Eugene is correct and this is extremely helpful. But I think part of what is
happening here is an agenda to incrementally reach a doctrine that requires
public support for private schools. No? It is the "fairness" reasoning that
has undergirded the push for federal public money for religious mission on the
theory that it is "unfair" to exclude them.
Marci
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Volokh, Eugene" <vol...@law.ucla.edu>
Date: Tue, 11 May 2010 06:53:55
To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu>
Subject: RE: Factual Clarification re CLS
Rick Duncan writes: "Consider this alternative description: Hastings is
attempting to create a designated limited public forum for all student groups
that are willing to waive their right to expressive association by being open
to include all comers as members, including those who would detract from the
group's expressive purposes.... Why is this condition on expressive association
not an unconstitutional condition?"
I think the answer is that it's just a constitutionally permissible
decision not to subsidy constitutionally protected activity. Consider some
examples:
A state is attempting to subsidize a wide range of medical care, but not
for abortions. If you want an abortion, get it with your own money.
Constitutional.
A state is allowing a wide range of medical care in its hospitals, but not
abortions. If you want an abortion, get it on your private property.
Constitutional.
A state is attempting to subsidize public education, but not private
education. If you want private education, get it with your own money.
Constitutional.
The federal government is attempting to create a designated public forum --
a subsidy administered through 501(c)(3) tax deductions for charitable
contributions -- for pretty much all nonprofit speakers, but only those who
don't use tax-exempt money for constitutionally protected electioneering, even
though this detracts from the group's expressive purpose. If you want to
electioneer, do it with unsubsidized funds. Constitutional.
A university is attempting to create a designated public forum for all
student groups that are run by students, but not those who exercise their right
to expressive association by being run chiefly by outsiders, even when their
expressive purpose would be better served by being run by outsiders (e.g., if
the group belongs to an ideological movement that stresses central control by a
church, or operation by the community or some subset of the community rather
than by students). If you want to associate in a way that is run by outsiders,
do it with your own money and your own property. Constitutional, right?
A university is attempting to create a designated public forum for all
student groups that organize themselves democratically, but not those who
exercise their right to expressive association by organizing themselves in a
way in which the group is dominated by one student leader, even when their
expressive purpose would be better served by being run nondemocratically. If
you want to associate in a way that isn't democratic, do it with your own money
and your own property. Constitutional, right?
A university is attempting to create a designated public forum for all
student groups that decline to discriminate in officers and members based on
race, religion, sex, sexual orientation, etc., but not those who exercise their
right to expressive association by so discriminating, even when their
expressive purpose would be better served by discriminating. If you want to
associate in a way that discriminates, do it with your own money and your own
property. Why wouldn't this be equally constitutional?
Eugene
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