Thursday, May 3, 2007

CLS Officially Dubbed a "Politically Incorrect Group" by Academe

Charles Russo and Bill Thro have published "The Constitutional Rights of Politically Incorrect Groups: Christian Legal Society v. Walker as an Illustration," in the Journal of College and University Law (Vol 33, no. 2 at 361). The Journal is published by the National Association of College and University Attorneys (NACUA), and bills itself as "the only national law review devoted exclusively to higher education law." Russo is an education professor and adjunct law faculty at University of Dayton as well as past president of the Education Law Association, and Thro is the Solicitor General of the Commonwealth of Virginia and currently chair of the Journal's editorial board. While the authors provide the official christening of CLS as "non-PC" by the standards of Academe and its scriveners, thereby confirming what we've long suspected, they also get the First Amendment analysis largely right.

The authors initially note in passing an "inevitable tension between the freedom of association and a college or university's desire to prevent discrimination." Id. at 372. (Why there should be a tension between a public institution's laudable desire to prevent religious discrimination and a religious student group's freedom to associate around religious ideals is puzzling, but the authors unfortunately spend little time dissecting this apparently ubiquitous academic sop.) But reviewing the Supreme Court caselaw governing the rights of student associations, including Healey v. James and Board of Regents v. Southworth, the authors nonetheless conclude what CLRF attorneys have been telling NACUA's members for a number of years in cases like CLS v. Walker - that religion is different from other protected statuses because religion is belief. Russo and Thro comment:
[R]egardless of whether an organization may discriminate based on immutable characteristics, it may discriminate based on belief. In other words, the Democrats can exclude Republicans, the Muslims can exclude the Christians and Jews, the Catholics can exclude Protestants, and the Students for Abstinence until Marriage can exclude those who believe in casual sex. An institution may not deny recognition, access to facilities, or funding because of a group's beliefs.
Id. at 375. "In sum," the authors pointedly conclude, "the constitutional rights of the politically incorrect student organizations largely trump a public college or university's desire to prevent student groups from engaging in discrimination. Discrimination on the basis of belief is absolutely protected." Id. at 386. Russo and Thro should be commended for speaking plain sense even though their conclusions may not be politically popular in the current environment on college and university campuses. Here's hoping NACUA's members, and the university adminstrators they counsel, are listening.