By Mike Dorf
In yesterday's post, I explained why the new Arizona law that attempts to "overrule" Christian Legal Society v. Martinez for Arizona colleges and universities is probably constitutional, and I raised some questions about the quality of the drafting of the law, given its evident purpose. Here I want to ask whether the law is a good idea. I think the answer is no, but as I shall explain, how to allocate policy-making authority on a question like this is tricky.
To see how complicated the question is, let's consider all of the different levels at which decisions about membership in student organizations could be made:
1) The petitioner Christian Legal Society in CLS v. Martinez argued that the decision should be made by the U.S. Supreme Court--or perhaps more charitably, that it had already been made by the People in the First and Fourteenth Amendments. The Supreme Court disagreed and, per my analysis in yesterday's post, would probably also disagree if excluded students were to argue that the act of excluding them from membership in a student group at a state college or university violated their constitutional rights.
2) Presumably the issue could be decided at the national level if Congress were to condition eligibility for federal research or scholarship funding at every college and university on their adopting policies like the Arizona law. Alternatively, Congress could condition such funding on adoption of all-comers or nondiscrimination policies. One could also imagine Congress deciding the issue as a matter of direct federal regulation, not tied to funding, on the ground that colleges and universities are actors in interstate commerce.
3) Absent federal legislation, we are beginning to see, in the Arizona law (assuming it is construed to mean what it was intended to mean rather than what it appears to say), decisions by state legislatures.
4) A state legislature could take a somewhat lesser step too. Note that the Arizona law applies to private as well as public ones. A legislature might decide only to mandate a rule for public colleges and universities on the theory that it legitimately exercises greater power over state-funded than private institutions.
5) Absent federal or state legislation, the key policy decision could be made at the university (or in the case of state university systems, at the university or regents) level by educational administrators.
6) Absent federal, state, university or trans-university policy, the decision could be taken at the school or departmental level--as was true in CLS v. Martinez, where the relevant policy was adopted by Hastings Law School.
7) The issue could be decided by the relevant student government body.
8) Absent any formal policy, the issue would be decided at the student organization level.
So, what's the right answer? It's difficult to separate substantive from institutional views. At each of levels 1-7, policy makers might consider any of the following possibilities (and others): a nondiscrimination policy; an all-comers policy; an associational freedom policy like that of Arizona; or no policy. If you distrust the judgment of the people at any given level, you'll want them to adopt no policy, because you probably wouldn't like the substantive policy they would adopt. But that's just another way of saying that you don't really care about the institutional question per se. We might ask: What is the right place for policy of this sort to be made, assuming you don't know anything about how the druthers of the people at each level align with your own?
I think that a respectable case could be made for the following proposition: If you were deciding the issue as a Supreme Court Justice, a member of Congress, a member of a state legislature, a university administrator, or a law school administrator or faculty member (a position I actually hold), you should leave the level just below you with as much autonomy as possible. So, if I were following this approach, I would prefer my judgment as a law school faculty member in consultation with other faculty members to the the judgment of university officials, state and national lawmakers, and judges, but I would prefer the judgment of students to my own judgment.
That principle is not simply based on a preference for decentralization. The basic problem is that it's very hard to formulate an ideal rule here because of the diversity of student organizations. It's perfectly reasonable for the college glee club to have try-outs and thus exclude people (like myself) who can't carry a tune. It's also reasonable for the Republican Club to exclude Democrats and vice-versa, at least if evidence of sabotage were to emerge. So an all-comers policy with no exceptions seems like a sub-optimal policy.
At the same time, it is easy to see how the right to hold try-outs or to exclude students who are not committed to the group's mission could be abused or become a cover for discrimination on illicit grounds. I was being sincere when I argued in the AALS brief in CLS v. Martinez that an all-comers policy is in one important respect preferable to a simple nondiscrimination policy because it is much much easier to prove that an all-comers policy has been violated than it is to prove that an organization has engaged in illicit discrimination under the pretext of controlling its membership for purposes of quality control (in the glee club example) or agenda control (in the political examples).
Accordingly, I think that for most student groups, the right move is to begin with an all-comers policy and only start screening potential members once a clear need to do so arises. But that's a very hard standard to administer externally, which is why one might think the matter should be left to the organizations themselves.
The issue is close, though, and I think it is not unreasonable to worry about exclusion of students. Would a university really want to enable the official College KKK Club to exclude African-American students from membership on the grounds that their presence at meetings would undermine the organization's ability to promote its message of white supremacy? I'm tempted to say that the bigger problem here is that the university shouldn't be completely content-neutral in recognizing organizations, so that it shouldn't grant any official status to the CKKKC in the first place. Nonetheless, I understand that, at least officially, many universities may want to adopt a hands-off policy with respect to organization formation in the first place. Given that preference, it's easy to see how, at any level up the hierarchy of decision making, one might be tempted to adopt either a nondiscrimination policy or an all-comers policy. And once that happens, people at the next higher level of decision making could worry that such a policy was undermining the ability of students to form some expressive association that receives full recognition from the college or university.
So what's my bottom line on the Arizona law? I think it was unwise, but I also think (albeit less strongly, because my views on the merits affect my institutional views), that it would have been unwise for Arizona to have dictated the opposite policy at the statewide level.