Subsidizing Discrimination: Resolving CLS v. Martinez

Law Review — Comment Submission — Cover Page
Title of Comment: Subsidizing Discrimination Through

Recognition: Associational Rights in Public Colleges and the Right
to Exclude
Daniel Watts
Projects Editor, Articles Editor
UC Davis Law Review
COMMENT
SUBSIDIZING DISCRIMINATION THROUGH RECOGNITION:

ASSOCIATIONAL RIGHTS IN PUBLIC COLLEGES AND THE RIGHT TO
EXCLUDE
TABLE OF CONTENTS
INTRODUCTION…………………………………………………. …1
I. BACKGROUND ................................................................... 3
A. The Right Not to Associate ....................................... 5
B. No Government Obligation to Subsidize Speech ...... 9
C. State Interest in Nondiscrimination ........................ 13
II. THE CIRCUIT SPLIT ......................................................... 15
A. Chi Iota: State Interest in Nondiscrimination
Outweighs Group’s Associational Rights ............... 16
B. Walker: Group’s Associational Interests
Outweigh State’s Interest in Nondiscrimination .... 19
III. ANALYSIS ....................................................................... 21
A. Ensuring Nondiscrimination Through Campus
Regulations Satisfies Strict Scrutiny Analysis ........ 22
B. The Public’s Right Not to Subsidize
Discrimination Makes Group’s Associational
Interests Less Compelling ....................................... 29
C. University’s Right to Determine Educational
Opportunities Makes Its Interest in
Nondiscrimination More Compelling. .................... 35
IV. CONCLUSION…………………….……………………………37
INTRODUCTION
Donald Nguyen enrolls at UC Berkeley.1 Seeking new friends,

he samples the campus fraternities.2 He joins Alpha Beta, a
Christian-interest fraternity.3 Alpha Beta discriminates in its
membership on the basis of religion — only Christians may join.4
Nguyen is not a Christian himself, but joins anyway, hiding his
religion from the group.5
UC Berkeley maintains a process through which student
organizations may obtain official recognition, allowing them free
or discounted use of campus facilities.6 A recognized group may
also ask the student government for a share of student activity
fees.7 To become recognized, a group must adhere to UC
Berkeley’s nondiscrimination policy.8 The policy bans
discrimination in groups on the basis of religion.9
In his sophomore year, Alpha Beta discovers that Nguyen is
not a Christian, and the fraternity expels him.10 Nguyen notifies the
UC Berkeley dean, who revokes Alpha Beta’s charter for violating
the nondiscrimination policy.11 The fraternity sues UC Berkeley,
alleging a violation of its First Amendment associational rights.12
UC Berkeley moved to dismiss, arguing that its nondiscrimination
policy trumps the fraternity’s associational interest.13
1
This hypothetical is based on the facts in Christian Legal Soc’y v. Walker, 453
F.3d 853 (7th Cir. 2006), and Chi Iota Colony of Alpha Epsilon Pi Fraternity v.
City Univ. of N.Y., 502 F.3d 136 (2d Cir. 2007).
2
See supra note 1.
3
See supra note 1.
4
See supra note 1.
5
See supra note 1.
6
See supra note 1.
7
See supra note 1.
8
See supra note 1.
9
See supra note 1.
10
See supra note 1.
11
See supra note 1.
12
See supra note 1.
13
See supra note 1.
1
The First Amendment protects individuals’ rights to form
associations.14 Courts closely scrutinize government policies that
restrict associational rights, balancing the associative interest
against the state interest behind the restriction.15 Federal circuit
courts of appeals disagree on whether a university’s interest in
eradicating discrimination is sufficiently compelling to outweigh a
student group’s associational interest.16
This Comment argues that a university’s interest in eradicating
discrimination outweighs a student group’s associational interest.17
Part I describes associational rights under the First Amendment.18
Part II examines the split between the Second and Seventh Circuits
over whether a student group’s free association interest trumps a
university’s nondiscrimination interest.19 Part III argues that the
state’s interest in nondiscrimination outweighs a student group’s
associational interest for three reasons.20 First, as the Supreme
Court has explicitly held, eradicating discrimination is a
compelling state interest.21 Second, a public university has a right
14
See Chi Iota, 502 F.3d at 139; Walker, 453 F.3d at 865. See generally Boy
Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (holding First Amendment
contains implicit right to associate); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)
(holding state interest in nondiscrimination outweighs private group’s
associational interest in expelling women).
15
See Chi Iota, 502 F.3d at 139; Walker, 453 F.3d at 867. See generally Dale,
530 U.S. at 648 (holding First Amendment contains implicit right to associate
which outweighs state interest in preventing private group from expelling
homosexuals); Roberts, 468 U.S. 609 (holding state interest in
nondiscrimination outweighs private group’s associational interest in expelling
women).
16
See Chi Iota, 502 F.3d at 136 (finding university’s compelling interest in
eradicating discrimination justifies infringing upon student group’s associational
interests); Walker, 453 F.3d at 853 (finding university’s interest in eradicating
discrimination not compelling enough to justify infringing upon student group’s
associational interests); see also Christian Legal Soc’y v. Kane, No. 06-15956,
2009 WL 693391, at *1 (9th Cir. Mar. 17, 2009) (citing Truth v. Kent Sch. Dist.,
542 F.3d 634 (9th Cir. 2008) (holding law school’s mandate that recognized
student group accept all-comers as voting members to be viewpoint neutral and
reasonable).
17
See infra Parts I-III.
18
See infra Part I.
19
See infra Part II.
20
See infra Part III.
21
See infra Part III; see also Grutter v. Bollinger, 539 U.S. 306, 329 (2003)
(holding university has compelling interest in determining its own student body);
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (holding university
has compelling interest in achieving diverse student body); Walker, 453 F.3d at
2
not to subsidize groups that discriminate.22 A state actor like a
university may attach stipulations to funds without running afoul
of the First Amendment.23 Third, courts should give deference to a
university’s determination of its educational mission.24 The
Supreme Court has recognized that a university, not a court, is in
the best position to determine what is vital to its educational
mission.25 Thus, the Supreme Court should resolve this split by
explicitly holding that university nondiscrimination policies trump
student groups’ free associational rights.26
I. BACKGROUND
The Supreme Court recognizes a right to associate within the

First Amendment.27 This right includes the right to associate with
875 (Wood, J. dissenting) (finding state to have compelling duty to provide

equal treatment to all citizens).
22
See infra Part III.
23
See Rust v. Sullivan, 500 U.S. 173, 192-93 (1991) (holding as compatible
with First Amendment Congressional mandate that hospitals not use federal
money to promote abortion); see also Eugene Volokh, Freedom of Expressive
Association and Government Subsidies, 58 STAN. L. REV. 1919, 1927 (2006)
(arguing that if taxpayers, through elected representatives, do not want to
subsidize another’s constitutional right, that should suffice to justify state’s
refusal to subsidize). See generally Regan v. Taxation with Representation of
Wash., 461 U.S. 540, 546 (1983) (holding state subsidization of speech is not
necessary to fully realize First Amendment rights).
24
See infra Part III.
25
See Healy v. James, 408 U.S. 169, 171 (1972) (approaching case with special
caution in light of academia’s interest in preventing interference with
educational process); see also Grutter, 539 U.S. at 329 (deferring to university’s
determination of its compelling interest in attracting diverse student body);
Bakke, 438 U.S. at 312 (agreeing with university’s argument that it has
compelling interest in achieving diverse student body).
26
See infra Conclusion.
27
See, e.g., Baird v. State Bar of Az., 401 U.S. 1, 6 (1971) (finding that
associational freedom accompanies First Amendment right to petition, free
speech); NAACP v. Button, 371 U.S. 415, 430 (1963) (affirming that First and
Fourteenth Amendments include right to associate to further group’s views); La.
ex rel. Gremillion v. NAACP, 366 U.S. 293, 296 (1961) (subjecting regulations
restricting freedom of association to strict scrutiny, voiding them if not narrowly
tailored); NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 461 (1958) (holding
freedom of association to be indispensable liberty). See generally Boy Scouts of
Am. v. Dale, 530 U.S. 640, 648 (2000) (holding First Amendment contains
implicit right to associate); Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)
(holding right to associate also presupposes right not to associate); Healy, 408
3
persons of one’s own choosing and the right not to associate with
persons of one’s own choosing.28 The Court also recognizes a right
to expressive association, which is the right of individuals to
associate with others to further their beliefs.29 In the context of a
public school, the right to expressive association is controversial
because it impacts restrictions on how student organizations
compose their membership.30 Student groups seeking to exclude
students from membership often invoke the right to expressive
association when universities enforce nondiscrimination policies
that prevent such exclusion.31 The history of the right to associate
helps explain why the right has become controversial in public
schools.32
U.S. at 181 (holding First Amendment protects individuals’ right to associate to

further their personal beliefs).
28
Roberts, 468 U.S. at 622 (holding right to associate also presupposes right not
to associate). See generally Dale, 530 U.S. 640 (holding private organization has
First Amendment associational right to exclude homosexuals despite state’s
antidiscrimination statute); Healy, 408 U.S. at 181 (holding First Amendment
protects individuals’ right to associate to further their personal beliefs).
29
See Dale, 530 U.S. at 641 (holding that First Amendment protects association
merely engaging in expressive activity, regardless of whether it associates for
purpose of disseminating message); Bd. of Dir. of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537, 544 (1987) (reiterating First Amendment protection of
individuals’ right to form associations to engage in protected speech); Healy,
408 U.S. at 181 (holding First Amendment protects individuals’ right to
associate to further their personal beliefs). See generally Roberts, 468 U.S. at
622 (holding First Amendment protects right to engage in group efforts to
petition government, to speak, and to worship).
30
See Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502
F.3d 136, 136 (2d Cir. 2007); Christian Legal Soc’y v. Walker, 453 F.3d 853,
853 (7th Cir. 2006).
31
See Christian Legal Soc’y v. Kane, No. 06-15956, 2009 WL 693391, at
*1 (9th Cir. Mar. 17, 2009) (citing Truth v. Kent Sch. Dist., 542 F.3d 634 (9th
Cir. 2008)) (holding law school’s mandate that recognized student group accept
all-comers as voting members to be viewpoint neutral and reasonable); Chi Iota,
502 F.3d at 136; Walker, 453 F.3d at 853; see also Healy, 408 U.S. at 181
(denying official recognition to college groups burdens constitutional
associational right).
32
See, e.g., Dale, 530 U.S. at 640, 648 (holding First Amendment includes both
freedom to associate and not to associate); Healy, 408 U.S. at 181 (finding
freedom to associate implicit in freedoms of speech, assembly, and petition);
Roberts, 468 U.S. at 622 (holding First Amendment protects right to engage in
group efforts to petition government, to speak, and to worship).
4
A. The Right Not to Associate
The First Amendment protects the right to associate freely.33

