Student Groups Can’t Discriminate and Get Paid for It

A federal appeals court decision Tuesday ruled that San Diego State University could withhold funding and other campus benefits to a Christian fraternity and sorority that barred gays and lesbians as well as non-Christians.

The Ninth Circuit Court of Appeals said that the Constitution allows a public university to withhold funds selectively as long as its purpose is to combat discrimination rather than to suppress free speech. The Court found that SDSU’s policy is designed to “remove access barriers imposed against groups that have historically been excluded.” Judge Harry Pregerson, writing for the Court, said that religious organizations are free to set their own membership rules, but “cannot oblige the university to subsidize them.” The ruling was 3-0.

“This ruling reaffirms the Supreme Court’s decision last year that student groups have the right to discriminate, but they don’t have the right to get paid by the government to do it,” said David Blair-Loy, legal director for the ACLU of San Diego & Imperial Counties. “In this case, the plaintiffs refused to comply with university policies requiring student groups who seek the benefits of formal recognition to refrain from discriminating on the basis of religion or sexual orientation in accepting members or electing leaders.” Even without that formal recognition, though, such groups remain free to speak and associate on campus–they just do not benefit from the official subsidies granted to recognized groups.

The San Diego ACLU filed a friend-of-the-court brief in support of dismissing the plaintiffs’ First Amendment claims, arguing that non-discrimination policies regulate conduct, not speech, and do not violate plaintiffs’ right to expressive association or free exercise of religion. In an appellate brief, the San Diego ACLU and the ACLU LGBT & AIDS Project and the ACLU Program on Freedom of Religion & Belief argued that the university had a compelling interest in eradicating invidious discrimination in programs to which it provides official support and that organizations that violate viewpoint-neutral rules against discrimination have no constitutional right to official subsidies.


Read the Ruling