Restoring the Right to Risk

Universities play—or should play—a critical role helping the next generation of teachers, legislators, judges, and voters understand how to live together in our constitutional republic. For many students, they represent the first opportunity to join with others to address a need or advocate for a cause, which is a freedom central to American liberty. But while the Supreme Court has mostly gotten free speech on campuses right, it has left freedom of association at risk. Congress should ensure that our taxpayer-funded public universities are modeling the constitutional values necessary to preserve the republic for the next 250 years.

In 1831, French statesman Alexis de Tocqueville toured the new United States, seeking to better understand what made early America exceptional in sustaining self-government. One big factor, he believed, was our culture of association. “Americans of all ages, all conditions, and all dispositions constantly form associations,” he wrote. “Wherever at the head of some new undertaking you see the government of France or a man of rank in England, in the United States you will be sure to find an association.” 

Where else would ordinary Americans develop the ability to solve their own civic problems, and where, in the absence of a privileged noble class, would its natural leaders arise? Private associations addressed both. A community that could work together voluntarily to address local needs would reduce the demand for top-down government. And an individual whose natural leadership skills were revealed through work in voluntary associations could show himself worthy of trust in elected office.   

If you’ve been on a college campus recently, you know Americans still love to associate. Larger universities commonly feature hundreds of student groups—from those focused on chess and cheese to chemistry and Calvinism. As I learned on recent college tours with my daughters, every tour guide will also tell you that if your interests aren’t represented you can start your own group. It sounds like Tocqueville’s America with a dining hall and a football team. 

And rightly so. Our universities are the “marketplace of ideas” where the First Amendment’s protections apply with full force. For decades, the Supreme Court has zealously protected free speech on college campuses. The result is that for all our shortcomings, America strongly protects free speech, on and off campus. Of all the times and places in the history of the world, if you have something to say, you should choose right now in the United States of America. 

But unfortunately, the Supreme Court’s decisions on freedom of association leaves that crucial freedom at some risk, especially on campus. Although many Supreme Court decisions have protected freedom of association for religious and political groups, a 2010 decision in Christian Legal Society v Martinez is a troubling outlier. 

In Martinez, a narrow 5-4 majority of the Supreme Court held that the University of California-Hastings law school in San Francisco could require a small Christian student group to accept “all comers” for its leadership. The group simply sought to meet like any other group on campus, holding Bible studies and discussing issues of interest to the Christian law students. But the law school declared an “all comers” policy requiring every student group to agree to allow anyone to hold a leadership position—including Bible study leaders—regardless of their religious beliefs or conduct. In other words, an avowed atheist could serve as a group leader, which would defeat the whole purpose of Christian students gathering together.   

Justice Ginsburg’s decision treats freedom of association as a second-tier right. It forces student groups to choose between equal access to a university speech forum or their freedom of association. If they want to speak like other groups on campus, the Court decided, universities can require student groups to give up the most essential aspect of freedom of association—the ability of a group to decide who speaks for it. Student groups could be forced to choose one First Amendment right or the other. 

Martinez is a decision inconsistent with both the cases that came before it and every decision since. Nevertheless, other universities have tried to use this new power against unfavored (often conservative and faith-based) student groups. Faith-based and conservative groups, including those at the University of North Carolina, have had to fight to remain on campus and some colleges have disbanded their fraternities and sororities for being, shockingly, single-sex. To prevent such crises, North Carolina and at least fifteen other states have enacted laws to protect student association on their public university campuses. 

Congress is now considering legislation to restore freedom of association on campuses nationwide. The Equal Campus Access Act, H.R. 5505/S.2859 would deny funding from the Department of Education for public universities that do not protect freedom of association for religious student organizations on their campuses. Similarly, the Freedom of Association in Higher Education Act, H.R. 2555, would protect the freedom of students to form single-sex fraternities and sororities and prohibit their institutions from taking adverse action against them for the exercise of this freedom. Both would better protect the First Amendment rights of students nationwide. 

From Samuel Adams and the Sons of Liberty, and for 250 years hence, Americans have worked with one another to improve their communities and keep the republic. Congress can help to insure this spirit remains alive on campus, inspiring the next generation to form their own communities and practice this distinctly American form of civic life.     

Casey Mattox serves as Vice President for Legal Strategy at Stand Together. He is a First Amendment litigator who previously represented the Christian Legal Society in CLS v Martinez.