Coercion as freedom

In its usual flurry of end-of-term decisions, the Supreme Court issued an important opinion affecting liberty on college campuses (or what’s left of it).  The opinion concerned the lawsuit by a Christian group at the Hastings College of Law, a public school affiliated with the University of California.  The Christian group was denied the right to form an official student organization because they employed admission requirements that discriminated against homosexuals.  They are apparently the only student organization denied official status (and funds) in the history of the law school.  Many of the groups on campus support activities and causes that Christians and others find immoral.  At least they should be allowed to form their own group in opposition to these groups, but the Court upheld their right to form an official group.

I’m quite unclear about the best way to capsulize the arguments in this case and comment on them.  Perhaps Marcus can do that or someone else more knowledgable.  My gut tells me that Justice Alito’s conclusion that this case is “a serious setback for freedom of expression in this country” is the correct way to view the outcome.   Although anti-discrimination laws and policies sound nice, they seem to be frequently used by politically correct leftists to stamp out dissent by religious groups and others on the right.   In short, they usually end up supporting leftist orthadoxy in the name of non-discrimination.

But the more troubling point about this case to me was no one on the Court seems to be making the argument that any funding for all these student groups is Constitutionally questionable because they get their funding by coercing all students to pay required fees.

Just as the left wants to prohibit speech in the form of campus speech codes (or campaign finance restrictions), they want to force speech in the form of requiring students to fund the activities of these highly activist, overwhelming leftist campus groups.  And because these groups use campus buildings and resources in addition to the variable expenses funded by the fees, the taxpayers are also coerced into supporting them.

Why should highly political extracurricular associations be allowed to rely on coercion to fund their activities? If students can afford to pay the mandatory fees that fund these groups, then they can certainly afford to fund groups they actually support on a volunteer basis.  Of course, what is happening here is political activists using coercion to free-ride off the larger group.

The state frequently uses (in fact, is defined by) coercive power.  Thus public education as a whole is based on coercion.  Though I would run education in a much different way, I can live with the state having an interest in education (though I can’t say I see much of an argument for state-supported professional education; students at Hastings will go on to have careers and average salaries far higher than the average Joe-taxpayer who pays for their education).  But the coerced funding of extracurricular groups — especially political groups — is beyond any reasonable use of state power and is a serious violation of freedom of speech.  Forcing people to support speech is as wrong as prohibiting speech.

Apparently this issue is settled law.  Someone should unsettle it.


5 thoughts on “Coercion as freedom

  1. This is a nice point, Sven. The intuitive point that publicly- (that is, coercively-) funded institutions should be non-discriminatory makes sense only as far as the public funding goes. As you point out, these organizations are funded by fees that are not public, but private. And it’s hard to see what the free speech rationale for compelling people to pay for the expression of viewpoints they do not agree with, and being denied the opportunity to express their own, can possibly be here. This is confusion. Dare I suggest (without Jason wanting to strangle me) that it is part of the product of the lamentable private portion of the Civil Rights Act that we can no longer get clear jurisprudence on the private right to discriminate?

    1. I’ll grant you that the “private” portion of the Civil Rights Act has led to a lot of confusing law on the private right to discriminate. I am one who supports the state’s right to require that business who serve the public (restaurants, hotels, gas stations, etc.) not discriminate on the basis of race, but the issue of speech is altogether different, I think. What if a restaurant were required to allow anyone who wished to come into the restaurant, stand on the table and make loud speeches to all the other customers.

      There are some hoaky arguments about how these student associations enrich the educational environment, meaning everyone should pay for them. Balderdash!

  2. i went to a state school in upstate ny, that had a similar student association (surprising name, given that you are, by definition, a member. association whether you like it or not).

    a rabid hippie glibertarian formed the group. his answer to all questions was “well markets will figure it out, that’s what they do.”

    he successfully petitioned and was admitted to have a college libertarians group. after a pretty serious drug related offense (in that he was on drugs and assaulted someone, not that he had serious possession) i became president of the college libertarians.

    on principle, i dissolved the group. libertarians should not form publicly funded groups.

  3. I plan to take a few days to digest the opinions in McDonald v. Chicago, CLS v. UC Hastings, and Bilski v. Kappos before commenting on them.

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