Marketplace of Ideas 2.0: Excluding Viewpoints to Include Individuals

Abstract

What are the implications of the Christian Legal Society v. Martinez decision? First, in ruling that public universities may require that all recognized student organizations permit any and all-comers to be eligible for all offices of the organization, the Court issued a narrow rule that is praiseworthy for its clarity but for little else. Second, and on the issue of precedent, it is worth noting that by ratifying Hastings’ all-comers policy, the Court overlooked numerous precedents and historical facts that recognize the rights of students to associate with those of similar beliefs on campus and free of university-imposed burdens. Third, Justice Kennedy’s harsh concurring opinion ascribes a startling sense of deference to public universities, which is likely to make future First Amendment challenges by students more difficult. Fourth, while the subsidies camp prevailed in this round of the rights v. subsidies terminology turf war, the dispute is sure to re-emerge in future First Amendment cases. Fifth, the immediate aftermath of the Martinez decision yielded thoughtful commentary on the impact of Board of Regents of the University of Wisconsin System v. Southworth on the Court’s reasoning in Martinez. The Southworth case proves an able rival for comparison with Martinez in anticipation of future decisions on the speech and associational rights of students on public university campuses. Sixth, this case reflects an illiberal and regrettable trend by policy-makers to muzzle the First Amendment and exclude viewpoints simply to include individuals.

The author co-authored an amicus brief in support of CLS and presented portions of this paper at the UC Hastings Constitutional Law Quarterly's symposium held on October 1, 201'3

Keywords: Christian Legal Society v. Martinez, nondiscrimination, Hastings, Southworth, marketplace of ideas, First Amendment