This right includes the ability to form groups with other people and,
within the confines of the law, congregate with them.34 The right to
associate also presupposes a right not to associate.35 Courts
typically apply strict scrutiny to government restrictions on the
right to free association.36 Under strict scrutiny, the government
must narrowly tailor its restriction to further a compelling state
interest.37 When a court subjects a state action or regulation to
33
See Roberts, 468 U.S. at 622; see also Healy, 408 U.S. at 181 (finding
freedom to associate implicit in freedoms of speech, assembly, and petition). See
generally Dale, 530 U.S. 640 (holding First Amendment includes freedom to
associate); Chi Iota, 502 F.3d 136 (holding university must have compelling
interest in enacting nondiscrimination policy because policy impedes student
group’s freedom to associate under First Amendment); Walker, 453 F.3d 853
(holding university must have compelling interest in enacting nondiscrimination
policy because policy impedes student group’s freedom to associate under First
Amendment).
34
See Duarte, 481 U.S. at 544 (holding First Amendment protects right to form
associations to engage in protected speech); Healy, 408 U.S. at 181 (holding
First Amendment protects right to associate to further individuals’ personal
beliefs). See generally Roberts, 468 U.S. at 622 (holding First Amendment
protects right to engage in group efforts to petition government, to speak, and to
worship).
35
Dale, 530 U.S. at 648 (holding First Amendment protects right not to
associate); Roberts, 468 U.S. at 623 (holding First Amendment presupposes
right not to associate); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 234-35 (1977)
(holding that First Amendment protects individuals when government requires
them to associate, or bans them from refusing to associate).
36
See generally Roberts, 468 U.S. at 623-24 (determining constitutionality of
infringement on associational interests by using strict scrutiny test of whether
state’s policy is least restrictive means of achieving compelling interest); Dale,
530 U.S. 640 (applying strict scrutiny to state antidiscrimination law that
impedes Boy Scout organization’s associational right to exclude); Walker, 453
F.3d 853 (holding restrictions on right to expressive association require strict
scrutiny analysis); Pi Lambda Phi Fraternity v. Univ. of Pittsburgh, 229 F.3d
435, 445-46 (3d Cir. 2000) (applying strict or exacting scrutiny to restrictions
that directly burden group’s associational rights).
37
See Roberts, 468 U.S. at 623-24 (determining constitutionality of infringement
on associational interests by using strict scrutiny test of whether state’s policy is
least restrictive means of achieving compelling interest); Chi Iota, 502 F.3d at
143-44 (balancing state interest against student group’s associational interest to
determine whether state interest passes flexible version of strict scrutiny test);
Walker, 453 F.3d 853 (holding restrictions on right to expressive association
require strict scrutiny analysis); Pi Lambda Phi, 229 F.3d at 445-46 (applying
5
strict scrutiny, the government usually loses.38 In practice, however,
courts do not apply strict scrutiny categorically to statutes that
affect associational freedoms.39 Instead, courts use a balancing test
to determine how strict their scrutiny will be.40 The test balances
the intimacy of the associational interest against the legislative
interest in restricting the association.41 Courts afford greater weight
to intimate associational interests than attenuated ones.42 Courts
apply especially strict scrutiny to restrictions on intimate
strict or exacting scrutiny to restrictions that directly burden group’s

associational rights).
38
Adam Winkler, Free Speech Federalism, 108 MICH. L. REV. 153, 165-66
(2009) (finding government free speech restrictions survive strict scrutiny in
only 21% of cases, though federal government restrictions alone survive 56% of
time); see, e.g., Walker, 453 F.3d at 853 (finding university’s justification for
nondiscrimination policy weak compared to student group’s associational
interests in excluding homosexuals); MacGuire v. Houston, 717 P.2d 948, 948
(Colo. 1986) (requiring state to carry burden of proving statute comports with
U.S. Constitution).
39
See Chi Iota, 502 F.3d at 144 (deriding lower court’s categorical approach to
applying level of scrutiny to policy restricting free association); see also Roberts,
468 U.S. at 623-24 (determining constitutionality of infringement on
associational interests by placing association’s interest on spectrum from
attenuated to intimate and weighing it against infringer’s interest). See generally
Healy, 408 U.S. at 181 (balancing student group’s interest in association against
interest of government in infringing those associational interests).
40
See Roberts, 468 U.S. at 620 (noting spectrum of associational interests from
intimate to attenuated, deserving of different levels of constitutional protection);
Chi Iota, 502 F.3d at 144 (balancing student group’s associational interest
against university’s interest in nondiscrimination). See generally Runyon v.
McCrary, 427 U.S. 160, 187-89 (1976) (Powell, J., concurring) (applying
varying levels of scrutiny to contracts depending on each contract’s intimacy,
personalization, individualization, and purpose of exclusiveness).
41
intimate to attenuated, deserving of different levels of constitutional protection);
Chi Iota, 502 F.3d at 144 (balancing student group’s associational interest
against university’s interest in nondiscrimination). See generally Runyon, 427
U.S. at 187-89 (Powell, J., concurring) (applying varying levels of scrutiny to
contracts depending on each contract’s intimacy, personalization,
individualization, and purpose of exclusiveness).
42
intimate to attenuated, deserving of different levels of constitutional protection).
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 374 (1987) (finding marriage to be
intimate relationship requiring protections of strict scrutiny); Carey v.
Population Servs. Int’l, 431 U.S. 678, 678 (1977) (finding procreation to be
intimate relationship requiring protections of strict scrutiny); Moore v. E.
Cleveland, 431 U.S. 494, 494 (1977) (finding cohabitation with relatives to be
intimate relationship requiring protections of strict scrutiny).
6
associational interests like marriage and the right to procreate, for
example.43 More attenuated associational interests, like forming a
commercial business enterprise, deserve less protection in the strict
scrutiny analysis.44 Essentially, when courts apply “strict scrutiny”
to government restrictions on associational rights, they unfailingly
weigh the subjective value of one interest against the other.45
This right to free association exists at a public university,
which, as a state actor, is subject to First Amendment restrictions.46
A public university may not outright prevent students from
forming groups and excluding others from them; such bans are too
broad to survive strict scrutiny.47 Blatant, heavy-handed,
43
See, e.g., Zablocki, 434 U.S. at 374 (finding marriage to be intimate
relationship requiring protections of strict scrutiny); Carey, 431 U.S. at 678
(finding procreation to be intimate relationship requiring protections of strict
scrutiny); Moore, 431 U.S. at 494 (finding cohabitation with relatives to be
44
See Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of
Fraternal Order of Eagles, 59 P.3d 655, 681 (Wash. 2002) (Sanders, J.,
dissenting) (noting associations like business enterprises lay on one extreme end
of spectrum and deserve fewer First Amendment protections); see
also Roberts, 468 U.S. at 620 (holding large public associations deserve less
protections than small, more intimate associations). See generally Chi Iota, 502
F.3d 136 (finding fraternity’s associational interests less compelling because it is
affiliated with national organization).
45
See, e.g., Zablocki, 434 U.S. at 374 (finding marriage to be intimate
relationship requiring protections of strict scrutiny); Carey, 431 U.S. at 678
(finding procreation to be intimate relationship requiring protections of strict
scrutiny); Moore, 431 U.S. at 494 (finding cohabitation with relatives to be
46
See Healy v. James, 408 U.S. 169, 181 (1972) (denying official recognition to
college groups burdens constitutional associational right); Chi Iota, 502 F.3d at
144 (noting student group’s associational interest and need to balance it against
university’s interest in nondiscrimination); see also Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (holding First Amendment
protections do not end at schoolhouse gate). See generally Rosenberger v.
Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) (using “State” and
“university” interchangeably, reflecting their equivalence in First Amendment
analysis); Walker, 453 F.3d 853 (finding university’s justification for
nondiscrimination policy weak compared to student group’s associational
interests in excluding homosexuals).
47
See Chi Iota, 502 F.3d at 144 (noting student group’s associational interest
and need to balance it against university’s interest in nondiscrimination); Walker,
453 F.3d 853 (finding university’s justification for nondiscrimination policy
weak compared to student group’s associational interests in excluding
homosexuals); see also Tinker, 393 U.S. at 506 (holding First Amendment
protections do not end at schoolhouse gate). See generally Healy, 408 U.S. 169
(holding universities may not refuse to recognize student group based solely on
7
purposeless attempts to silence groups have incurred the Court’s
ire.48 A public university also may not arbitrarily refuse to
recognize a group because of the group’s exercise of its right to
expressive association.49 The Supreme Court requires some non-
infringing reason for a university to impose restrictions on a
group’s right to associate.50 Courts typically apply strict scrutiny to
government actions that impinge an expressive association.51
When a university refuses to recognize a group without sufficient
justification, it infringes on that group’s associative rights.52
group’s viewpoints, and universities are not havens immune from First
Amendment protections).
48
See generally Bd. of Dir. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.
537, 549 (1987) (allowing for possibility of slight infringement of associational
rights if necessary to achieve compelling state interest in eliminating
discrimination against women); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per
curiam) (upholding state regulations limiting right of free association when state
has compelling interest unrelated to suppression of ideas); Tinker, 393 U.S. at
506 (holding First Amendment protections do not end at schoolhouse gate);
Healy, 408 U.S. 169 (holding universities may not refuse to recognize student
group based solely on group’s viewpoints, and universities are not havens
immune from First Amendment protections).
49
See Healy, 408 U.S. 169 (holding universities may not refuse to recognize
student group based solely on group’s viewpoints). See generally Chi Iota, 502
F.3d 136 (acknowledging student group’s theoretical right to expressive
association while holding university’s interest in nondiscrimination to be more
compelling); Walker, 453 F.3d 853 (holding university may not arbitrarily refuse
to recognize group based solely on group’s viewpoints).
50
See Healy, 408 U.S. 169, 169 (holding universities may not refuse to
recognize student group based solely on group’s viewpoints). See generally
Duarte, 481 U.S. 537 (upholding restriction on expressive association only after
determining restriction was not explicitly based on viewpoint); Chi Iota, 502
F.3d 136 (acknowledging student group’s theoretical right to expressive
association while holding university’s interest in nondiscrimination to be more
compelling); Walker, 453 F.3d 853 (holding university may not arbitrarily refuse
to recognize group based solely on group’s viewpoints).
51
See Duarte, 481 U.S. at 537 (upholding restriction on expressive association
only after determining it was narrowly tailored to serve compelling state
interest); Chi Iota, 502 F.3d at 136 (applying strict scrutiny); Walker, 453 F.3d
at 853 (applying strict scrutiny).
52
See Healy, 408 U.S. at 181 (holding that denial of recognition without
justification infringes right of individuals to associate to further their beliefs,
implicit in freedom of speech, assembly, and petition). See generally Chi Iota,
502 F.3d 136 (finding university did have sufficiently compelling reason to
restrict fraternity’s associational interest). But see Healy, 408 U.S. at 192-93
(holding university has inherent authority to promulgate rules of conduct and
expect students to adhere to them) (quoting Esteban v. Cent. Mo. State Coll.,
415 F.2d 1077, 1089 (8th Cir. 1969), cert. denied, 398 U.S. 965 (1970)) (noting
8
However, the university need not subsidize all speech by granting
recognition without limitation.53
B. No Government Obligation to Subsidize Speech
The government — and, by extension, a public university — is

under no obligation to subsidize speech.54 In Rust v. Sullivan, a
government-funded hospital sought to counsel patients about their
abortion rights.55 This violated a government rule stipulating that
recipients of federal funds could not use those funds to promote
abortion.56 The hospital sued, seeking a ruling invalidating the
regulation on First Amendment grounds.57 The district court
denied the hospital’s claims, and the Second Circuit affirmed.58
The Supreme Court affirmed, holding that the government is not
obligated to subsidize speech.59 Because the hospital employees
remained free to say what they wished outside of the context of
their government-funded employment, they retained their First
Amendment rights.60
university’s inherent power to discipline, to create rules and regulations, to

