Legal Commentary

Ideological Groups Being Taken Over by Those Hostile to the Underlying Ideology

By Eugene Volokh

A commenter (Tim) on an earlier thread raised an important objection to rules that bar religious discrimination by campus groups (including religious groups):

Imagine that anyone, regardless of religious belief, were allowed to become voting members of the ?Christian Legal Society? or the ?Muslim Students? Association? or any other such group. What would stop people who disagreed with the group?s views from joining the group in large numbers, voting out the leadership, and then disbanding the group merely to silence them? Obviously, the students would have no meaningful right to free speech and association if this regime were allowed to stand.

Another commenter, EMB, responded:

I?ve seen this hypothetical argument made several times, but every time I wonder: are there any examples in the real world of this actually happening?

I can?t say how often these things happen, nor am I sure that anyone else can say it, either. But I do know of one case that involved that very fact pattern (though not at a university), and that was litigated all the way to the California Court of Appeal. The case is Hart v. Cult Awareness Network, 13 Cal. App. 4th 777 (1993), in which Scientologists were apparently trying to take over the Cult Awareness Network, which was hostile to Scientology. When they were refused admission, one sued, claiming the denial violated California antidiscrimination law; the court held that antidiscrimination law couldn?t apply here, and based its reasoning partly on CAN?s First Amendment rights to expressive association.

I think the California Court of Appeal reached the right constitutional result as to general bans on discrimination. I also think that, partly for this reason and partly for others, public universities should ? as a matter of policy ? allow ideological student groups to discriminate based on members? ideology, and therefore allow religious student groups to discriminate based on members? religious views. (I think that when it comes to the government as funder and as landlord, this policy is not constitutionally commanded; the government may choose to impose such antidiscrimination rules on student groups that it funds. But that?s a story for another post.)

Full post as published by The Volokh Conspiracy on December 08, 2009 (boomark / email).