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FIRE's Outstanding FAQ

October 17, 2017

I'm not sure if the fact that I actually get enthusiastic about a good legal FAQ makes me a hopeless loser or an incisive policy wonk (maybe that's a distinction without a difference), but I thoroughly enjoyed reading FIRE's FAQ about the Supreme Court's recent decision in Martinez.

Here's FIRE on the difference between belief and status:

There is a difference between making a determination on the basis of an immutable characteristic and making a choice on the basis of changeable personal beliefs and rules of conduct. "Discrimination" on the basis of belief is not the same as invidious discrimination based on status. Excluding individuals because of animus based on immutable characteristics like race or sex is considered by the Court to be fundamentally irrational. The right to exclude members based on status as opposed to belief does not follow from the right to form expressive organizations, because one's skin color or sex does not define one's beliefs. However, the right to exclude people who do not share a common belief central to the group's purpose is fundamental to the right to expressive association.

And here's FIRE on the multiple problems with the "all-comers" policy permitted (but not mandated) by the Supreme Court:

Martinez held that an "all comers" policy is constitutional, but only if the policy is evenly applied and does not target certain groups on the basis of their viewpoints, and only if it reflects "reasonable" educational goals. Martinez did not hold that an "all comers" policy is required, desirable, effective, or even practical. Indeed, the Court recognized certain problems associated with this type of regulation--for example, the possibility of hostile takeovers, as discussed above. The Court held that in the event that "students begin to exploit an all comers policy by hijacking organizations to distort or destroy their missions, [a university] presumably would revisit and revise its policy."

For many reasons, adopting an "all comers" policy is highly inadvisable.

For one, an "all comers" policy renders colleges powerless to stop members of rival or opposing student groups from joining, spying on, taking over, or simply diluting the message espoused by other groups. For example, under an "all comers" policy, atheists cannot be prevented from joining Muslim groups, voting themselves into leadership positions, and then voting to disband the group. In the coming election season, members of the College Democrats would be unable to stop College Republicans (and vice versa) from listening in on strategy meetings or even casting critical votes about strategic decisions. Actions like these would obviously lead to increased bitterness and rancor among groups on campus, yet they would be almost unavoidable under an "all comers" policy.

Further, an "all comers" policy would be nearly impossible to fairly enforce. Any college adopting such a policy must prevent La Raza from excluding students who are hostile to Mexican immigration and an environmentalist student group from denying voting membership to global warming skeptics. Meanwhile, conservative and progressive newspapers alike will be attacked by their critics, who will bring into question whether such time-honored publications have a right to exist at all under an "all comers" policy. Unless a college is absolutely confident that it has addressed every such requirement in every recognized student group, it risks legal liability for violating the CLS v. Martinez mandate that enforcement of an "all comers" policy be evenhanded.

Perhaps most importantly, an "all comers" policy ultimately subjects freedom of association to the limits of tolerance among campus majorities, impairing the intellectual and cultural diversity among groups that is vital on college campuses. A liberal education progresses in great measure through learning from different groups with distinct identities and opinions as those groups express their unique messages on campus. Diluting those messages through an "all comers" policy contracts rather than expands the marketplace of ideas across campus. As John Stuart Mill wrote about censorship in On Liberty: "If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error."

Read the whole thing.  And perhaps you too will experience the thrill of a well-crafted legal FAQ.


Alliance Defending Freedom

Alliance Defending Freedom

Non-profit organization

Alliance Defending Freedom advocates for your right to freely live out your faith