protect its property, and to expect students to adhere to reasonable conduct
codes).
53
See Rust v. Sullivan, 500 U.S. 173, 200 (1991) (recognizing general rule that
state may choose not to subsidize speech); Healy, 408 U.S. at 192-93 (holding
university has inherent authority to promulgate rules of conduct and expect
students to adhere to them); Esteban, 415 F.2d at 1089 (noting university’s
inherent power to discipline, to create rules and regulations, to protect its
property, and to expect students to adhere to reasonable conduct codes).
54
See generally Rust, 500 U.S. at 200 (recognizing general rule that state may
choose not to subsidize speech); Joan W. Howarth, Teaching Freedom:
Exclusionary Rights of Student Groups, 42 UC DAVIS L. REV. 889 (2009)
(noting conflict between student groups’ exclusionary membership policies and
schools’ nondiscrimination policies); Volokh, supra note 23 (noting conflict
between student group’s right to free association and university’s interest in not
subsidizing discrimination).
55
Rust, 500 U.S. at 181-83 (summarizing petitioner’s facial challenge to Title X
restrictions on methods of counseling employed by federal grant recipients).
56
Id. at 181 (noting petitioner filed facial challenge to regulations on First
Amendment grounds).
57
Id. (noting petitioner is recipient of federal grants).
58
Id. at 181-83.
59
Id. at 192-94 (holding federal government may selectively encourage and fund
activities it decides are in public interest without funding alternative programs).
60
Id.
9
However, in pursuit of its educational mission, a university
may choose to subsidize some speech or facilitate some
associations.61 But even while choosing which speech to subsidize,
state actors like universities may not discriminate on the basis of
viewpoint.62 In Healy v. James, a public university denied official
recognition to a student group with controversial views.63 The
group sued, alleging that the university had violated its First
Amendment rights of expression and association.64 The district
court dismissed the suit, and the Second Circuit affirmed.65 The
Supreme Court reversed, holding that the university could not deny
the subsidy of official recognition to a student group solely
because of its views.66 As an instrumentality of the state, the
university could not withdraw a subsidy in an attempt to silence a
group based on viewpoint.67 The Court qualified its holding by
noting that universities do have an inherent power to promulgate
rules for student conduct.68 Healy also maintained a university’s
right to expect students to adhere to those rules of conduct.69
Denying a subsidy or recognition to an otherwise eligible
group in an attempt to suppress its views is unconstitutional
discrimination on the basis of viewpoint.70 Solely viewpoint-based
61
See generally Volokh, supra note 23 (noting conflict between student group’s
right to free association and university’s interest in not subsidizing
discrimination); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S.
819, 841 (1995) (holding university may allow students to use school funds for
purposes consistent with university’s educational mission); Chi Iota Colony of
Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136 (2d Cir. 2007)
(holding university need not extend subsidy of recognized status to organization
which discriminates on basis of sex in its membership).
62
See generally Healy v. James, 408 U.S. 169 (1972) (holding that once student
organization met technical requirements for recognition, burden shifts to
university to prove denial of recognition was not based on group’s views).
63
Id. at 170-71.
64
Id. at 177.
65
Id. at 179-80.
66
Id. at 170-71.
67
Id. at 187-88 (holding that group’s abhorrent views are not enough to justify
silencing it).
68
See id. at 192-93 (holding university may expect campus groups to adhere to
reasonable rules to receive privilege of official recognition).
69
See id. (holding university may expect campus groups to adhere to reasonable
rules to receive privilege of official recognition).
70
See Rust v. Sullivan, 500 U.S. 173, 192 (1991) (holding that government may
not invidiously discriminate in distribution of subsidies in manner aimed at
10
restrictions are subject to the strictest scrutiny, and they almost
never survive judicial review.71 However, universities may subject
campus groups to reasonable campus regulations even when they
have the incidental effect of restricting expressive associational
rights.72 For example, in Healy, the Court approved university
rules prohibiting groups from damaging school property, even if
their vandalism is meant to be expressive.73 Conversely, a
university may not prohibit vandalism solely to suppress the
vandalism’s expressive content; in other words, the purpose of the
regulation is important.74 To have even a slight chance at surviving
constitutional review, a university regulation must have some
suppressing dangerous ideas); see also Healy, 408 U.S. at 187-88 (holding that
university president, as state actor, may not de-recognize club or restrict speech
or association simply because he finds their views repugnant); Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-29 (1995) (holding that
targeting speaker’s views for suppression blatantly violates First Amendment).
71
See Rosenberger, 515 U.S. at 828-29 (holding that targeting speaker’s views
for suppression is blatant violation of First Amendment); Perry Educ. Ass'n v.
Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983) (holding that state actor
may reserve state-owned forums for specific purposes only if regulations are not
efforts to suppress views); Christian Legal Soc’y v. Kane, No. 06-15956, 2009
WL 693391, at *1 (9th Cir. Mar. 17, 2009) (citing Truth v. Kent Sch. Dist., 542
F.3d 634 (9th Cir. 2008)) (holding law school’s mandate that recognized student
group accept all-comers as voting members to be viewpoint neutral and
reasonable); see also Prince v. Jacoby, 303 F.3d 1074, 1091 (9th Cir. 2002)
(citing Rosenberger, 515 U.S. at 828) (affirming that discriminating against
speech because of specific message or viewpoint is presumptively
unconstitutional).
72
See Healy, 408 U.S. at 193-94 (holding that college may deny benefits of
participation in college life to group that reserves right to violate valid campus
rules with which it disagrees). But see Rosenberger, 515 U.S. at 828-29 (holding
that university may not impose bans on funding religious organizations if it
funds non-religious organizations); Perry, 460 U.S. at 46 (holding that state
actor may impose regulations on state-owned only if regulations are not efforts
to suppress views); Prince, 303 F.3d at 1091 (citing Rosenberger, 515 U.S. at
828) (affirming that discriminating against speech because of specific message
or viewpoint is presumptively unconstitutional).
73
See Healy, 408 U.S. at 189 (noting constitutionality of school regulations
prohibiting groups from invading others’ privacy, damaging property,
interfering with rights of others, or disrupting college operations).
74
See generally Rumsfeld v. Foundation for Academic and Institutional Rights,
547 U.S. 47 (2006) (holding Soloman Act constitutional in part because forcing
law schools to accept military recruiters is not aimed at impeding law schools’
associational rights); Rosenberger, 515 U.S. 819 (requiring compelling state
interest to justify overruling student group’s expressive associational rights);
Healy, 408 U.S. at 189 (noting constitutionality of prohibiting groups from
damaging property because preventing property damage is compelling interest).
11
purpose unrelated to the suppression of speech.75 To become an
officially recognized group, universities may properly require
campus groups to adhere to these policies.76 Many state
universities include nondiscrimination policies as part of the
regulations to which student groups must adhere.77 The state’s
interest in preventing discrimination collides with students’
associational rights when students form groups that violate campus
nondiscrimination policies.78 The state interest in
nondiscrimination provides the basis for overriding the
constitutional rights of the affected students.79
75
See Rosenberger, 515 U.S. at 828-29 (holding that university’s viewpoint-
based restrictions on funding blatantly violate First Amendment); Perry, 460
U.S. at 46 (holding that state actor may impose regulations on state-owned
property only if regulations are not efforts to suppress views); Prince, 303 F.3d
at 1091 (citing Rosenberger, 515 U.S. at 828) (affirming that discriminating
against speech because of specific message or viewpoint is presumptively
unconstitutional).
76
See Healy, 408 U.S. at 192 (holding university may properly expect groups to
adhere to campus regulations); see also Perry, 460 U.S. at 70 & n.11 (holding
university must offer evidence of potential disruption to justify regulations on
free speech); Esteban v. Cent. Mo. State Coll., 415 F.2d 1077, 1089 (8th Cir.
1969), cert. denied, 398 U.S. 965 (1970) (holding university may properly
impose discipline, promulgate rules and regulations, and expect students to
adhere to standards of conduct).
77
See Howarth, supra note 54, at 892 (noting conflict between student groups’
exclusionary membership policies and schools’ nondiscrimination policies); see
also Healy, 408 U.S. at 192 (affirming university’s ability to promulgate campus
regulations and expect students to comply with their provisions); Chi Iota
Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 142
(2d Cir. 2007) (holding university could require all-male fraternity to admit
women or face de-recognition).
78
See Howarth, supra note 54, at 892 (noting nondiscrimination policies often
impede student groups’ ability to restrict membership); see also Chi Iota, 502
F.3d at 142 (holding university could require all-male fraternity to admit women
or face de-recognition). See generally Christian Legal Soc’y v. Walker, 453 F.3d
853, 863-64 (7th Cir. 2006) (finding weak justification for policy forbidding
groups from excluding members based on sexual orientation); Volokh, supra
note 23 (noting conflict between student group’s right to free association and
university’s interest in not subsidizing discrimination).
79
See Howarth, supra note 54, at 892 (noting nondiscrimination policies often
impede student groups’ ability to restrict membership); see also Chi Iota, 502
F.3d at 142 (holding university could require all-male fraternity to admit women
or face de-recognition); Walker, 453 F.3d at 863-64 (finding weak justification
for policy forbidding groups from excluding members based on sexual
orientation).
12
C. State Interest in Nondiscrimination
To boost nondiscrimination policies over constitutional hurdles,

universities must cite a compelling state interest behind them.80
Fortunately for universities, the Supreme Court defers to university
determinations of what constitutes a compelling state interest.81 In
Grutter v. Bollinger, a public law school maintained a race-
conscious admissions policy aimed at achieving student body
diversity by increasing minority student enrollment.82 A white
student sued, alleging violation of her Equal Protection rights.83
The district court found that using race in admissions was unlawful
and enjoined its use.84 The Sixth Circuit reversed, vacating the
injunction.85 The Supreme Court upheld the Sixth Circuit, holding
student body diversity to be a compelling state interest.86 The
Court deferred to the university’s determination of its educational
mission, and its determination that fulfilling that mission required a
diverse student body.87 Finding a diverse student body to be a
compelling state interest, the Court upheld a race-based admissions
policy designed to effectuate that interest.88
80
See generally Bd. of Dir. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.
537, 544 (1987) (upholding restriction on expressive association only after
determining it was narrowly tailored to serve compelling state interest); Chi Iota,
502 F.3d 136 (applying strict scrutiny, requiring compelling state interest);
Walker, 453 F.3d 853 (applying strict scrutiny, requiring compelling state
interest).
81
See Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (noting principle of
educational autonomy and showing deference to university’s assertion that
diversity is necessary to fulfill educational mission, holding diversity to be
compelling interest); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265,
312 (1978) (holding university has compelling interest in achieving diverse
student body as part of its self-defined educational mission); Healy, 408 U.S. at
193-94 (holding that college may deny benefits of participation in college life to
group that reserves right to violate valid campus policies).
82
See generally Grutter, 539 U.S. 306 (holding achieving student body diversity
to be compelling state interest).
83
Id. at 316-17.
84
Id. at 321.
85
Id.
86
Id. at 325.
87
Id. at 328 (deferring explicitly to university’s “educational judgment”).
88
Id. at 343.
13
Certain types of government discrimination, including benign
discrimination undertaken to remedy past discrimination,
sometimes survive strict scrutiny review.89 The Court has upheld
university policies banning groups from discriminating based on
sex or religion, but protected the right of groups to discriminate on
other bases.90 Race-based admissions policies, for example, help
universities discriminate against one student in favor of another.91
Federal and state governments do not outlaw all types of
discrimination, either.92 In fact, federal law specifically exempts
fraternities and sororities from general bans on sex-based
discrimination.93 Legislative history indicates that Congress
exempted these organizations because of their tradition of
89
See Id. at 339 (holding that race-based admissions policies may survive strict
scrutiny review if narrowly tailored); Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 228-29 (1995) (noting that even “benign” racial classifications require
strict scrutiny review, but may be constitutional if they survive such scrutiny);
see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (holding
university may use race as one of many factors in admitting students).
90
See Healy v. James, 408 U.S. 169, 184 & n.11 (1972) (declining to review
validity of nondiscrimination policy based on religion, race, and nationality); Bd.
of Dir. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987)
(holding public accommodations laws banning sex-based discrimination to serve
compelling state interests of highest order); see also Chi Iota Colony of Alpha
Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 142 (2d Cir. 2007)
(holding university could require all-male fraternity to admit women or face de-
recognition).
91
See generally Grutter, 539 U.S. 306 (noting plaintiffs sued because race-based
admissions policy hurt their chances of acceptance to school); Gratz v. Bollinger,
539 U.S. 244 (2003) (noting plaintiffs sued because race-based admissions
policies prevented them from attending school); Bakke, 438 U.S. 265 (upholding
race-based admissions policy which prevented plaintiff from gaining admittance
to medical school).
92
Chi Iota, 502 F.3d at 148; see also Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681(a)(6)(A) (2009) (exempting fraternities and sororities
from Title IX prohibition on sex-based discrimination in educational institutions
receiving federal funds); Id. § 1681(a)(6)(B) (exempting volunteer organizations
which “traditionally” discriminate on basis of sex from Title IX, specifically
exempting YMCA and YWCA, Boy Scouts, and Girl Scouts). See generally
Romer v. Evans, 517 U.S. 620 (1996) (analyzing Colorado initiative statute that
removed protections against sexual orientation discrimination).
93
20 U.S.C. § 1681(a)(6)(A) (exempting fraternities and sororities from Title IX
prohibition on sex-based discrimination in educational institutions receiving
federal funds); id. § 1681(a)(6)(B) (exempting volunteer organizations which
“traditionally” discriminate on basis of sex from Title IX, specifically exempting
Young Men’s and Women’s Christian Associations, Boy Scouts, Girl Scouts);
see also Chi Iota, 502 F.3d at 148.
14
restricting membership based on sex.94 Because of this conflicting
history of courts alternately approving or nullifying state
discrimination, two circuits have split on the issue.95
II. THE CIRCUIT SPLIT
Federal circuit courts of appeals disagree over whether

