Introduction

Student organizations are a common part of the culture and atmosphere of higher education (post-secondary) institutions in the United States of America. The first student organization originated in the United States at the College of William and Mary, in Williamsburg, Virginia, in 1750 was the The F. H. C. Society, commonly known by the backronym The Flat Hat Club.[1] Though student organizations had been around for over 260 years, the student organizations seen today on many college and university campuses, is very different from organizations like the Flat HatClub. Beyond the early beginnings of student organizations, the modern student organization may either be local (specific to the interests and population of an institution) or national (institution specific groups, but united by a large scale coordinating organization). The groups may also exist solely in the collegiate environment, like many special interest groups, but also extend beyond, such as Habitat for Humanity or Amnesty International. Professional organizations exist as well, according to a field or discipline, and seek to aid in networking and placement beyond the college and university years. What has been the topic of legal debate since the 1960’s is the right to which a public/state institution has to discern what organizations it officially recognized and funds.


In 1995, the U.S. Supreme Court issued the decision on Rosenberger v. Rector and Visitors of the University of Virginia.[2] The case is notable in that it, in essence, secured funding for student publications and organizations at public universities, as long as they met the criteria of the university, that did not violate the First Amendment of the United States Constitution. The case is based upon a series of case beginning in the 1970's and continuing into the present day. And in the proceeding, these cases as well as the details of Rosenberger, and an evaluation of the current legal climate surrounding public university recognition of student organizations.
Student Organization Fair at Clarion University
Student Organization Fair at Clarion University






Preceding Cases

The first major case that constitutionally protected a student organization's right to be recognized at a public institution was Healy v. James.[3] In this case, students at Central Connecticut State College (Central Connecticut University) were seeking recognition as a chapter of the Students for a Democratic Society (SDS), and were promptly denied recognition by the college administration. The action was taken on the grounds that because the institution disagreed with the ideals of the National Students for a Democratic Society and that the administration feared that the organization would protest and materially disrupt the educational process (grounds for preventative measures cited in Tinker v. De Moines[4] ). The Supreme Court ruled in favor of Healy et. al. noting that "Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right."[5] In the decision, the Court upholds rulings in Keyishian v. Board of Regents[6] , Sweezy v. New Hampshire[7] , and Baird v. State Bar of Arizona[8] , among others in reaffirming concepts of academic freedom and the freedom of
association.
Bench for Recognized Student Organizations at George Mason University
Bench for Recognized Student Organizations at George Mason University


Another major Supreme Court case to address college and university student organization recognition is Widmar v. Vincent, a case that discussed the issue of a student organization utilizing an institution's facilities.[9] In Widmar the Court held that an institution could not discriminate based on a particular type of content in granting access to its facilities, as this would indeed violate the organization's First Amendment rights[10] .

Another important case, in terms of the rights of students organizations and their members is that of the Iota Xi Chapter of the Sigma Chi Fraternity et. al. v. George Mason University et. al.[11] In this case the fraternity, Sigma Chi, held held an event wherein a member had dressed in blackface and women's clothing inorder to portray an "ugly woman." The sanctions against the organization were struck down by the Court, in that a specific viewpoint, in this case parody, was discriminated against and as a result the students' free speech had been violated, regardless of the offensiveness or poor taste of the incident.[12]



Rosenberger v. Rector & Visitors of the University of Virginia
Rosenberger v. Rector and Visitors of the University of Virginia, specifically, is a U.S. Supreme Court case wherein a student organization/publication applied to the institution for the funding of their publication, as other organizations had done. However in this instance the University of Virginia (UVA), did not approve funding of the publication on the grounds that the funding of the publication would violate the "establishment clause" of the First Amendment as well as university policy.[13]
Statue of Bilnd Homer at the University of Virginia
Statue of Bilnd Homer at the University of Virginia

Background

The petitioner in the case consisted specifically of Ronald W. Rosenberger, a student at the University of Virginia and on the editorial staff of the student publication Wide Awake: A Christian Perspective at the University of Virginia, technically known at UVA as a "Contracted Independent Organization" or CIO[14] Rosenberger and the publication requested funding in the amount of $5,800 from the Student Activities Fund to pay for the publishing costs;[15] as the university had committed to do so with other CIOs' publications.[16] The University of Virginia found the publication in violation of its policy and thusly denied Rosenberger et. al.request for funding on the basis that "'primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality,' as prohibited by the University's SAF Guidelines."[17] The Fourth Circuit Court affirmed the University's decision on the basis that "the University's invocation of viewpoint discrimination to deny third-party payment violated the Speech Clause, but concluding that the discrimination was justified by the necessity of complying with the Establishment Clause."[18]

