The seemingly straightforward question as to whether student groups at public colleges should be able to discriminate in membership has more layers than an onion. Thanks to legislation passed by the General Assembly, Gov. Bob McDonnell now has to peel it.
Two years ago, the Supreme Court ruled, narrowly, that a California law school could decline to recognize a Christian student group because of its requirement that prospective members forswear a “sexually immoral lifestyle.” The court’s five-member majority said U.C. Hastings’ nondiscrimination policy did not violate the Christian Legal Society’s First Amendment rights of free association and free expression. Hastings was “dangling the carrot of subsidy, not wielding the stick of prohibition,” wrote Justice Ruth Bader Ginsberg.
The ruling did not, however, mandate nondiscrimination policies, and some universities — such as U.Va. — give student groups a fair amount of latitude in setting their membership rules. Other institutions enforce nondiscrimination policies more rigorously. This year lawmakers in the General Assembly passed a measure that would insulate religious and political student groups from the effect of those policies. If it becomes law then, for instance, a Muslim student group could decline to admit evangelical Christians, and vice versa. The legislation has come under fire from Democrats, student groups and others as a license to discriminate.
Justice Ginsburg makes a persuasive case — up to a point. Students who want to form exclusive societies are not being prevented from doing so. The only question is whether those groups should enjoy the imprimatur of official state recognition and, in effect, state support through student activity fees or the use of school facilities. So the question is, at least in part, what criteria schools can impose as the price of such recognition.
The trouble is that the criterion in question — an “all comers must be accepted” policy —violates a fundamental constitutional right. Governments have the authority to circumscribe such rights when they have a compelling reason to do so, and advocates of nondiscrimination policies have maintained (as they did in the Hastings case) that those policies help guarantee equal treatment for all.
But this is an exceedingly awkward stance for colleges and universities that often discriminate when selecting members of their student bodies. During the admissions process, most colleges take into account characteristics such as race and gender — either through overt efforts at affirmative action, or in the name of an all-purpose “diversity.” (Indeed, the Supreme Court will rule later this year in a Texas affirmative-action case in which many academic interests have argued for the right to continue discriminating for just such a reason.) What’s more, many public colleges and universities offer, or facilitate, racially exclusive scholarships for black, Latino and Asian students especially.
While diversity is a desirable goal, it does not qualify as a fundamental right the way freedom of speech and association do. This leaves some universities in the embarrassing position of insisting that they should be able to practice membership discrimination (and scholarship discrimination) for less important reasons than those they reject when their student-members want to discriminate as well.
The contrast is sharply ironic, but it does not resolve Gov. McDonnell’s dilemma. He should resolve it by vetoing the legislation. Private groups should be able to discriminate as much as they please. But government’s obligation to ensure equality before the law requires it to refrain from participating in that discrimination. McDonnell can strike a blow for that principle here in Virginia. With luck, the Supreme Court will soon follow suit for the nation as a whole.