universities’ nondiscrimination policies always trump student
groups’ associational rights.96 In Chi Iota Colony of Alpha Epsilon
Pi Fraternity v. City University of New York, the court addressed a
university’s interests in nondiscrimination.97 The Second Circuit
Court of Appeals found that the university’s interest was
sufficiently compelling to justify restricting a group’s associational
rights.98 In Christian Legal Society v. Walker, the Seventh Circuit
Court of Appeals adopted a contrary holding.99 There, the court
held that a university’s interest in nondiscrimination was not
compelling enough to justify restricting a group’s associational
rights.100
94
120 CONG. REC. 39992 (1974) (statement of Sen. Bayh) (quoting Senator
Birch Bayh, prime sponsor of Title IX, emphasizing that Congress did not intend
Title IX to apply to fraternities or sororities); accord 20 U.S.C. § 1681(a)(6)(A)
(exempting fraternities and sororities from Title IX prohibition on sex-based
discrimination in educational institutions receiving federal funds); id. §
1681(a)(6)(B) (exempting volunteer organizations which “traditionally”
discriminate on basis of sex from Title IX, specifically exempting Young Men’s
and Women’s Christian Associations, Boy Scouts, Girl Scouts); Chi Iota Colony
of Alpha Epsilon PI Fraternity v. City Univ. of N.Y., 443 F. Supp. 2d 374, 388
(E.D.N.Y. 2006) (referencing Senator Evan Bayh’s speech on Title IX).
95
Compare Chi Iota, 502 F.3d at 142 (holding university could require all-male
fraternity to admit women or face de-recognition) with Christian Legal Soc’y v.
Walker, 453 F.3d 853 (7th Cir. 2006) (finding weak justification for policy
forbidding groups from excluding members based on sexual orientation).
96
Compare Chi Iota, 502 F.3d at 142 (holding university could require all-male
fraternity to admit women or face de-recognition) with Walker, 453 F.3d 853
(finding weak justification for policy forbidding groups from excluding
members based on sexual orientation).
97
Chi Iota, 502 F.3d at 142.
98
Id.
99
Walker, 453 F.3d 853 (finding weak justification for policy forbidding groups
from excluding members based on sexual orientation).
100
Id.
15
A. Chi Iota: State Interest in Nondiscrimination Outweighs
Group’s Associational Rights
The Second Circuit held in Chi Iota that a university’s interest

in nondiscrimination outweighs a student group’s associational
rights.101 In 2004, men at the College of Staten Island (“CSI”), a
public college in New York, started a fraternity and named it Chi
Iota.102 They limited Chi Iota’s membership to men, per the
requirements of the fraternity’s national organization, Alpha
Epsilon Fraternity, Inc. (“AEPi”).103 Chi Iota sought official
recognition from CSI, which would bestow upon the fraternity
several important privileges, such as access to student government
funds.104 To become recognized, CSI required groups to adhere to
a nondiscrimination policy.105 The policy required groups to agree
not to discriminate on the basis of gender.106 CSI’s administration
refused to recognize the fraternity because it violated the
nondiscrimination policy by not admitting women.107
Chi Iota sued CSI in a federal district court, alleging a
constitutional violation of its expressive association rights under
the First Amendment.108 Chi Iota moved for a preliminary
injunction enjoining CSI from enforcing its nondiscrimination
policy with regard to student organizations.109 The district court
granted Chi Iota’s preliminary injunction.110 On appeal, the Second
Circuit vacated the district court’s preliminary injunction.111 The
101
Chi Iota, 502 F.3d at 136.
102
Id. at 142.
103
Id.
104
Id. at 140 (noting recognition allowed group to apply for funding, use CSI
name and facilities, buy insurance, request mailbox, arrange news coverage, and
use monthly calendar).
105
Id. at 139.
106
Id.
107
Id. at 136.
108
Id. at 142 (noting fraternity also alleged violations of Fourteenth Amendment
and federal and New York state antidiscrimination laws).
109
Id. at 136.
110
Id. at 143.
111
Id.
16
court held that a university may require its recognized student
organizations to adhere to a nondiscrimination policy.112
The Second Circuit found erroneous the lower court’s holding
that all burdens on associational rights are subject to the same,
cookie-cutter strict scrutiny analysis.113 Instead, the court’s strict
scrutiny analysis incorporated a form of balancing test, weighing
the government interest against the associational interest.114 The
fraternity’s affiliation with a national organization — AEPi —
meant that its association was not intimate enough to justify
heightened First Amendment protection.115 The court found the
state, on the other hand, to have compelling interests in both
eradicating gender discrimination and ensuring equal access to
public facilities.116
In the Second Circuit’s balancing test, the court also weighed
the restriction’s impact on the fraternity’s ability to associate.117
112
Id. at 149.
113
See id. at 144 (holding that restrictions on association fall on continuum
ranging from minimal to substantial burdens); see also Zablocki v. Redhail, 434
U.S. 374, 374 (1987) (finding marriage to be intimate relationship requiring
protections of strict scrutiny); Carey v. Population Servs. Int’l, 431 U.S. 678,
678 (1977) (finding procreation to be intimate relationship requiring protections
of strict scrutiny); Moore v. E. Cleveland, 431 U.S. 494, 494 (1977) (finding
cohabitation with relatives to be intimate relationship requiring protections of
strict scrutiny).
114
See Chi Iota, 502 F.3d at 144 (deriding lower court’s all-or-nothing approach
to determining whether associational interest deserves constitutional protection);
Christian Legal Soc’y v. Walker, 453 F.3d 853, 876 (7th Cir. 2006) (implying
university itself has associational rights — not to allow discriminatory clubs —
that Court must consider when determining which party’s interest is most
compelling); see also Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (university
has compelling interest in determining its own student body); Regents of Univ.
of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (holding university’s interest in
student body diversity to be compelling).
115
See Chi Iota, 502 F.3d at 145-47 (considering size, purpose, selectivity, and
whether fraternity excluded others from critical aspects of relationship in
determining intimacy of association); see also Bd. of Dir. of Rotary Int’l v.
Rotary Club of Duarte, 481 U.S. 537, 546 (1987); Roberts v. U.S. Jaycees, 468
U.S. 609, 620 (1984). But see Healy v. James, 408 U.S. 169, 185-86 (1972)
(holding that guilt by association alone, without establishing that association
poses threat that state fears, cannot justify denying First Amendment rights).
116
Chi Iota, 502 F.3d at 148-50 (citing Roberts, 468 U.S. at 624 (holding that
state has compelling interest in ensuring equal access to public goods and
services for all citizens)) (finding university to have compelling interest in
ensuring equal access to public resources and in eradicating gender
discrimination on campus).
117
Chi Iota, 502 F.3d at 147-48.
17
The court emphasized that the nondiscrimination policy did not
significantly interfere with Chi Iota’s existence.118 It noted that the
policy did not interfere with the fraternity’s actual ability to
exclude women.119 The fraternity could simply ignore the policy
and continue associating as it wished, only without the benefit of
university resources.120 If anything, the nondiscrimination policy
applied primarily to the non-intimate aspects of the fraternity’s
association, such as where it held meetings.121 Although Chi Iota
could not use campus facilities to recruit new members, the
existing membership remained free to meet elsewhere and continue
associating.122 If CSI’s restriction had imposed a significant burden
on the fraternity’s ability to associate, the court would have more
strictly scrutinized the restriction.123 However, because Chi Iota
could still function under the restriction, the Second Circuit applied
less exacting scrutiny when balancing all of the pertinent factors.124
This tipped the balance in the university’s favor.125 Accordingly,
the court held that the college’s interests in nondiscrimination
outweighed the attenuated associational interests of a fraternity
affiliated with a national organization.126 The Seventh Circuit
Court of Appeals, however, reached the opposite conclusion in
Walker.127
118
Id.
119
Id.
120
Id.
121
Id. (noting groups primarily use access to campus facilities for recruiting new
members, not maintaining existing intimate associations).
122
Id.
123
Id. at 147-49.
124
Id. at 149 (balancing fraternity’s relatively weak associational interests
against important state interests and finding fraternity unburdened by narrowly
tailored nondiscrimination policy).
125
Id.
126
Id.
127
See generally Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006)
(holding student group’s associational interest outweighed university’s interest
in nondiscrimination).
18
B. Walker: Group’s Associational Interests Outweigh State’s
Interest in Nondiscrimination
In Walker, the Seventh Circuit held that a university violated

the Constitution by revoking a student group’s recognized status
because of its exclusionary membership policies.128 Southern
Illinois University School of Law (“SIU”), a public law school,
officially recognized the Christian Legal Society (“CLS”) as a
student organization.129 Recognition bestowed upon CLS
significant benefits, including access to school funding.130 To
become a recognized group and maintain that status, a student
organization had to abide by school policies.131 SIU maintained a
university-wide policy that stated that it would provide equal
employment and education opportunities for qualified persons,
regardless of sexual orientation.132
However, CLS would not allow students who engaged in or
affirmed homosexual conduct to serve as group officers.133 SIU
revoked CLS’s recognition after a student filed a complaint about
CLS’s membership policies.134 CLS sued the university in a federal
district court, alleging a constitutional violation of its First
Amendment right of expressive association.135 CLS moved for a
preliminary injunction restoring its status as an official student
organization, which the district court denied.136 The Seventh
Circuit reversed, and the court granted a preliminary injunction
128
Id.
129
Id. at 857 (noting CLS could also seek recognition by the larger university,
which would bestow even greater benefits upon the group).
130
Id. at 853 (noting only recognized groups could access e-mail list-serve, post
flyers, appear on website, reserve rooms and storage spaces, get faculty advisor,
and apply for funding).
131
Id. (noting groups had to follow campus regulations to become recognized).
132
Id. at 857-58 (mentioning race, color, religion, sex, national origin, age,
disability, disabled Vietnam veteran status, sexual orientation, and marital status,
as well).
133
Id. at 853.
134
Id. at 858.
135
Id. at 853.
136
Id. at 858-61 (holding that withholding benefits from individuals because of
their membership in disfavored group impermissibly burdens freedom to
associate).
19
restoring CLS’s status as an official student organization.137 After
full argument, the circuit court upheld its earlier decision and held
that SIU had violated CLS’s right to expressive association.138
The Seventh Circuit determined that SIU’s revocation of
recognition met the court’s three-part test for finding a violation of
expressive association rights.139 First, CLS had to show that it was,
indeed, an expressive association.140 The Circuit found that it was,
because expressing disapproval of homosexuality was a core
belief.141 Second, the forced inclusion of active homosexuals in
CLS would have to significantly affect the group’s ability to
express its disapproval of homosexual activity.142 The court held
that it would, because the presence of active homosexual members
would imply the group’s approval of their homosexuality.143 Third,
CLS’s expressive association interests would have to outweigh the
university’s interests in eradicating discrimination against
homosexuals.144
After hearing argument, the court held that CLS’s interests
outweighed the university’s interests because excluding
homosexuals was central to CLS’s ability to expressively
associate.145 By infringing on CLS’s right to associate, the
university had to demonstrate a sufficiently compelling interest to
justify that infringement under strict scrutiny review.146 The
university could not demonstrate that its interest in eradicating
discrimination was compelling enough to justify its
nondiscrimination policy’s restrictions on CLS’s associative
137
Id. at 858.
138
Id. at 859.
139
Id. at 862 (viewing with skepticism university’s argument that CLS had even
violated campus policies as written).
140
Id. at 862.
141
Id. (noting CLS exists to express its religious beliefs, which include strong
disapproval of homosexual conduct).
142
Id.
143
Id.
144
See id.; see also Boy Scouts of Am. v. Dale, 530 U.S. 640, 648-59 (2000).
145
See Walker, 453 F.3d at 863-64 (finding university’s nondiscrimination
policy infringed on CLS’s right to associate, requiring university to prove
compelling interest to justify its policy, which university could not prove).
146
Id.
20
rights.147 Indeed, the court found that the university policy had no
purpose except for impermissibly inducing CLS to change the
content of its expression.148 Its policy failed the balancing test
under strict scrutiny, and the court declared it void.149 This
Comment, however, argues that the Seventh Circuit’s holding is
incorrect.150
III. ANALYSIS
The Second Circuit correctly held that a university’s interest in

