Do As I Say, Not As I Do: The Myth of Neutrality in Nondiscrimination Policies at Public Universities

BY Andrew D. Brown

On September 1, 2011, the headline adorning the front page of The Daily Tar Heel, the student newspaper of theUniversity of North Carolina at Chapel Hill, all but guaranteed controversy: “UNC Christian A Capella Group Ousts Gay Member.” Sure enough, the events following Psalm 100’s unanimous decision to vote out a member due to his beliefs regarding homosexuality prompted numerous letters to the editor, a discussion panel hosted by the School of Journalism, and even an official university review of the organization’s actions. After the university decided that the group’s action did not violate the school’s nondiscrimination policy, calls immediately came to revise the policy, which had been in place since a 2005 lawsuit prompted changes to the then-existing policy on First Amendment grounds. In January 2012, a task force comprised of UNC faculty, staff, and students began meeting to discuss possible revisions.

Litigation pitting public university nondiscrimination efforts against students’ First Amendment rights is a recent phenomenon in the federal courts. In the short time since these cases first started appearing in the mid-2000s, the number of cases in federal court challenging the nondiscrimination policies for student organization programs of various public universities has increased precipitously. The legality and propriety of these policies has taken center stage in a larger national debate regarding the proper balance between goals of diversity, equal access, and nondiscrimination on one hand, and First Amendment freedoms on the other.

Alpha Delta Chi v. Reed is the most recent addition to this jurisprudence. Here, the United States Court of Appeals for the Ninth Circuit addressed the following question: if an “all comers” policy is constitutionally valid, what of a nondiscrimination policy that only prohibits discrimination on specific classifications such as religion or race? Pursuant to the standard test for speech restrictions in limited public forums, the court found no facial violations after reviewing the policy for reasonableness and viewpoint neutrality. However, the court’s opinion suffers significant legal problems in its application of First Amendment principles, logical problems in the way it conceptualizes nondiscrimination policies, and practical problems for those who must implement the holding. As such, this Comment argues for several conceptual and practical changes in the way that public universities typically conceive of and implement their nondiscrimination policies for student organization programs.

DOWNLOAD PDF | 91 N.C. L. Rev.280 (2012)