Associational Freedom and Nondiscrimination Rules: An AZ Legislative Proposal

In a number of cases, the CLS Center is arguing that the Constitution forbids public universities from applying religion and "sexual orientation" nondiscrimination rules to religious groups. We are often told that if a religious student group is permitted to draw its leaders from among those who share the group's religious commitments, then a white supremacist group will be able to exclude racial minorities.

There are a lot of answers to such an assertion, including the fact that religion is different from race, both inherently and in the context of American history. In addition, when a religious group organizes around shared religious commitments and maintains its identity through statements of faith, it is not committing an act of invidious discrimination.

Against this backdrop, the recent action of an Arizona legislative committee is quite interesting. As reported in the Chronicle of Higher Education, the committee has passed a bill that contains a provision that forbids students from forming student groups based on race. It would be interesting to see how a court would deal with a claim by a Black Law Students Association chapter that this provision violates its associational freedom.