Last week, Arizona enacted a new law that, among other things, evidently aims to give student groups at colleges and universities in the state the authority to exclude potential members and leaders based on their religion, sexual orientation, political views, and other factors. I say "evidently" because the law is worded somewhat oddly and could conceivably be construed as failing to achieve the purpose of "overruling" the result in last year's U.S. Supreme Court decision in Christian Legal Society v. Martinez. Here I'll note a few thoughts on the constitutionality and meaning of the new Arizona law. In a follow-up post for tomorrow I'll have something to say about the law's wisdom (or lack thereof).
Let's begin with a brief review. In CLS, the Court ruled, 5-4, that Hastings Law School (part of the University of California system, and thus a state actor for constitutional purposes) did not violate the First Amendment rights of a student organization (CLS) when Hastings applied its "all-comers" policy to CLS, thus denying official recognition (and concomitant eligibility for funding and other special benefits), because CLS sought to exclude from its membership openly and "unrepentantly" gay students. CLS had argued that the all-comers policy was not enforced evenhandedly but was in fact a cover for discrimination based on religion. However, the Court found that this issue was not presented on the record before it. The case thus stands for the proposition that state institutions of higher education may enforce even-handed all-comers policies without thereby violating the right of expressive association that membership organizations enjoy in other contexts. Private colleges and universities may do the same because they are not bound by the First Amendment.
Regular readers of this blog will recall that I was involved in the case. I was the main author of the Association of American Law Schools amicus brief in support of Hastings, and I wrote about the case multiple times (e.g., here, here, here, here, here, and here). But I admit that the Arizona law is consistent with CLS v. Martinez. That case held that colleges and universities may enforce all-comers policies, consistent with the First Amendment. It does not imply that they must adopt such policies.
Could one argue that the Arizona law is nonetheless unconstitutional insofar as it authorizes student organizations to engage in discrimination? Perhaps, but the viability of that argument would depend in part on how much control a university exercises over its student organizations. Tightly controlled student organizations at state colleges and universities could be deemed arms of the state itself, in which case the organizations' discriminatory decisions would be subject to equal protection scrutiny. For example, an intercollegiate football team at a state university that excluded students based on race would be acting unconstitutionally. However, given that the thrust of the new Arizona law is to free the student organizations from control by the universities, this argument seems unlikely to succeed here. In addition, to succeed, an as-applied challenge to the Arizona law would need to establish that a student organization is actually discriminating on the basis of a suspect or semi-suspect classification and that the new law's promotion of freedom of expressive association fails heightened scrutiny. In short, the law would likely survive a constitutional challenge.
Now, on to the law's meaning. The key provision states:
15-1863. Student organizations; recognition; rights
A. A UNIVERSITY OR COMMUNITY COLLEGE THAT GRANTS RECOGNITION TO ANY STUDENT ORGANIZATION OR GROUP MAY NOT DISCRIMINATE AGAINST OR DENY RECOGNITION, EQUAL ACCESS OR A FAIR OPPORTUNITY TO ANY STUDENT ORGANIZATION OR GROUP ON THE BASIS OF THE RELIGIOUS, POLITICAL, PHILOSOPHICAL OR OTHER CONTENT OF THE ORGANIZATION'S OR GROUP'S SPEECH INCLUDING WORSHIP.
B. A RELIGIOUS OR POLITICAL STUDENT ORGANIZATION MAY DETERMINE THAT ORDERING THE ORGANIZATION'S INTERNAL AFFAIRS, SELECTING THE ORGANIZATION'S LEADERS AND MEMBERS, DEFINING THE ORGANIZATION'S DOCTRINES AND RESOLVING THE ORGANIZATION'S DISPUTES ARE IN FURTHERANCE OF THE ORGANIZATION'S RELIGIOUS OR POLITICAL MISSION AND THAT ONLY PERSONS COMMITTED TO THAT MISSION SHOULD CONDUCT SUCH ACTIVITIES.
