Subsidizing Discrimination Through Recognition: Associational Rights in Public Colleges and the Right to Exclude
41 Pages Posted: 29 Jul 2012
Date Written: June 15, 2011
Must a public school subsidize a student club that discriminates on the basis of race, sex, or other protected status? In Christian Legal Society v. Martinez, the Supreme Court was faced with this question - but the justices passed the buck. They dodged the real issue - whether to uphold a university's policy against extending school resources to clubs discriminating on the basis of sex, race, and sexual orientation. Instead of deciding whether such a policy unconstitutionally discriminates on the basis of content or viewpoint, the Court covered its eyes, pretending that the university's policy instead mandated that clubs accept "all comers." As Justice Scalia noted in his dissent, this was not the policy at issue, and the court missed an opportunity to clarify what we intuitively know: That a public university has a right, if not a duty, to refuse to recognize clubs that discriminate on the basis of race, sex, or other protected status. This article highlights a circuit split on this very issue that predates CLS v. Martinez and remains unresolved today, due to the Supreme Court's reluctance to engage the issues before it. A public university has no obligation to subsidize discrimination, and in fact has an affirmative duty to avoid it.
Keywords: first amendment, free speech, freedom of association, Hastings, Christian Legal Society, discrimination, public university, subsidized
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