eradicating discrimination outweighs a student group’s
associational interests for three reasons.151 First, under Supreme
Court precedent, the university has narrowly tailored
nondiscrimination policies to achieve the compelling state interest
in ensuring nondiscrimination.152 Second, a public university is
under no obligation to subsidize discriminatory views by officially
recognizing a student group.153 Third, universities are entitled to
deference in formulating nondiscrimination policies to effectuate
their educational mission.154
147
See id. (finding university had shown no state interest in denying recognition
to CLS).
148
Id.
149
Id.
150
Infra Part III.A; infra Part III.B; infra Part III.C. See generally Walker, 453
F.3d 853 (holding university has not shown compelling interest in infringing
student group’s associational interest); see also Grutter v. Bollinger, 539 U.S.
306, 329 (2003) (university has compelling interest in determining its own
student body); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978)
(university has compelling interest in achieving diverse student body); Healy v.
James, 408 U.S. 169, 171 (1972) (balancing students’ First Amendment interests
against interest of students, faculty, and staff in preventing interference with
educational process).
151
See Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y.,
502 F.3d 136, 144 (2d Cir. 2007); see also Grutter, 539 U.S. at 329 (university
has compelling interest in determining its own student body); Bakke, 438 U.S. at
312 (university has compelling interest in achieving diverse student body);
Healy, 408 U.S. at 171 (balancing students’ First Amendment interests against
interest of students, faculty, and staff in preventing interference with educational
process); infra Part III.A; infra Part III.B; infra Part III.C.
152
See infra Part III.A; see also Grutter, 539 U.S. at 329 (holding university has
compelling interest in determining its own student body); Bakke, 438 U.S. at
312 (holding university has compelling interest in achieving diverse student
body).
153
See infra Part III.B.
154
See infra Part III.C.
21
A. Ensuring Nondiscrimination Through Campus Regulations
Satisfies Strict Scrutiny Analysis
University nondiscrimination policies, which universities

narrowly tailor to serve the compelling state interest of eradicating
discrimination, satisfy strict scrutiny analysis.155 A state policy that
infringes a constitutional right can survive strict scrutiny if the
state narrowly tailors it to achieve a compelling state interest.156 To
satisfy strict scrutiny, the university must first prove that its
interest in nondiscrimination is compelling.157 In Grutter, the Court
held that a university has a compelling interest in carrying out its
educational mission.158 Courts defer to the university’s
155
See Grutter, 539 U.S. at 329 (noting principle of educational autonomy and
showing deference to university’s assertion that diversity is necessary to fulfill
educational mission, holding diversity to be compelling interest); Roberts v. U.S.
Jaycees, 468 U.S. 609, 623-24 (1984) (determining constitutionality of
infringement on associational interests by using strict scrutiny test of whether
state’s policy is least restrictive means of achieving compelling interest); see
also Bakke, 438 U.S. at 312 (holding university has compelling interest in
achieving diverse student body as part of its self-defined educational mission);
Healy, 408 U.S. at 193-94 (holding that college may deny benefits of
participation in college life to group that reserves right to violate valid campus
policies).
156
educational mission, holding diversity to be compelling interest); Roberts, 468
U.S. at 623-24 (determining constitutionality of infringement on associational
interests by using strict scrutiny test of whether state’s policy is least restrictive
means of achieving compelling interest); see also Bakke, 438 U.S. at 312
(holding university has compelling interest in achieving diverse student body as
part of its self-defined educational mission); Healy, 408 U.S. at 193-94 (holding
that college may deny benefits of participation in college life to group that
reserves right to violate valid campus policies).
157
educational mission, holding diversity to be compelling interest); Roberts, 468
U.S. at 623-24 (determining constitutionality of infringement on associational
interests by using strict scrutiny test of whether state’s policy is least restrictive
means of achieving compelling interest); see also Bakke, 438 U.S. at 312
(holding university has compelling interest in achieving diverse student body as
part of its self-defined educational mission); Healy, 408 U.S. at 193-94 (holding
that college may deny benefits of participation in college life to group that
reserves right to violate valid campus policies).
158
educational mission, holding diversity to be compelling interest); see also Bakke,
22
determination of what that educational mission includes.159
Therefore, when a university’s educational mission includes the
eradication of discrimination, it establishes a compelling interest in
enacting narrowly tailored policies to effectuate that mission.160
To satisfy strict scrutiny, the university must then prove that it
narrowly tailored its infringing policy to serve its compelling
interest.161 A constitutionally questionable policy can stand if it
furthers a university’s mission, and if the university, in good faith,
considers and rejects more palatable alternatives.162 When a policy
438 U.S. at 312 (holding university has compelling interest in achieving diverse
student body as part of its self-defined educational mission); Healy, 408 U.S. at
193-94 (holding that college may deny benefits of participation in college life to
group that reserves right to violate valid campus policies); Christian Legal Soc’y
v. Walker, 453 F.3d 853, 875 (7th Cir. 2006) (Wood, J., dissenting) (finding
state to have compelling duty to provide equal treatment to all citizens).
159
See Grutter, 539 U.S. at 329 (deferring to university’s presumed good faith
belief in what is necessary to fulfill educational mission and finding that
compelling interest); Bakke, 438 U.S. at 312 (university has compelling interest
in achieving diverse student body as part of its self-defined educational mission).
See generally Healy, 408 U.S. at 193-94 (holding that college may deny benefits
of participation in college life to group that reserves right to violate valid
campus policies).
160
See generally Grutter, 539 U.S. 306 (university has compelling interest in
promoting diversity of student body); Bakke, 438 U.S. at 312 (university has
compelling interest in achieving diverse student body as part of its self-defined
educational mission); Healy, 408 U.S. at 193-94 (holding that college may deny
benefits of participation in college life to group that reserves right to violate
valid campus policies).
161
See generally Grutter, 539 U.S. 306 (holding university must show narrowly
tailored policy designed to promote diversity of student body to justify
infringing on constitutional rights); Bakke, 438 U.S. at 312 (holding university
must show narrowly tailored method of achieving diverse student body as part
of its self-defined educational mission); Healy, 408 U.S. 169 (holding that
college policies infringing on constitutional rights must be narrowly tailored to
achieve compelling state interest).
162
Grutter, 539 U.S. at 339 (holding that defining race-based admissions
policies as narrowly tailored requires good-faith consideration of possible race-
neutral alternatives that accomplish compelling interest of student body
diversity); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507
(1989) (holding that race-based policy is not narrowly tailored when state actor
failed to consider race-neutral means of achieving same objective); Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 280 & n.6 (1986) (holding policy is
narrowly tailored only if lawful and less restrictive means for achieving
compelling interest are unavailable); Chi Iota Colony of Alpha Epsilon Pi
Fraternity v. City Univ. of N.Y., 502 F.3d 136, 149 (2d Cir. 2007) (holding
nondiscrimination policy to be narrowly tailored to achieve compelling state
interest, noting that student group does not dispute that it is narrowly tailored).
23
meets these criteria, the Court deems it “narrowly tailored.”163 In
Grutter, the Supreme Court recognized race-based university
admissions policies as narrowly tailored to achieve the university’s
educational mission of achieving a diverse student body.164 This
policy is broader than nondiscrimination policies because race-
based admissions policies affect students who do not even attend
the university.165 A nondiscrimination policy applied to student
groups is narrower because it affects only students already enrolled
in the university.166 Therefore, if the Supreme Court finds race-
based admissions policies narrowly tailored to achieve diversity, it
should also find nondiscrimination policies narrowly tailored to
eradicate discrimination.167 A policy requiring recognized groups
163
Grutter, 539 U.S. at 339 (holding that defining race-based admissions
diversity); see also City of Richmond, 488 U.S. at 507 (holding that race-based
policy is not narrowly tailored when state actor failed to consider race-neutral
means of achieving same objective); Wygant, 476 U.S. at 280 n.6 (holding
policy is narrowly tailored only if lawful and less restrictive means for achieving
compelling interest are unavailable); Chi Iota, 502 F.3d at 149 (holding
nondiscrimination policy to be narrowly tailored to achieve compelling state
interest, noting that student group does not dispute that it is narrowly tailored).
164
See Grutter, 539 U.S. at 334 (holding race-based admissions policies
narrowly tailored to achieve compelling interest of student body diversity);
Gratz v. Bollinger, 539 U.S. 244, 268-69 (2003) (holding certain race-based
admissions policies to be narrowly tailored to achieve compelling interest of
student body diversity and eradicating discrimination); see also Bakke, 438 U.S.
at 312 (holding university may use race as one of many factors in admitting
students).
165
See generally Grutter, 539 U.S. at 334 (considering race-based admissions
policies’ effect on admissions prospects of law school applicant); Gratz, 539
U.S. at 268-69 (holding certain race-based admissions policies to be narrowly
tailored to achieve compelling interest of student body diversity and eradicating
discrimination); Bakke, 438 U.S. at 312 (holding university may use race as one
of many factors in admitting students).
166
See Christian Legal Soc’y v. Walker, 453 F.3d 853, 858 (7th Cir. 2006)
(noting that university’s nondiscrimination policy applied to student groups
composed of enrolled students); see also Grutter, 539 U.S. at 334 (holding race-
based admissions policies narrowly tailored to achieve compelling interest of
student body diversity); Gratz, 539 U.S. at 268-69 (holding certain race-based
admissions policies to be narrowly tailored to achieve compelling interest of
student body diversity and eradicating discrimination); Bakke, 438 U.S. at 312
(holding university may use race as one of many factors in admitting students).
167
See Chi Iota, 502 F.3d at 149 (holding nondiscrimination policy to be
narrowly tailored to achieve compelling state interest, noting that student group
does not dispute that it is narrowly tailored); see also Grutter, 539 U.S. at 334
(holding race-based admissions policies narrowly tailored to achieve compelling
24
not to discriminate is narrowly tailored to achieve the university’s
compelling state interest in eradicating discrimination.168
However, those who agree with CLS may argue that
universities do not have a compelling interest in eradicating every
type of discrimination.169 Some types of discrimination are
necessary, or at least present the government with a compelling
interest in perpetuating them.170 Race-based admissions policies,
for example, help universities discriminate against one student in
favor of another.171 Federal and state governments do not outlaw
all types of discrimination, either.172 In fact, federal law
interest of student body diversity); Gratz, 539 U.S. at 268-69 (holding certain
race-based admissions policies to be narrowly tailored to achieve compelling
interest of student body diversity and eradicating discrimination); Bakke, 438
U.S. at 312 (holding university may use race as one of many factors in admitting
students).
168
See generally Grutter, 539 U.S. at 334 (holding race-based admissions
policies narrowly tailored to achieve compelling interest of student body
diversity); Gratz, 539 U.S. at 268-69 (holding certain race-based admissions
policies to be narrowly tailored to achieve compelling interest of student body
diversity and eradicating discrimination); Chi Iota, 502 F.3d 136 (holding that
university’s compelling interest in eradicating discrimination allows university
to withhold official recognition from clubs that violate university’s
nondiscrimination policy).
169
See Chi Iota Colony of Alpha Epsilon PI Fraternity v. City Univ. of N.Y.,
443 F. Supp. 2d 374, 388 (E.D.N.Y. 2006) (holding eradicating gender
discrimination not to be compelling interest because no federal statute bans such
discrimination, unlike other types of discrimination which statutes ban).
170
See generally Grutter, 539 U.S. 306 (noting plaintiffs sued because race-
based admissions policy hurt their chances of acceptance to school); Gratz, 539
U.S. 244 (noting plaintiffs sued because race-based admissions policies
prevented them from attending school); Bakke, 438 U.S. 265 (upholding race-
based admissions policy which prevented plaintiff from gaining admittance to
medical school).
171
See generally Grutter, 539 U.S. 306 (noting plaintiffs sued because race-
based admissions policy hurt their chances of acceptance to school); Gratz, 539
U.S. 244 (noting plaintiffs sued because race-based admissions policies
prevented them from attending school); Bakke, 438 U.S. 265 (upholding race-
based admissions policy which prevented plaintiff from gaining admittance to
medical school).
172
Chi Iota, 502 F.3d at 148. See generally Romer v. Evans, 517 U.S. 620 (1996)
(analyzing Colorado initiative statute that removed protections against sexual
orientation discrimination); Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681(a)(6)(A) (2009) (exempting fraternities and sororities from Title
IX prohibition on sex-based discrimination in educational institutions receiving
YMCA and YWCA, Boy Scouts, and Girl Scouts).
25
specifically exempts fraternities and sororities from general bans
on sex-based discrimination.173 That the federal government
exempts fraternities from nondiscrimination laws suggests that
their associations are entitled to more protection than other
discriminatory associations.174 Legislative history indicates that
Congress exempted these organizations because of their tradition
of restricting membership based on sex.175 One could argue that
the impetus behind this exemption applies to Chi Iota and CLS as
well.176 Fraternities like Chi Iota are composed of men, and CLS is
173
20 U.S.C. § 1681(a)(6)(A) (exempting fraternities and sororities from Title
IX prohibition on sex-based discrimination in educational institutions receiving
YMCA and YWCA, Boy Scouts, and Girl Scouts); see also Chi Iota, 502 F.3d
at 148.
174
See Chi Iota, 443 F. Supp. 2d at 388 (using federal government’s exemption
of fraternities from sex discrimination statute to find fraternities’ associational
interests outweigh state’s nondiscrimination interests), vacated, Chi Iota, 502
F.3d 136. Cf. Roberts v. U.S. Jaycees, 468 U.S. 609, 610, 623 (1984) (holding
that state has compelling interest in eradicating discrimination against women,
which justifies nondiscrimination statute); Bd. of Dir. of Rotary Int’l v. Rotary
Club of Duarte, 481 U.S. 537, 549 (1987) (holding public accommodations laws
banning gender discrimination to serve compelling state interests of highest
order); Chi Iota, 443 F. Supp. 2d 374 (vacated on other grounds) (citing Duarte,
481 U.S. at 549, and Roberts, 468 U.S. at 624) (holding eradicating gender
discrimination to be compelling interest based both on statutes like Title VII and
on Supreme Court precedent).
175
120 CONG. REC. 39992 (1974) (statement of Sen. Bayh) (quoting Senator
Birch Bayh, prime sponsor of Title IX, emphasizing that Congress did not intend
Title IX to apply to fraternities or sororities); accord 20 U.S.C. § 1681(a)(6)(A)
(exempting fraternities and sororities from Title IX prohibition on sex-based
discrimination in educational institutions receiving federal funds); id. §
1681(a)(6)(B) (exempting volunteer organizations which “traditionally”
discriminate on basis of sex from Title IX, specifically exempting YMCA and
YWCA, Boy Scouts, and Girl Scouts); see also Chi Iota, 443 F. Supp. 2d at 388
(referencing Senator Evan Bayh’s speech on Title IX).
176
Chi Iota, 502 F.3d at 148. See generally § 1681(a)(6)(B) (specifically
exempting Young Men’s Christian Association and Young Women’s Christian
Association from federal antidiscrimination statute). But see Roberts, 468 U.S.
at 610, 623 (holding that state has compelling interest in eradicating
discrimination against women, which justifies nondiscrimination statute);
Duarte, 481 U.S. at 549 (holding public accommodations laws banning gender
discrimination to serve compelling state interests of highest order); Chi Iota, 443
F. Supp. 2d at 374 (holding eradicating gender discrimination to be compelling
interest based both on statutes like Title VII and on Supreme Court precedent).
26
composed of Christians.177 Courts should not require either group
to admit persons not in those respective categories, because the
government has no compelling interest to do so.178
However, this argument fails because the lack of statutes
banning sex-based discrimination does not mean that universities
have no compelling interest in battling discrimination.179 While
recognizing a group’s right to exclude in other areas, the Court
upheld university policies requiring groups not to discriminate
based on religion or sex.180 Fighting discrimination against a group
is a compelling interest, though it is not mandatory for a state to
fight that discrimination.181 No federal or state law is required to
establish a compelling interest.182 In other words, although a
compelling interest is necessary to support certain statutes, a
177
See generally Chi Iota, 502 F.3d 136 (noting fraternities composed of men);
Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006) (noting Christian
Legal Society composed of Christians).
178
See Chi Iota, 443 F. Supp. 2d at 388 (using federal government’s exemption
of fraternities from sex discrimination statute to find fraternities’ associational
interests outweigh state’s nondiscrimination interests), vacated, Chi Iota, 502
F.3d 136. See generally Duarte, 481 U.S. at 549 (holding public
accommodations laws banning gender discrimination to serve compelling state
interests of highest order); Roberts, 468 U.S. at 610, 623 (holding that state has
compelling interest in eradicating discrimination against women, which justifies
nondiscrimination statute); Chi Iota, 443 F. Supp. 2d 374 (holding eradicating
gender discrimination to be compelling interest based both on statutes like Title
VII and on Supreme Court precedent).
179
See Chi Iota, 502 F.3d at 148-49; see also Roberts, 468 U.S. at 623.
180
See Healy v. James, 408 U.S. 169, 184 n.11 (1972) (declining to review
validity of nondiscrimination policy based on religion, race, and nationality);
Duarte, 481 U.S. at 549 (holding public accommodations laws banning sex-
based discrimination to serve compelling state interests of highest order).
181
Roberts, 468 U.S. at 623. See Grutter v. Bollinger, 539 U.S. 306, 327-33
(2003) (deferring to university’s determination of its compelling interest in
attracting diverse student body, even though no federal law requires race-based
admissions policies); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312
(1978) (agreeing with university’s argument that it has compelling interest in
achieving diverse student body and allowing, but not mandating, narrowly
tailored race-based admissions policies).
182
See Chi Iota, 502 F.3d 148-49; see also Duarte, 481 U.S. at 549 (holding
public accommodations laws banning gender discrimination to serve compelling
state interests of highest order); Roberts, 468 U.S. at 610, 623 (holding that state
has compelling interest in eradicating discrimination against women, which
justifies nondiscrimination statute); Chi Iota, 443 F. Supp. 2d at 388 (holding
eradicating gender discrimination to be compelling interest based both on
statutes like Title VII and on Supreme Court precedent).
27
statute is not necessary to create a compelling interest.183 If a
statute’s mere existence could create a compelling interest for its
aims, every law would become self-justifying, which violates the
principle of judicial review.184 Instead, the Court has determined
what interests are compelling.185 It has repeatedly held that
eradicating discrimination, including gender discrimination, is a
compelling interest.186 This compelling interest affects the court’s
determination of which interest outweighs the other during its
balancing test.187 Because eradicating certain forms of
183
See Chi Iota, 502 F.3d 148-49; see also Duarte, 481 U.S. at 549 (holding
public accommodations laws banning gender discrimination to serve compelling
state interests of highest order); Roberts, 468 U.S. at 610, 623 (holding that state
has compelling interest in eradicating discrimination against women, which
justifies nondiscrimination statute); Chi Iota, 443 F. Supp. 2d at 388 (holding
eradicating gender discrimination to be compelling interest based both on
statutes like Title VII and on Supreme Court precedent).
184
See generally Duarte, 481 U.S. at 549 (holding public accommodations laws
order); Roberts, 468 U.S. at 610, 623 (holding that state interest in eradicating
discrimination justifies nondiscrimination statute); Jews for Jesus v. Jewish
Comm. Rel. Council, 968 F.2d 286, 295 (2d Cir. 1992) (holding that state has
authority and compelling interest in banning racial and religious discrimination
in public accommodations).
185
See generally Duarte, 481 U.S. at 549 (holding public accommodations laws
order); Roberts, 468 U.S. at 610, 623 (holding that state has compelling interest
in eradicating discrimination against women, which justifies nondiscrimination
statute); Jews for Jesus, 968 F.2d at 295 (holding that state has authority and
compelling interest in banning racial and religious discrimination in public
accommodations).
186
Duarte, 481 U.S. at 549 (holding public accommodations laws banning
gender discrimination to serve compelling state interests of highest order);
Roberts, 468 U.S. at 610, 623 (holding that state has compelling interest in
eradicating discrimination against women, which justifies nondiscrimination
statute); Jews for Jesus, 968 F.2d at 295 (holding that state has authority and
compelling interest in banning racial and religious discrimination in public
accommodations); Presbytery of N.J. of the Orthodox Presbyterian Church v.
Florio, 902 F. Supp. 492, 521 (D.N.J. 1995) (holding that state has compelling
interest in eradicating discrimination based on sexual orientation); Gay Rights
Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 38 (D.C.
Cir. 1987) (holding that eradicating sexual orientation discrimination is a
compelling state interest); see also Chi Iota, 502 F.3d at 148-49.
187
See Chi Iota, 502 F.3d at 143-44 (balancing state interest against student
group’s associational interest to determine whether state interest passes flexible
version of strict scrutiny test). See generally Healy v. James, 408 U.S. 169, 181
(1972) (balancing student group’s interest in association against government
interest in infringing those associational interests); Pi Lambda Phi Fraternity v.
28
discrimination is always a compelling interest, a heavy weight rests
on the university’s side of the scale.188 Another weight on the
university’s side is the lack of any obligation to subsidize
discrimination.189
B. The Public’s Right Not to Subsidize Discrimination Makes
Group’s Associational Interests Less Compelling
The university’s lack of an obligation to fund a student group’s