Supreme Court Findings

In a 5-4 decision, the Supreme Court held that the University had violated Rosenberger et. al.s' First Amendment to free speech in the means of a financial burden.[19] In fact, as the majority opinion cites, the University had in previous practice supported other CIO publications, regardless of the viewpoint of the publication, including but not limited to religious publications.[20] Furthermore the Court held that "The violation following from the University's denial of SAF support to petitioners is not excused by the necessity of complying with the Establishment Clause."[21] Justice Anthony Kennedy, in writing for the majority opinion states explicity that, the University's actions constituted view point discrimination, stated: "Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.'[22]

Impact

Possibly the most notable outcome from this case is the differentiation between content and viewpoint discrimination. In the case of Widmar v. Vincent, the issue as stake was the content of the speech by the organization, religious activity, was being discriminated against by the institution.[23] Contrastingly, in Rosenberger, if the application of a policy is not uniform, as was the case with the funding of the CIOs at UVA, and a particular organization is discriminated on based solely upon the organizations particular and specific viewpoint, this discrimination is very clearly a violation of one's freedom of speech, regardless of the institutions haste in in this case of applying its policy in defense of upholding the Establishment Clause of the first Amendment.[24] Furthermore Rosenberger has been used in both defense and further definitions of free speech and regulation of student organizations.


Recent Developments

Two recent court cases are germane to the ways by which a public institution may regulate student organization and funding: Board of Regents of the University of Wisconsin System v. Southworth & Christian Legal Society v. Martinez. These cases were decided in favor of the Student and the Institution respectively, and as such, provide legal guidance from both sides of the university, however there are issues yet to be addressed by the Court.

Board of Regents of the University of Wisconsin System v. Southworth

In the case of Southworth a group of students took issue with the University's "Student Organization Fee," a way by which the university collected and maaged funds to be distributed to student organizations at a given institution.[25] The particular issue that the students confronted, is that the students disagreed with the viewpoint of some of the student organizations and thus their funds were being misued by the institution and in effect violation their freedom of speech.[26] In the case the court found that the institution had not in fact violated the students' First Amendment rights, in that the monies were appropriated without discrimination on viewpoint or content, and as a result of the indiscriminate nature of the appropriations and allocations the institution was permitted to continue to do so.[27] The Court, in effect built upon the ruling in Rosenberger, in that funds, specifically collected from students for the purpose of funding student organizations, could manage and distribute those funds, regardless of the fact that the funds came from the students, and that the students may disagree with the eventual use of the funds.
CLS Logo/Banner
CLS Logo/Banner


Christian Legal Society v. Martinez

In Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez, et. al. the Christian Legal Society (CLS) Chapter, also known as Hastings Christian Fellowship (HCF) was found, by the administration, in violation of the School's discrimination policy for "Registered Student Organizations" (RSOs).[28] As a result of the violation, UC, Hastings College of Law refused to recognize the organization, and the HCF sued on the grounds th their First Amendment Rights had been violated.[29] The action on behalf of HCF was the statement of belief required by members: "I believe in: The Bible as the inspired word of God; The Deity of our Lord, Jesus Christ, God's son; The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return; The presence and power of the Holy Spirit in the work of regeneration; [and] Jesus Christ, God's son, is Lord of my life"[30] The Court held that amongst other things, that HCF was seeking exemption to the policy, in order to gaind recognition, and thus as the school had duley practiced its "all comers'" policy, then HCF by failing to abide by this policy, could be denied recognition.[31] Furthermore, the syllabus of the case states that "The all-comers policy is a reasonable, viewpoint-neutral condition on access to the RSO forum; it therefore does not transgress First Amendment limitations."[32] The court also cites Rosenberger as a standard, by which to measure viewpoint discrimination, and that the enforcement of the policy does not violate First Amendments or the parameters of a limited-public forum.[33] At this point, I yield space to a PBS video on the case. The Supreme Court did, however, decline to fully address the constitutionality of the "all comers" policy at Hastings, but only the issue of the accused infringement of HCF's First Amendment Rights.[34]