C. A UNIVERSITY OR COMMUNITY COLLEGE MAY NOT DENY RECOGNITION OR ANY PRIVILEGE OR BENEFIT TO A STUDENT ORGANIZATION OR GROUP THAT EXERCISES ITS RIGHTS PURSUANT TO SUBSECTION B.
To my mind, Part A would not bar an all-comers policy because, per CLS v. Martinez, such a policy, if enforced even-handedly, does not "discriminate" against religious speech. For the same reason, a university that enforced an all-comers policy would not be denying "recognition, equal access or a fair opportunity" to a student group that violated the policy "on the basis of" that organization's "religious, political, philosophical or other content of the organization's . . . speech," but instead denying these benefits on the basis of the organization's violation of the all-comers policy. That is the logic of the Supreme Court's decision in CLS v. Martinez. Of course, the Arizona courts are free to adopt a different logic in interpreting Arizona law, but in light of the background of the law, Part A strikes me as poorly drafted if it aims to change the result of CLS v. Martinez for Arizona.
Part B does somewhat better but it is hardly a model of draftsmanship either. Suppose that the University of Arizona Law School adopts an all-comers policy or an anti-discrimination policy covering sexual orientation for all official student groups, subject to an exception insofar as required by the new Arizona law. Now suppose that an "unrepentant" openly gay student attempts to join the U of Arizona chapter of the CLS, and that the chapter wishes to exclude this student from membership pursuant to the Arizona law. Can it do so?
If I were representing the student, I would argue that he is "committed to" the "religious or political mission" of CLS, notwithstanding his sexual orientation, so that while CLS could exclude from its membership someone who openly espoused a viewpoint contrary to the teachings of CLS (e.g., atheism, Buddhism, or Wicca), merely being gay, even if sexually active, is not tantamount to lacking commitment to the goals of CLS, the University of Arizona Law School chapter of which describes itself as "a nondenominational group of Christian law students who meet regularly to share their faith and to encourage each other."
Thus, in my hypothetical example, CLS would need to rely on the remaining language of Part B, which seems aimed at making student organizations themselves the judge of whether a person's membership is consistent with an organization's goals. But if that is the law's goal, it's not obvious that the text achieves that goal. Substituting ellipses to eliminate irrelevant portions, Part B actually says: "A religious or political student organization may determine that . . . selecting the organization's . . . members [is] in furtherance of the organization's . . . mission and that only persons committed to that mission should conduct such activities."
That language could be read merely to say that the student organization gets to decide that it cares about who is a member and that the student organization also gets to exclude putative members who don't share a commitment to the mission. However, the law doesn't say in so many words that the student organization shall be the judge of whether a putative member in fact is committed to the organization's mission.
Is the purpose of the Arizona law to allow student religious and political organizations to decide on their own criteria for when someone doesn't share its mission? Probably, but there are two reasons to think that this may not be the best reading of the statute. First, a textualist judge (who sincerely followed the text rather than just following his political sympathies, as I recently discussed here) could say that the text, rather than the legislature's purpose, controls. Second, even assuming we read the new law in light of its apparent purpose, it's not obvious that a reasonable legislator would want to give the leadership of a student group the sole power to decide whether putative members really support the group's mission.
Suppose the leadership of the student chapter of the ACLU decided to exclude all students who did not support firearms ownership or who favored some limits on violent pornography, even if they were otherwise civil libertarians. Or suppose that the Environmental Law Society excluded all students who had accepted summer or full-time employment with law firms doing environmental work for corporations. It's at least possible to think that a rational legislator would have wanted each student group to have the latitude to exclude people who are not committed to the group's goals but would not have wanted to give the student groups themselves carte blanche to decide what views count as incompatible with their respective missions.
Whether any of these issues actually arises remains to be seen. It's possible that colleges and universities in Arizona will adopt policies that are clearer in pursuing the goals of the Arizona legislature than the statute the legislature itself crafted. Meanwhile, tomorrow I'll consider the wisdom of those underlying goals.