associational interests makes that group’s associational interests
less compelling.190 Facilities at a public university are publicly
funded.191 Taxpayers provide support — student government funds,
Univ. of Pittsburgh, 229 F.3d 435, 445-46 (3d Cir. 2000) (applying strict
scrutiny to restrictions that directly burden group’s associational rights).
188
See generally Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (holding race-
based admissions policies narrowly tailored to achieve compelling interest of
student body diversity); Gratz v. Bollinger, 539 U.S. 244, 268-69 (2003)
(holding certain race-based admissions policies to be narrowly tailored to
achieve compelling interest of student body diversity and eradicating
discrimination); Duarte, 481 U.S. at 549 (holding public accommodations laws
order); Roberts, 468 U.S. at 610, 623 (holding that state has compelling interest
in eradicating discrimination against women); Chi Iota, 502 F.3d 136 (holding
that university’s compelling interest in eradicating discrimination allows
university to withhold official recognition from clubs that violate university’s
nondiscrimination policy). But see Christian Legal Soc’y v. Walker, 453 F.3d
853, 863-64 (7th Cir. 2006) (finding university’s interest in eradicating
associational interests).
189
See generally Rust v. Sullivan, 500 U.S. 173, 193 (1991) (holding that
legislature declining to subsidize exercise of fundamental right does not infringe
that right); Chi Iota, 502 F.3d at 143-44 (balancing state interest against student
group’s associational interest to determine whether state interest passes flexible
version of strict scrutiny test); Walker, 453 F.3d 853 (balancing restrictions on
right to expressive association against state interest in nondiscrimination); Evans
v. City of Berkeley, 129 P.3d 394, 400 (Cal. Ct. App. 2006) (holding that city
need not subsidize otherwise eligible private group if group failed to follow
city’s nondiscrimination policy).
190
See Evans, 129 P.3d at 400 (holding that city need not subsidize otherwise
eligible private group if group failed to follow city’s nondiscrimination policy
(citing Rust, 500 U.S. at 193 (holding that legislature declining to subsidize
exercise of fundamental right does not infringe that right))). See generally Chi
Iota, 502 F.3d at 143-44 (balancing state interest against student group’s
associational interest to determine whether state interest passes flexible version
of strict scrutiny test); Walker, 453 F.3d 853 (balancing restrictions on right to
expressive association against state interest in nondiscrimination).
191
See Chi Iota, 502 F.3d at 148 (holding university is under no obligation to
subsidize fraternity’s activities by allowing access to campus facilities); Walker,
29
classrooms, the campus itself — for those groups who use the
facilities.192 When a university recognizes a group, it provides it
access to the university’s resources.193 Providing university
resources without charging for them is subsidization.194 Therefore,
a university’s recognition of a student group is an effective grant of
state subsidies.195
Under Rust, public entities are under no obligation to subsidize
discrimination, regardless of whether the actor has a constitutional
right to engage in that discrimination.196 Conditioning receipt of
453 F.3d at 858 (noting unrecognized student groups could hold meetings in law
school classrooms, but could not reserve classroom space for private meetings).
See generally Healy, 408 U.S. at 180-81 (subjecting public university’s actions
to scrutiny under First Amendment because state-funded university is state actor
for purposes of First Amendment analysis).
192
See Chi Iota, 502 F.3d at 148 (holding university is under no obligation to
subsidize fraternity’s activities by allowing access to campus facilities); Walker,
453 F.3d at 858 (noting unrecognized student groups could hold meetings in law
school classrooms, but could not reserve classroom space for private meetings).
See generally Healy, 408 U.S. 169 (noting university’s refusal to recognize
student group interfered with its use of campus facilities).
193
See generally Healy, 408 U.S. 169 (noting that group could use campus
facilities if university were to recognize it); Chi Iota, 502 F.3d at 148 (holding
university is under no obligation to subsidize fraternity’s activities by allowing
access to campus facilities); Walker, 453 F.3d at 858 (noting unrecognized
student groups could hold meetings in law school classrooms, but could not
reserve classroom space for private meetings).
194
See Regan v. Taxation with Representation of Wash., 461 U.S. 540, 546
(1983) (rejecting idea that First Amendment rights are not realized unless
subsidized by State); Chi Iota, 502 F.3d at 148 (holding university is under no
obligation to subsidize fraternity’s activities by allowing access to campus
facilities); Volokh, supra note 23, at 1960-61 (noting that denying access to
campus facilities removes subsidy and imposes substantial burden on student
groups’ associational freedoms). See generally Rust, 500 U.S. at 201 (holding
that state has no affirmative constitutional duty to subsidize constitutionally
protected activities).
195
Chi Iota, 502 F.3d at 148 (holding university is under no obligation to
subsidize fraternity’s activities by allowing access to campus facilities). Cf.
Healy, 408 U.S. at 181-82 (holding denying group access to traditional campus
facilities infringes on associational interests). See generally Evans, 129 P.3d at
400 (holding that city could revoke funding from otherwise eligible private
group if group failed to follow city’s nondiscrimination policy) (citing Rust, 500
U.S. at 193 (holding that legislature declining to subsidize exercise of
fundamental right does not infringe that right)); Regan, 461 U.S. at 546 (holding
State subsidization of speech is not necessary to fully realize First Amendment
rights).
196
See Evans, 129 P.3d at 400 (citing Rust, 500 U.S. at 193) (holding that city
could revoke funding from otherwise eligible private group if group failed to
30
public resources upon stipulations, including restrictions against
using funds for constitutional but disfavored speech or conduct,
does not violate the First Amendment.197 When a university
determines that groups should not use public resources in a
discriminatory way, the university is not obligated to subsidize
discrimination.198
However, those who agree with CLS may argue that official
recognition on a college campus is vital to a student group’s
existence.199 A group on a college campus exists to promote its
views, gather members, and associate on that campus.200 It needs
university resources — at the very least, on-campus meeting space
follow city’s nondiscrimination policy); see also Regan, 461 U.S. at 546
(holding state subsidization of speech is not necessary to fully realize First
Amendment rights).
197
See Rust, 500 U.S. at 192-93 (holding as compatible with First Amendment
Congressional mandate that hospitals not use federal money to promote
abortion); see also Volokh, supra note 23, at 1927 (arguing that if taxpayers,
through elected representatives, do not want to subsidize another’s constitutional
right, that should suffice to justify state’s refusal to subsidize). See generally
Regan, 461 U.S. at 546 (holding state subsidization of speech is not necessary to
fully realize First Amendment rights).
198
See Rust, 500 U.S. at 193 (holding as compatible with First Amendment
Congressional mandate that hospitals not use federal money to promote
abortion); Volokh, supra note 23, at 1927 (arguing that if taxpayers, through
elected representatives, do not want to subsidize another’s constitutional right,
that should suffice to justify state’s refusal to subsidize). See generally Regan,
461 U.S. at 546 (holding state subsidization of speech unnecessary to fully
realize First Amendment rights).
199
See Chi Iota, 502 F.3d at 142 (noting fraternity’s assertion that holding
events off-campus negatively impacted recruitment and participation levels of
existing membership); Christian Legal Soc’y v. Walker, 453 F.3d 853, 858 (7th
Cir. 2006) (noting unrecognized student groups could hold meetings in law
school classrooms, but could not reserve classroom space for private meetings);
UC Davis Center for Student Involvement, What is the CSI?,
http://spac.ucdavis.edu/common/whatis.cfm (last visited Jan. 27, 2010)
(advertising benefits associated with officially registering student groups at
university).
200
See Chi Iota, 502 F.3d at 142; Online search for student organizations at UC
Davis Center for Student Involvement,
http://spac.ucdavis.edu/studentorgs/AJAXsearch.cfm (Jan. 22, 2010) (listing
political student groups whose mission statement includes targeting “the entire
campus,” operating “on campus” or “at UC Davis”); African American Studies
Association at UC San Diego, Mission Statement,
http://wailua.ucsd.edu/studentorg/StudentOrgDetail.aspx?frmID=1587 (last
visited Jan. 20, 2010) (stating group’s mission is to educate community “at
UCSD” and “in San Diego” about African American culture).
31
— to exist as a college group.201 Forcing a group to hold its
meetings off campus because the university denies it recognition
effectively silences the group, because it can no longer function.202
Under Healy, silencing a group because of its views is an
impermissible violation of its First Amendment associative
rights.203 When a university derecognizes a group, it sometimes
also silences that group, and the refusal to recognize becomes akin
to an unconstitutional silencing.204
However, this argument fails because in the Internet age,
access to physical college facilities is no longer vital to a group’s
associational rights.205 College students have access to Facebook,
201
Chi Iota, 502 F.3d at 142 (noting that unrecognized fraternity needed to seek
another group’s sponsorship to hold events on campus); Angela Chen, A.S.
Council Seeks Fiscal Independence, UCSD GUARDIAN, Jan. 11, 2010,
http://www.ucsdguardian.org/news/a.s.-council-seeks-fiscal-independence/
(reporting student government cannot function without university funds); Rachel
Gross, CALPIRG Struggles to Make Pledge Quotas, DAILY CALIFORNIAN, Aug.
25, 2009,
http://www.dailycal.org/article/106343/calpirg_struggles_to_make_pledge_quot
as (reporting university nearly decimated student group’s activities when
university forced it to raise funds on its own).
202
See Healy v. James, 408 U.S. 169, 181-82 (1972) (holding that denying
group access to traditional campus facilities infringes on associational interests);
Chi Iota, 502 F.3d at 142 (noting fraternity’s inability to distribute flyers on
campus). See generally Inside Higher Ed, Issue of Space Not Speech, Jan. 20,
2010, http://www.insidehighered.com/news/2010/01/20/oregon (reporting that
university justified expelling white supremacist group from campus, where it
could no longer function, because of space constraints, not viewpoint).
203
Healy, 408 U.S. at 181-82 (holding that denying group access to traditional
campus facilities infringes on associational interests); see also Chi Iota, 502
F.3d at 142 (noting fraternity’s inability to distribute flyers on campus). But see
Rust, 500 U.S. at 193 (holding that legislature declining to subsidize exercise of
fundamental right does not infringe that right).
204
See generally Healy, 408 U.S. 169 (equating university’s refusal to recognize
with unconstitutional silencing of viewpoint); Howarth, supra note 54
(examining conflict between student groups’ exclusionary membership policies
and schools’ nondiscrimination policies); Volokh, supra note 23 (noting perils
to student groups’ associational interests when university revokes official
recognition and accompanying subsidies).
205
See SD Board Club, Facebook group,
http://www.facebook.com/group.php?gid=2203010638 (last visited Jan. 26,
2010) (claiming to have defected from university sponsorship and established
independent ski and snowboard club, expanding membership throughout San
Diego); Cecilia M. Vega, Horrifying Details in Hazing Death, S.F. CHRON.,
May 4, 2005, http://articles.sfgate.com/2005-03-
04/news/17363467_1_fraternity-house-chi-tau-matthew-carrington (reporting
university expelled unofficial fraternity from campus in 2002 for violating
32
MySpace, Twitter, and other methods of disseminating
messages.206 Groups use campus facilities for holding physical, in-
person meetings.207 They can still hold these meetings on campus,
even without the ability to reserve classroom space.208 Non-
recognized groups could meet informally, sitting on the lawn or at
the same table in the cafeteria.209 Residual, informal access to
campus facilities coupled with the dissemination power of the
Internet provides unrecognized groups sufficient opportunity to
exercise their associational rights.210
university policy nevertheless remained active and pledged new members

