Thanks to movies like Animal House and PCU, the word “fraternity” conjures up images of University sanctioned bastions of partying and pranks. The classic Hollywood formula often involves comedic attempts to win back University approval after the fraternity’s antics raise the ire of administration. What John Landis probably didn’t envision is a University’s refusal to sancion a sorority or fraternity because they require members to devote themselves to traditional Christian values, but that is exactly the story that unfolded at San Diego State University recently.
Alpha Delta Chi and Alpha Gamma Omega, a Christian sorority and fraternity, required its members to have “personal acceptance of Jesus Christ as Savior and Lord,” “active participation in Christian service,” and “regular attendance or membership in an evangelical church.” Officers of the sorority and fraternity were required to profess beliefs and practices “consistent with orthodox Christian beliefs.”
The sorority and fraternity sought official recognition from the University which would bring with it numerous benefits including University funding, use of the University’s name and logo, access to campus office space and meeting rooms, free publicity in school publications, and participation in various special University events. Officially recognized fraternities and sororities can be granted access to recruitment fairs, leadership conferences, and social activities.
The sorority and fraternity applied for recognition on numerous occasions, but were denied each time because they required their members and officers to profess a specific religious belief. These membership requirements conflicted with San Diego State’s nondiscrimination policy which the University requires all officially recognized student organizations to include in their bylaws. That policy states that on-campus status will not be granted to any student organization that restricts membership or eligibility to hold officer positions on the basis of race, sex, color, age, religion, national origin, sexual orientation, disability, or other protected category. The University’s policy reflects the California State University system’s Non-Discrimination Regulation.
Although the sorority and fraternity were denied official recognition, they are still free to hand out flyers and post signs to recruit new members in areas open to all groups, recognized or not, such as the “free speech steps” of the student union and the wall next to the University’s bookstore. They could also use the University’s rooms for meetings and events, but not for free or at reduced prices, as officially recognized groups may do.
The sorority and fraternity brought suit against the University alleging the non-discrimination policy for sanctioned student groups infringed on their rights of Free Speech and Association, Free Religious Exercise and Equal Protection under the First and Fourteenth Amendments of the U.S. Constitution. After the district court granted summary judgment in favor of the University on all counts, the sorority and fraternity appealed.
Last year, in Christian Legal Society Chapter of the Univ. of Calif. Hastings College of Law v. Martinez, the U.S. Supreme Court held that a public University does not violate the Constitution when it conditions official recognition of a student group, and the attendant use of school funds and facilities, on the organization’s agreement to open eligibility for membership and leadership to all students. This was referred to as an “all-comers policy” because it prohibited all membership restrictions. The Supreme Court, however, expressly declined to address whether this would extend to a narrower policy that merely holds that membership and leadership cannot be restricted to students of specified races, genders, religion, or other protected classification.
This is exactly what the Ninth Circuit grappled with here in Alpha Delta Chi-Delta Chapter v. Reed. First, the Court found that official recognition of student groups is a “limited public forum.” Official recognition is not open for indiscriminate public use, but is instead limited to certain groups – student organizations. Because it is a limited public forum, the sorority and fraternity’s exclusion from University recognition does not stifle Free Speech if the University’s requirement that student groups adhere to the nondiscrimination policy is reasonable in light of the purpose of the limited forum and viewpoint neutral.
The Court held that requiring student groups to adhere to a nondiscrimination policy is reasonable in light of the University’s intended purpose: to promote diversity and nondiscrimination. Moreover, the sorority and fraternity have alternative avenues of communication other than the forum from which they are excluded. They are still free to use campus facilities for meetings at a cost, to set up tables and displays in public areas, and to distribute literature on campus.
The Court rejected the sorority and fraternity’s argument that the University is discriminating against their viewpoint by allowing secular groups to discriminate on the basis of belief, while prohibiting the sorority and fraternity from doing so on the basis of religious beliefs. For example, the University’s Republican group could restrict membership based on political views. However, this is insufficient to prove viewpoint discrimination, because there is no evidence that the University implemented its nondiscrimination policy for the purpose of suppressing the sorority or fraternity’s viewpoint, or of restricting any sort of expression.
While even content-neutral antidiscrimination laws can sometimes violate the First Amendment right of expressive association when used to force a private group to accept members who materially interfere with the message the group wishes to express, that was not the case here. The University was not forcing the sorority or fraternity to accept unwanted members, but only conditioning the receipt of certain benefits on the adoption of the nondiscrimination policy. Accordingly, the acceptance of the nondiscrimination policy neither stifled Free Speech nor Freedom of Expressive Association.
The University’s nondiscrimination policy is also a policy of general application targeting neither religious belief nor conduct. It does not impose special disabilities on the sorority or fraternity or other religious groups. The Court held, therefore, that it did not violate the Free Exercise Clause or the Equal Protection Clause.
However, there were triable issues of fact as to whether the University applied the policy uniformly. There was some evidence that certain student organizations were granted official recognition even though those groups restricted membership or eligibility to hold office based on religion or national origin, though unclear were the reasons for this as was whether the sorority or fraternity were denied similar consideration. Therefore, the Court remanded the case back to the district court for further proceedings on this issue.
This case reinforces that governmental entities may condition the receipt of certain benefits on acceptance of nondiscrimination policies of general application, so long as the government uniformally applies those policies to all who receive the government benefits.