Come One, Come All?

Two North Carolina bills aim to allow student organizations the option of restricting leadership based on ideology, but the bills carry the potential to face critical Constitutional issues.

Having an “all-comers” policy for student organizations in public universities can be difficult for some groups.  On one hand, universities want (and require) all students to be able to participate in any organization they choose, regardless of the student’s age, gender, race, national origin, and sexual orientation; on the other, organizations want to remain true to the principles on which they were founded.  Most of the time, there is no problem with student organizations keeping to their initial goals: Democrats would probably not want to join the Student Republicans, and most religious organizations do not have much intermixing.

Issues of a First Amendment nature arise, however, when an organization purposely attempts to exclude certain individuals from its group.  Are the organizations merely exercising their First Amendment freedom of speech, expression, and association rights?  Or, are they employing discriminatory practices in accepting new members?

The bills would allow a religious or political organization to require their leadership to profess the same mission or faith as the rest of the group.

North Carolina House Bill 735 and its Senate counterpart, Bill 719, promote the view that excluding certain students from organizations is an exercise of freedom of expression, not discrimination.  Both bills would grant new student organizations at “constituent institutions” or community colleges equal footing among other organizations in terms of funding.  The bills would also allow a religious or political organization to require their leadership to profess the same mission or faith as that declared by the group.

These bills may be unnecessary and already obsolete among the largest North Carolina public universities however.  Both the University of North Carolina at Chapel Hill and North Carolina State University have clauses in their student organization policies that accommodate religious and politically affiliated organizations’ desire to restrict their leadership to only those students who support the organization’s goals and beliefs.  These organizations may also be selective of their members so long as no student is excluded based on age, race, “religious status or historic religious affiliation,” or sexual orientation or identity.

Wake Technical Community College also offers equal opportunities to all current and prospective students in an umbrella “non-discriminatory policy” that applies to admissions and other procedures at the school.  Compliance with affirmative action and equal educational opportunities are “an integral part of the mission and purpose of Wake Technical Community College.” To create an organization, the group’s application must include the purpose and objectives of the group and must be approved by the top leadership at the school.

Student organizations which would be subject to the House and Senate bills at both the university and community college levels should be aware of their respective university policy, and student members are presumably unlikely to elect officers who do not share the mission of the organization.  If a student is excluded from membership based on their ideology under university policy, those with differing views should very well be free to create other organizations to attract like-minded people.

Several Representatives are also questioning the outcomes of the bills.  Democratic Representative Henry Michaux raised the possibility of discriminatory results, asking whether the bill would require universities to fund groups that exclude certain students, regardless of the university’s anti-discrimination policy.  According to Representative Bert Jones, the bill’s sponsor, the bill would require universities to recognize such organizations, even though certain students would be denied membership.

A school like Hastings may “reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.”

The Supreme Court of the United States ruled on the constitutional issues potentially involved in student organization membership.  In Christian Legal Society v. Martinez (pdf), the question was raised whether a public law school could condition its recognition of a student group on the organization’s agreement to an “open eligibility” policy, and whether this policy violated the group’s right to freedom of expression.   University of California-Hastings School of Law’s CLS chapter petitioned for exemption to the school’s non-discrimination policy, which stated that no group could exclude students based on religious beliefs or sexual orientation.  CLS argued that the policy impaired its First Amendment rights to free speech, expressive association, and exercise of religion.  The student organization claimed that its rights were violated by the university forcing it to accept members who do not share its beliefs about homosexuality in order for the organization to gain registered student organization (RSO) status.

The Court held that CLS should not receive a special exemption from Hastings’ RSO requirements.  Justice Ginsburg, in her majority opinion, stated that the all-comers policy was a “reasonable, viewpoint-neutral condition on access to the student-organization forum” (including school funding), giving public universities discretion as to what is included in their non-discrimination policies.  As a result, CLS could exercise its First Amendment rights outside of official organization status and still had access to school facilities, but could not use RSO-specific communications or media.  Hastings’ chapter could dictate its membership –the First Amendment “shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be”– but it could not do so as an RSO.

The CLS v. Martinez case gives public universities discretion as to where to draw the line between excluding students from student organizations and admitting everyone.  A school like Hastings may “reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.”  As long as the school’s policy is viewpoint neutral – drawing no distinction between groups based on message or perspective – it is constitutional under the First Amendment.   Policies like UNC-Chapel Hill’s and N.C. State’s would likewise be constitutional, provided that one group is not favored over another and participation is not based on individual inherent characteristics.

The hallmark of attending a public university is to become exposed to different viewpoints, ways of life, and ways of thinking.

The passage of House Bill 735 and Senate Bill 719 may change the composition of student organizations at public universities and community colleges, making organizations more homogeneous instead of a mix of students learning about different ideologies and missions.  Students who have an interest in an organization may be dissuaded from signing-up if there is no chance to attain a leadership position within that organization.

Despite this, the bills would not require student groups to restrict membership, only allow them the option.  If a student organization decides to restrict its membership, a university or community college would be required to recognize and provide funding to the group, regardless of the school’s anti-discrimination policy.  The hallmark of attending a public university is to become exposed to different viewpoints, ways of life, and ways of thinking.  If the House and Senate bills are eventually signed into law, preserving this benefit of higher education may be left solely to the students themselves.

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About Sarah Bowman, Former Associate Editor (9 Articles)
Sarah Bowman served as an Associate Editor for the Campbell Law Observer. She was also the Moot Court Chair for the Old Kivett Advocacy Council and the Vice Dean for Delta Theta Phi Law Fraternity. She is originally from Asheville, North Carolina, and graduated from University of North Carolina Chapel Hill in 2011 with a bachelor’s degree in History and Political Science and a minor in Spanish. Her previous legal employment includes summer internships with the Property Control Section of the N.C. Department of Justice, the Gillett-Stallings Law Office, and a research position as a Webster’s Scholar for Professor Patrick Hetrick. Sarah graduated from Campbell Law School in May 2014.
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