimination practiced by the Christian Legal Society? Perhaps not, but would a minority group ever have an opportunity to have their voice heard if members of the majority could take over the group — and, by extension, its message — simply by showing up and using their numbers to vote themselves into power?

Like I said, this stuff can make your head hurt.

The Supreme Court is expected to hear arguments later this spring.

Tagged: courts