through at least 2005). But see Healy, 408 U.S. at 181-82 (holding denying
group access to traditional campus facilities infringes on associational interests).
206
See, e.g., Breeanna Hare, Does Your Social Class Determine Your Online
Social Network?, CNN, Oct. 13, 2009,
http://www.cnn.com/2009/TECH/science/10/13/social.networking.class/
(reporting that college students populate online social networking sites); Monica
Hesse, Worldwide Ebb for Facebook, Oct. 19, 2009, WASH. POST,
http://www.washingtonpost.com/wp-
dyn/content/article/2009/10/18/AR2009101802327.html (noting 300 million
users of Facebook alone); San Jose Business Journal, Social Media Use Soars,
Led by Facebook and Twitter, SAN JOSE BUS. J., Jan. 22, 2010,
http://sanjose.bizjournals.com/sanjose/stories/2010/01/18/daily98.html (noting
18.7 million Twitter users).
207
Chi Iota, 502 F.3d at 142 (noting fraternity could still hold events off campus,
but no meetings on campus). See also Walker, 453 F.3d at 858 (noting
unrecognized student groups could hold meetings in law school classrooms, but
could not reserve classroom space for private meetings). But see Healy, 408 U.S.
at 181-82 (holding denying group access to traditional campus facilities
infringes on associational interests).
208
Christian Legal Soc’y v. Walker, 453 F.3d 853, 858 (7th Cir. 2006) (noting
unrecognized student groups could hold meetings in law school classrooms, but
could not reserve classroom space for private meetings); see also Chi Iota, 502
F.3d at 148 (finding student group’s associational interests unburdened because
it could still exist and hold meetings off campus). But see Healy, 408 U.S. at
181-82 (holding denying group access to traditional campus facilities infringes
on associational interests).
209
See Chi Iota, 502 F.3d at 148 (finding student group’s associational interests
unburdened because it could still exist and hold meetings off campus). But see
Healy, 408 U.S. at 181-84 (holding university had infringed upon student
group’s associational rights by denying benefits associated with official
recognition, even though group could still meet off-campus); Walker, 453 F.3d
at 864 (holding that group’s ability to meet off campus does not ameliorate
difficulties university imposed by withdrawing recognition, such as ability to
meet privately in classrooms).
210
Chi Iota, 502 F.3d at 147-48 (finding lack of official recognition does not
burden fraternity’s associational rights because opportunities for meeting and
recruitment still existed off campus); Walker, 453 F.3d at 859 (noting district
33
If a group maintains its membership policies, functions
normally on campus, and continues to exist as an expressive
association, its associational rights survive.211 But to exist, a
college group does need at least minimal access to university
resources.212 Its members must be able to assemble on campus,
even if informally, such as in a student’s dormitory or on a park
bench.213 Merely denying them official recognition does not
violate their core associational rights, because all students still
have this informal access to the campus.214 Unrecognized groups
can still express their views, so the university has not violated their
judge’s determination that CLS would have to find alternative means of

communicating with potential members). See, e.g., Hare, supra note 206
(reporting that college students populate online social networking sites); Hesse,
supra note 206 (noting 300 million users of Facebook alone); San Jose Business
Journal, supra note 206 (noting 18.7 million Twitter users).
211
meet privately in classrooms). But see Chi Iota, 502 F.3d at 142 (noting that
unrecognized student group could still hold events on campus when another
recognized student group sponsored events).
212
meet privately in classrooms). But see Chi Iota, 502 F.3d at 142 (noting that
unrecognized student group could still hold events on campus when another
recognized student group sponsored events).
213
See Volokh, supra note 23, at 1935-36 (noting university cannot exclude
student groups from campus after opening its campus to groups through
recognition process); see also Chi Iota, 502 F.3d at 142 (noting that
unrecognized student group could still hold events on campus when events were
sponsored by another recognized student group); Walker, 453 F.3d at 859
(noting district judge’s determination that CLS would have to find alternative
means of communicating with potential members).
214
See Chi Iota, 502 F.3d at 142 (noting that unrecognized student group could
still hold events on campus when events were sponsored by another recognized
student group); Walker, 453 F.3d at 859 (noting district judge’s determination
that CLS would have to find alternative means of communicating with potential
members). But see Healy, 408 U.S. at 192-93 (holding university may expect
campus groups to adhere to reasonable rules to receive privilege of official
recognition).
34
rights.215 In fact, the university itself has rights that courts must
consider, including the right to determine its own educational
mission.216
C. University’s Right to Determine Educational Opportunities
Makes Its Interest in Nondiscrimination More Compelling.
In balancing a student group’s associational interest against a

