The Growing Divide in Free Association Law


Student groups at America’s public universities are increasingly learning that, as in real estate, what matters most is location, location, location.  On Friday, the ADF Center for Academic Freedom and the Christian Legal Society appealed a lawsuit against the University of Montana School of Law concerning the denial of official student organization status to the local CLS chapter.  The University denied CLS official recognition because the group requires voting members to affirm CLS’s statement of faith, but the University argues that its “nondiscrimination” policy requires student groups to be open to all individuals.  In other words, the University believes that students’ constitutional right to associate freely with other students who share their beliefs is of less value than the University’s desire to root out alleged “discrimination.”  The federal district court agreed with the University’s position based on the Truth v. Kent School District decision issued by the U.S. Court of Appeals for the Ninth Circuit.  My colleague, David French, has written about Truth’s impact on public university students here.  Because of Truth, students in Montana, and in nine other states within the Ninth Circuit, have virtually no free association right to define their organization around a set of beliefs and central message if their university has a nondiscrimination policy.  This is why ADF has asked the United States Supreme Court to review the Truth case and reverse the Ninth Circuit’s evisceration of free association.

 On the other side of the country yesterday, the ADF Center for Academic Freedom and FIRE secured a significant victory for free association at Wright State University.  The Campus Bible Fellowship had been derecognized by the University earlier this year because the University determined that the group violated a “nondiscrimination” policy by requiring members and leaders to affirm the group’s statement of faith.  After ADF and FIRE sent letters to the University, it relented and agreed to grant CBF an exemption from the “nondiscrimination” policy.  The University rightly recognized that the group’s freedom of association was paramount in comparison to the University’s policy.

 These two situations, occurring over the span of only a few days, but miles apart in result, demonstrate the growing divide in free association jurisprudence.  Student groups at public colleges and universities within the Ninth Circuit have been hamstrung by the Truth decision (this was demonstrated most blatantly by the Ninth Circuit’s cursory decision in Christian Legal Society Chapter of the University of California Hastings College of the Law v. Kane) and at this point do not possess the same legal protections of student groups elsewhere in the country.  CLS students in Montana are second-class citizens when compared with the CBF students at Wright State.

 The federal circuit courts of appeals are in conflict with one another on the free association issue.  The Ninth Circuit greatly restricted this right in Truth.  The Seventh Circuit found that the right broadly protected student groups in Christian Legal Society Chapter at Southern Illinois University v. Walker.  And the Eleventh Circuit is due to rule any day on this issue in Beta Upsilon Chi at the University of Florida v. Machen.  The split between circuits on this issue continues to grow, despite the fact that several decades ago, the Supreme Court held that student groups have a right to freedom of association on public college campuses, including the right to define their groups around a core set of principles.

 The growing divide in free association jurisprudence is driving a wedge between Christian students and the ability to form student organizations defined by certain values.  The result is that student organizations in Ohio receive more protection under the Constitution than student organizations in Montana.  The Truth cert petition is one of the petitions to watch according to SCOTUSblog.  I’m certainly watching.  It’s time for the Court to take a free association case and reaffirm that the constitutional right to associate freely with like-minded people is one of highest values in our country.


2 Responses to “The Growing Divide in Free Association Law”

  1. warren braun Says:

    Please send me knew posts on free speech and free association on campus issues.

  2. David Hacker Says:

    Mr. Braun,
    Thank you for your interest in the ADF Center for Academic Freedom. The Academic Freedom File is devoted to discussing current issues on university campuses nationwide. Please feel free to sign up for an RSS feed of the blog or bookmark the site for frequent updates.

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