JURIST Guest Columnist Joshua Block of the American Civil Liberties Union discusses whether colleges and universities should be forced to officially recognize and fund student groups who discriminate…

Should colleges and universities be forced to officially recognize—and provide funding to—religious student groups with membership policies that discriminate based on race, gender or sexual orientation? Four years ago, in Christian Legal Society v. Martinez, the US Supreme Court said “no,” but bills have been introduced 
in many state legislatures to overturn that decision and force public universities to provide recognition and state funding to all religious groups even if those groups discriminate. And one of the leading proponents of those bills, Intervarsity Christian Fellowship, got a publicity boost earlier this month when the New York Times ran a cover story
 about Bowdoin College withdrawing recognition from the Bowdoin Evangelical Fellowship, which elicited a surprising amount of sympathy from many very sharp writers.

The next time you read about religious student groups objecting to nondiscrimination policies, here is some important context to keep in mind.

Declining to fund a student group is not the same as banning it

As an initial matter, we should be clear about what it means for a college to not “recognize” a student group. At most colleges and universities, recognized student groups are given special subsidies from the school, which may include school-provided e-mail addresses, the ability to participate in school orientation, electronic keys and access for their outside sponsors and funding from school’s activity fees, which are financed through surcharges imposed on the entire student body. Most colleges and universities provide this recognition because they believe that vibrant student clubs and organizations help contribute to the intellectual and social life on campus, which benefits the entire school community.

And, in exchange for these subsidies, many colleges and universities [PDF] require that the subsidized student groups cannot discriminate in their membership and leadership eligibility policies. Some schools have policies with enumerated categories that prohibit groups from discriminating based on race, religion, sex, sexual orientation, gender identity and disability. Other schools—like the law school in the Supreme Court case—have “all comers” policies that set a blanket rule that all student groups have to be open to all students who want to join.

Even without official recognition, however, students are generally free to form any group they want with any restrictions they want. Religious groups like evangelical fellowships can meet, study, socialize and worship in whatever manner they choose both on and off campus. They just don’t get the subsidy that comes with official recognition.

Students should not have to finance groups that discriminate against them

Just as religious organizations that receive taxpayer dollars shouldn’t be able to use those funds to discriminate, student groups that receive funding from student activity fees should not be able to discriminate with those funds either.

Most student religious groups have had no problem complying with nondiscrimination policies. As the New York Times article noted, Jewish, Muslim, Catholic and mainline Protestant groups have agreed to nondiscrimination policies, saying they do not discriminate and do not anticipate that the new policies will cause problems. And Hillel says some chapters have elected non-Jews to student boards.

The reason why many evangelical fellowship groups are refusing to agree to the colleges’ nondiscrimination policies isn’t because they are worried about a hostile takeover from Lutherans. It’s because they want to retain by-laws
 that bar “unrepentant homosexuals” from being eligible to run for leadership roles or sometimes even being members. Before the Supreme Court, Christian Legal Society argued unsuccessfully that it was not really discriminating against gay students because their bylaws exclude anyone who engages in sexual conduct outside of a marriage between a man and a woman. Michelle Bachmann used the same reasoning to argue that bans on same-sex marriage don’t discriminate because anyone—whether they are gay or straight—can still marry a person of the opposite sex. But as the Supreme Court noted, it is impossible to distinguish between status and conduct in this context.

There is no inherent reason why a religious student group cannot also include members who do not comport with all particulars of religious orthodoxy. There is a vibrant internal dialogue among many people of faith—including evangelicals—about homosexuality and marriage, just as there is a dialogue in the Jewish community about the role of women and there was a dialogue in the Mormon community in the 1970’s about the role of black people in the church. If a particular group of students wants to police the boundaries of what qualifies as an acceptable religious belief and excommunicate heretics from their club, that is their right. But there is no reason why the student body as a whole should be forced to subsidize them either.

Buddhists are not staging a hostile takeover of the Catholic student group

To be clear, the issue isn’t whether these groups have to elect particular students as their leaders. The issue is whether the groups can have bylaws that exclude particular groups of students from even having the opportunity to run. As the Supreme Court noted, far-fetched hypothetical scenarios of, say, Buddhists staging a hostile takeover of Catholic student organizations have failed to materialize. Organizations are free to have election rules that require students to be active members in the club for several semesters before running as a candidate or voting in in an election. “And if a rogue student intent on sabotaging an organization’s objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.” All that nondiscrimination policies do is ensure that student organizations can’t have a rule that bars particular groups of students from even being eligible to run for election in the first place.

It is always possible to think up bizarre scenarios in which students exploit a nondiscrimination policy as a prank. But in the absence of evidence that is a real problem, it makes sense for colleges to have rules in place that don’t force administrators or student governmental officials to make ad hoc judgments about what types religiously motivated discrimination are legitimate and what types are not.

Because few “unrepentant homosexuals” will be interested in joining groups like the Christian Legal Society (and fewer would be elected), the issue is to some degree symbolic. But stigma often works through symbolism. And it’s also important to understand that many religiously affiliated student organizations are not just prayer circles; they are also social groups, community service organizations, eating clubs and fraternities.

A student might fairly conclude that she does not want to belong to a club that wouldn’t want her as a member. But she could also fairly conclude that she shouldn’t have to subsidize their discrimination either.

Joshua Block is a staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project

Suggested citation: Joshua Block, Colleges Should Not Fund Student Groups that Discriminate, JURIST-Hotline, June 25, 2014, http://jurist.org/hotline/2014/june/joshua-block-student-groups-discrimination.php.