university’s nondiscrimination interest, the Supreme Court
recognizes the university’s general right to determine educational
opportunities.217 This right includes the ability to refuse to
recognize groups that violate campus policies.218 Courts
historically show deference to universities’ determinations of what
is necessary to carry out their educational mission.219 Under Healy,
215
See Chi Iota, 502 F.3d at 147-48 (finding lack of official recognition does not
burden fraternity’s associational because opportunities for meeting and
recruitment still existed off campus); see also Healy, 408 U.S. at 192-93
(holding university may expect campus groups to adhere to reasonable rules
which have incidental effects on their speech). But see Walker, 453 F.3d at 861-
62 (finding university unconstitutionally infringed upon student group’s
associational interests, even though group may still meet informally).
216
See Walker, 453 F.3d at 872-75 (Wood, J., dissenting) (noting university’s
recognition of student groups is integral to university’s attempts to enhance
students’ educational opportunities (citing Bd. of Regents of Univ. of Wis. Sys.
v. Southworth, 529 U.S. 217, 222-23 (2000))); see also Grutter v. Bollinger, 539
U.S. 306, 328-29 (2003) (noting court’s deference to educational mission as
university determines it); Roberts v. U.S. Jaycees, 468 U.S. 609, 625-26 (1984)
(holding state has broad authority to create rights of equal access to
opportunities for citizens).
217
See Walker, 453 F.3d at 872-75 (Wood, J., dissenting) (noting university’s
recognition of student groups is integral to university’s attempts to enhance
students’ educational opportunities (citing Bd. of Regents of Univ. of Wis. Sys.
v. Southworth, 529 U.S. 217, 222-23 (2000))); see also Grutter, 539 U.S. at
328-29 (noting court’s deference to educational mission as university determines
it); Roberts, 468 U.S. at 625-26 (holding state has broad authority to create
rights of equal access to opportunities for citizens).
218
See Healy, 408 U.S. at 193-94 (holding college may deny benefits of
participation in campus life to any group that reserves right to refuse to follow
school rules). See generally Grutter, 539 U.S. at 329 (deferring to university’s
determination of what is necessary to achieve educational mission, attracting
diverse student body); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312
(1978) (agreeing with university’s assertion that it has compelling interest in
achieving diverse student body).
219
See Healy, 408 U.S. at 171 (approaching instant case with special caution in
light of academia’s interest in preventing interference with educational process);
see also Grutter, 539 U.S. at 329 (deferring to university’s determination of its
compelling interest in attracting diverse student body); Bakke, 438 U.S. at 312
35
universities have an inherent power to promulgate rules for student
conduct and to expect students to adhere to those rules.220
Expecting groups to adhere to campus regulations in exchange for
official recognition does not violate their associational rights.221
The university’s mission cannot serve as pretext for denying
recognition to a student group on the basis of conduct that the First
Amendment protects, however.222 But if the mission is legitimate
and not used as pretext to deny recognition, the university may
impose reasonable restrictions on groups.223 When the university,
in good faith, determines that nondiscrimination policies are the
necessary means to effectuate its interest, the court is left with little
choice.224 To comply with Healy, it must show deference to the
(agreeing with university’s argument that it has compelling interest in achieving

diverse student body).
220
See Healy, 408 U.S. at 192-93 (holding university may expect campus groups
to adhere to reasonable rules to receive privilege of official recognition); see
also Chi Iota, 502 F.3d 136 (finding university’s compelling interest in
eradicating discrimination justifies infringing upon student group’s associational
interests). But see Walker, 453 F.3d 853 (finding university’s interest in
eradicating discrimination not compelling enough to justify infringing upon
student group’s associational interests).
221
See Healy, 408 U.S. at 192-93 (noting that university withholding official
recognition does not infringe student group’s freedom to speak, to assemble, or
to petition for changes in school rules). See generally Grutter, 539 U.S. at 328-
29 (noting court’s deference to educational mission as university determines it);
Roberts, 468 U.S. at 625-26 (holding state has broad authority to create rights of
equal access to opportunities for citizens).
222
See generally Healy, 408 U.S. 169 (holding university cannot rely on
effectuating its mission as pretext for silencing student groups). But see
Grutter, 539 U.S. at 328-29 (noting court’s deference to educational mission as
university determines it); Roberts, 468 U.S. at 625-26 (holding state has broad
authority to create rights of equal access to opportunities for citizens).
223
See Healy, 408 U.S. at 193-94 (allowing university to withhold recognition
from group that reserves right to violate school rules with which it disagrees);
Chi Iota, 502 F.3d 136 (finding university’s compelling interest in eradicating
discrimination justifies infringing upon student group’s associational interests).
But see Walker, 453 F.3d 853 (finding university’s interest in eradicating
associational interests).
224
See Grutter, 539 U.S. at 339 (holding that defining race-based admissions
diversity); see also Wygant v. Jackson Bd. of Educ. 476 U.S. 267, 280 & n.6
(1986) (holding policy is narrowly tailored only if lawful and less restrictive
means for achieving compelling interest are unavailable); City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 507 (1989) (holding that race-based policy is not
narrowly tailored when state actor failed to consider race-neutral means of
36
university’s nondiscrimination policy, as long as the university
applies it reasonably. 225
IV. CONCLUSION
The state’s interest in ensuring nondiscrimination always

outweighs a student group’s associational interests.226 First, the
government has a compelling interest in eradicating
discrimination.227 This compelling interest exists regardless of state
or federal statutes prohibiting discrimination of the kind the
university aims to eradicate.228 Second, a public college officially
recognizing a student group is effectively subsidizing it, and
universities are under no obligation to subsidize discriminatory
views.229 Third, universities are entitled to deference in
formulating policies to effectuate their educational mission, which
often includes eradicating discrimination.230 This third point is
especially noteworthy, because the deference strengthens the
achieving same objective); Chi Iota, 502 F.3d at 149 (holding nondiscrimination
policy to be narrowly tailored to achieve compelling state interest, noting that
student group does not dispute that it is narrowly tailored).
225
See Healy, 408 U.S. at 192-93 (holding university may expect campus groups
to adhere to reasonable rules to receive privilege of official recognition).
226
See supra Part III.A.
227
See Grutter, 539 U.S. at 329 (university has compelling interest in
determining its own student body); Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 312 (1978) (university has compelling interest in achieving diverse student
body); see also Roberts, 468 U.S. at 610, 623 (holding that state has compelling
interest in eradicating discrimination against women).
228
See Grutter, 539 U.S. at 327-33 (deferring to university’s determination of its
compelling interest in attracting diverse student body, even though no federal
law requires race-based admissions policies); Bakke, 438 U.S. at 312 (agreeing
with university’s argument that it has compelling interest in achieving diverse
student body and allowing, but not mandating, narrowly tailored race-based
admissions policies); Chi Iota, 502 F.3d 148-49; see also Bd. of Dir. of Rotary
Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (holding public
accommodations laws banning gender discrimination to serve compelling state
interests of highest order); Roberts, 468 U.S. at 610, 623 (holding that state has
compelling interest in eradicating discrimination against women). See generally
Chi Iota Colony of Alpha Epsilon PI Fraternity v. City Univ. of N.Y., 443 F.
Supp. 2d 374 (E.D.N.Y. 2006) (vacated on other grounds) (holding eradicating
gender discrimination to be compelling interest based both on statutes like Title
VII and on Supreme Court precedent).
229
See supra Part III.B.
230
See supra Part III.C.
37
impact of the first two points.231 The courts show deference to a
university’s determination that its educational mission involves
eradicating discrimination.232
The Supreme Court should resolve this circuit split by
clarifying that a public college may require recognized student
groups to comply with reasonable antidiscrimination policies.233 In
situations similar to the hypothetical in this Comment’s
introduction, the Court should allow a university to withhold
recognition from groups that discriminate.234 This would comport
with Supreme Court precedent, maintaining a state’s interest in
running a public university while balancing it with students’ rights
to free association.235
231
See supra Parts I-III.
232
See Christian Legal Soc’y v. Walker, 453 F.3d 853, 872-75 (7th Cir. 2006)
(Wood, J., dissenting) (noting university’s recognition of student groups is
integral to university’s attempts to enhance students’ educational opportunities
(citing Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 222-
23 (2000))); see also Grutter, 539 U.S. at 328-29 (noting court’s deference to
educational mission as university determines it); Bakke, 438 U.S. at 312
(agreeing with university’s argument that it has compelling interest in achieving
diverse student body); Roberts, 468 U.S. at 625-26 (holding state has broad
authority to create rights of equal access to opportunities for citizens).
233
Compare Walker, 453 F.3d 853 (7th Cir. 2006) (upholding student group’s
associational interest against university’s interest in nondiscrimination), with
Chi Iota, 502 F.3d 136 (finding university’s nondiscrimination interest more
compelling than student group’s associational interest). See, e.g., Baird v. State
Bar of Az., 401 U.S. 1, 6-7 (1971) (holding state must carry heavy burden to
prove state interest compelling enough to justify infringing on First Amendment
rights); NAACP v. Button, 371 U.S. 415, 430 (1963) (holding First and
Fourteenth Amendments protect orderly group activities); La. ex rel. Gremillion
v. NAACP, 366 U.S. 293, 296 (1961) (holding state may not infringe on
freedom of association except by narrowly tailored means); NAACP v. Ala. ex
rel. Patterson, 357 U.S. 449, 460 (1958) (holding group association enhances
advocacy of public and private views, especially controversial views). See
generally Healy v. James, 408 U.S. 169, 181 (1972) (holding First Amendment
protects individuals’ right to associate to further their personal beliefs).
234
See supra Introduction.
235
See United States v. O’Brien, 391 U.S. 367, 377 (1968)
(holding nondiscrimination policy constitutional when furthers important or
substantial interest unrelated to suppression of expression and incidental
restriction on speech no greater than is essential); see also Regents of Univ. of
Cal. v. Bakke, 438 U.S. 265, 312 (1978) (holding university has compelling
interest in achieving diverse student body as part of its self-defined educational
mission). See generally Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (noting
principle of educational autonomy and showing deference to university’s
assertion that diversity is necessary to fulfill educational mission, holding
diversity to be compelling interest).
38

Subsidizing Discrimination: Resolving CLS v. Martinez

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Subsidizing Discrimination: Resolving CLS v. Martinez

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Law Review — Comment Submission — Cover Page

Title of Comment: Subsidizing Discrimination Through

SUBSIDIZING DISCRIMINATION THROUGH RECOGNITION:

Donald Nguyen enrolls at UC Berkeley.1 Seeking new friends,

The Supreme Court recognizes a right to associate within the

875 (Wood, J. dissenting) (finding state to have compelling duty to provide

U.S. at 181 (holding First Amendment protects individuals’ right to associate to

The First Amendment protects the right to associate freely.33

strict or exacting scrutiny to restrictions that directly burden group’s

The government — and, by extension, a public university — is

university’s inherent power to discipline, to create rules and regulations, to

To boost nondiscrimination policies over constitutional hurdles,

Federal circuit courts of appeals disagree over whether

The Second Circuit held in Chi Iota that a university’s interest

In Walker, the Seventh Circuit held that a university violated

The Second Circuit correctly held that a university’s interest in

University nondiscrimination policies, which universities

The university’s lack of an obligation to fund a student group’s

university policy nevertheless remained active and pledged new members

judge’s determination that CLS would have to find alternative means of

In balancing a student group’s associational interest against a

(agreeing with university’s argument that it has compelling interest in achieving

The state’s interest in ensuring nondiscrimination always

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