The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights

Timothy J. Tracey

Ave Maria School of Law

October 16, 2012

University of Memphis Law Review, Forthcoming

The U.S. Supreme Court killed off equal access in Christian Legal Society v. Martinez. A religious student group, said Justice Ginsburg, “enjoys no constitutional right to state subvention.” Religious groups may form on university campuses, but they have no right to the “benefits of official recognition” — classrooms, corkboards, and money. No longer can they wield the First Amendment to second-guess the educational decisions of university administrators. University “decisions about the character of [their] student-group program are due decent respect.”

The Martinez decision marks a return to an early-American understanding of student rights. From the enactment of the Bill of Rights in 1791 until the Fifth Circuit’s decision in Dixon v. Alabama State Board of Education in 1961, courts deferred to universities by the doctrine of in loco parentis. Universities stood in the place of students’ parents. Just as courts acceded to parental authority, they acceded to university authority.

The equal access cases renounced this 170-year history of deference to university administrators. Equal access enabled religious groups to override university decisions about what student groups best further the school’s educational mission. This equal access paradigm prevailed at the Supreme Court for over 30 years. Religious groups consistently won the Court’s approval to use the First Amendment to compel university support. But Martinez abandoned equal access with its embrace of a subsidy model for university-student group relations. It freed universities to pick and choose the groups they want to support — even if it means picking secular groups over religious groups. Despite critics’ claims to the contrary, this more deferential posture toward universities is consistent with the original understanding of student rights. Early-Americans had no concept of equal access. In loco parentis controlled. No twisting of history can change that.

Number of Pages in PDF File: 69

Keywords: equal access, student, education, First Amendment, Christian Legal Society, Martinez, student rights, free speech, government subsidy, originalism, history

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Date posted: October 22, 2012  

Suggested Citation

Tracey, Timothy J., The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights (October 16, 2012). University of Memphis Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2165405

Contact Information

Timothy J. Tracey (Contact Author)
Ave Maria School of Law ( email )
1025 Commons Circle
Naples, FL 34119
United States
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