Closing Remarks

Student organizations on college and university campuses are commonplace in the United States. Many schools tout the sheer number of them, sometimes in the hundreds, to incoming students, showing that there is an organization for nearly every interest or passion. Through the cases of Healy, Widmar, Rosenberger, and Southworth the rights for student organizations to be recognized and funded by public institutions, regardless of content and viewpoint, has been upheld by the United States Supreme Court, as well as lower courts. With the recent development in the CLS v. Martinez case, institutions rights have also been upheld, in that they have the ability to have and enforce non-discrimination policies for their student organizations, and in essence regulate the organizations in some way. However, it has yet to be seen how CLS v. Martinez will be enforced, as the question of the constitutionality of the "all comers" policy has yet to be discussed, as well as a organizations role in social media. Moreover, the particular issue of social media, including but not limited to social networking, and to an extent blogging, a definition of "press" must be discussed as well as what is covered on sites that require password protection and security settings. As evidence of this, the issue over a blogger's handling of a lost iPhone 4 last spring caused controversy the criminality of the issue was discussed, as to whether the blogger was protected by standards of Free Press.[35] If bloggers begin to be treated as journalists, with the shift in media culture, then student organizations blogs and their content, may be called into question. As these issues come into play, appropriate use policies, and harassment most be defined for the 21st century.


References


  1. ^ Shhh! The Secret Side to the College’s Lesser Known Societies - The DoG Street Journal
  2. ^
    515 U.S. 819 (1995)
  3. ^
    408 U.S. 169 (1972)
  4. ^ 393 U.S. 503 (1969)
  5. ^ 408 U.S. 169 (1972)
  6. ^ 389 U.S. 589 (1967)
  7. ^ 354 U.S. 234 (1957)
  8. ^ 401 U.S. 1 (1971)
  9. ^
    454 U.S. 263 (1981)
  10. ^ Ibid.
  11. ^
    773 F.Supp. 792 (E. Dist. Va. 1991), aff’d, 993 F.2d 386 (4th Cir. 1993)
  12. ^ Melear, K. B., Alexander, L. B., Hendrickson, R. M., & Beckham, J. Student Free Speech in Public Higher Education. (2010). Dayton, Ohio: Education Law Association.
  13. ^
    The Oyez Project, Rosenberger v. University of Virginia , 515 U.S. 819 (1995)
    available at: (http://oyez.org/cases/1990-1999/1994/1994_94_329)
  14. ^
    515 U.S. 819 (1995)
  15. ^ The Oyez Project, Rosenberger v. University of Virginia , 515 U.S. 819 (1995)
    available at: (http://oyez.org/cases/1990-1999/1994/1994_94_329)
  16. ^ 515 U.S. 819 (1995)
  17. ^ Ibid.
  18. ^ Ibid.
  19. ^
    The Oyez Project, Rosenberger v. University of Virginia , 515 U.S. 819 (1995)
    available at: (http://oyez.org/cases/1990-1999/1994/1994_94_329)
  20. ^ 515 U.S. 819 (1995)
  21. ^ Ibid.
  22. ^ Ibid.
  23. ^
    Melear, K. B., Alexander, L. B., Hendrickson, R. M., & Beckham, J. Student Free Speech in Public Higher Education. (2010). Dayton, Ohio: Education Law Association.
  24. ^ Ibid.
  25. ^
    529 U.S. 217 (2000)
  26. ^ Bird, L. E., Mackin, M. B., & Schuster, S. K. The First Amendment on Campus: A Handook for College and University Administrators. (2006). National Association of Student Personnel Administrators, Inc.
  27. ^ Ibid.
  28. ^
    561 U.S. . (2010)
  29. ^ The Oyez Project, Christian Legal Society Chapter v. Martinez U.S. ___
    available at: (http://oyez.org/cases/2000-2009/2009/2009_08_1371)
  30. ^ Ibid.
  31. ^ 561 U.S. . (2010)
  32. ^ Ibid.
  33. ^ The Oyez Project, Christian Legal Society Chapter v. Martinez U.S. ___
    available at: (http://oyez.org/cases/2000-2009/2009/2009_08_1371)
  34. ^ Ibid.
  35. ^
    http://www.techi.com/2010/04/iphone-4-gizmodo-apple-bloggers-are-journalists/