Student Clubs and Rights

Michael D. Peabody May/June 2002

Student Clubs and Rights

By Michael D. Peabody

The school's policy seemed clear enough—student clubs receiving funds through Utah Valley State College's student activity fee program had to be open to all students. No exceptions. For the Eagle Forum Collegians, a conservative student club formally opposed to "radical feminism" and the "homosexual agenda," this posed a serious problem. After all, club members thought, if anybody could join their club, homosexuals and feminists would soon fill the ranks and erode the club's message from the inside out.

On the other hand, why should homosexuals or feminists be required to fund a group that so actively opposed them on such a personal level?

When the college declined to fund the club unless it opened its doors to all college students, Eagle Forum Collegians leader Kendra Ruzicka and her lawyer, Matthew Hilton, requested in writing that the university make an exception to the rule. The club, they reasoned, should not be forced to accept those who might have threatened its existence or at least altered their message.

In addition, Ruzicka and her lawyer sent a letter to the Utah attorney general, Jan Graham, claiming that the policy denied Eagle Forum Collegians their First Amendment rights of association, religious exercise, and freedom of speech.

Graham responded that the policy was "based upon sound, compelling reasons" and would therefore be enforced. Graham added that if the group refused to adopt a more inclusive policy, it would no longer be able to operate as an officially sanctioned club and would forfeit its access to funds from the yearly student activity fees, among other things.

From the age when long-haired hippies roamed the earth to the days of their body-pierced progeny, America's college campuses have been host to a hodgepodge of debate, discussion, and protest about the issues of the day. From "Make love, not war" to "Meat is murder," college kids have raised their voices LTCVC the din of a seemingly apathetic society to point loudly to the issues that really matter.

This vast store of energy is not lost on college and university administrators who wish to encourage a "robust exchange of ideas." While not everybody will agree with all the ideas that they promulgate, college kids have a message that comes from somewhere in the soul where the ideal is not shrouded by the constraints of jaded practicality. As one judge has observed, "the nation's fundamental civic values are forged in the intellectual fires of its college campuses." Although the message of students may sometimes appear muddled or run against the grain of the rest o: society, one thing remains clear—in their eyes they can change the world.

Through systematic collection of student activity fees, universities fund programs that encourage students to express themselves Student fee systems first began to appear at a time when public universities were prohibited from charging for tuition but could collect fees for "incidental" expenses. The scope of student fee usage gradually expanded until student governments, publications, sports, honor societies and other programs were funded in the 1970s.

Although the right of universities to collect these fees has been upheld, the scope of what the fees may be used for is the subject of intense controversy. Within the surrounding litigation there are two general categories in which student fees have been the subject of scrutiny First, there are students who feel that their groups are being unconstitutionally excluded from receiving funding. Second, there are students who feel that universities violate their First Amendment rights when they are compelled to fund speech that they disagree with or even find strongly offensive.

Constitutionally, the litigators in both of these scenarios have a point The First Amendment guarantees every individual the freedom to express his or her beliefs. But also implicit in the First Amendment is the "negative right" to be free from compelled association with or expression o: ideas or beliefs with which one disagrees.

The First Amendment—and the entire Constitution, for that matter—was developed in the "soil of laissez-faire individualism" when the people sought freedom from the constraints o: an overreaching government. A couple of centuries later, however, society has come to expect government not only to support the individual rights protected by the Bill of Rights, but also under certain circumstances, to financially support a portion of the expression of those rights.

To reconcile the pure enjoyment of those rights with the modern tendency to seek a more active government is a daunting task. How can the government avoid infringing on the rights of citizens when there is an increasing demand for government involvement and funding implicating those very rights? Where is the line?

Within the Supreme Court there are two major views that compete on this issue. Chief Justice William Rehnquist and Justice Antonin Scalia argue that when the government funds expression, it has the "broad authority" to decide what to support. In other words, if the government is going to fund a program, it should have discretion in a variety of areas, including viewpoint considerations, when deciding what to fund. On the other hand, Justices Blackmun and Souter champion the approach that the First Amendment should apply to funding decisions just as it applies to traditional speech regulations. When the government creates an open forum for expression, they reason, the government should allow freedom of expression without regard to the viewpoint message being sent out. It should not impose censorship.

As a whole, the Court has generally tended to lean toward the idea that "government may not grant a benefit on the condition that a beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether." The Court has reasoned that "if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited." This would allow the government to "produce a result which [it] could not command directly."

The extent to which the government must be viewpoint-neutral when it funds speech by third parties is still unclear. However, when the government operates a program that by its terms appears to be open to all comers or a large number of speakers, the courts have generally held that the allocation of funding must b
Article Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”