As tensions run high about extremist student groups such as GUPS (General Union of Palestine Students), SJP (Students for Justice in Palestine), MEChA (Moviemiento Estudiantil Chicano/a de Aztlan), the Muslim Students Association, and others, I thought I'd blog a bit more about what protects the rights of these groups to exist and about the rights of students who are offended by these groups not to support them. This will be a two-part blog series. Today, I'll talk about freedom of association. In part two of the series, I'll talk about what I call "freedom of dissociation," or the rights of students not to pay fees that go to support student groups whose views they abhor.

As I've argued in previous blogs, public universities cannot get involved in the business of political or moral adjudication. Student groups get to define their own political and moral parameters, just as long as they follow school rules and obey the law. File your paperwork on time and behave, and you can found Students for a Pierced Counterhegemonic Society, or the Wiccan Women's Socialist Society, or Six-Fingered Students for Free Silver, or anything else you can think of. On the whole, this makes for a colorful, vibrant campus life, just as it makes for a colorful, vibrant national culture. That's the point. Like-minded individuals are free to form associations around common interests and beliefs. It's called freedom of association.

Freedom of association is not explicitly guaranteed by the Constitution. But a number of related rights are guaranteed, and together they add up inevitably to create this additional right. Specifically, the First Amendment guarantees the right to peaceably assemble and to petition the government; the Fourteenth Amendment guarantees due process. Taken together, the courts have historically interpreted these combined rights to guarantee freedom of association. You can find an excellent brief on what freedom of association is, how it works, and the case law surrounding it, at the First Amendment Cyber-Tribune (FACT). FACT also has an excellent page on the history, philosophy, and law behind the right to peaceable assembly.

The right of association is a major reason that politically extreme student groups at public schools cannot be disciplined or derecognized for their views alone (it's also the reason why private schools can have speech codes when public ones cannot, by the way). It's worth noting that the logic governing freedom of association was developed in large part during the civil rights upheavals of the 1950s and 60s--to defend Communist Party members from persecution (you cannot be guilty by association), and to protect the NAACP from the prying eyes of government agencies eager to get their punitive hands on the NAACP's membership lists. FACT has a fine run down of relevant court rulings, replete with quotes from the judges involved.

So here is how this works at public colleges and universities: public schools are bound by federal law and so cannot discriminate on the basis of viewpoint. But at the same time, private groups within those universities can form their own rules of association. Which in turn means that they can behave in ways that are openly partisan, biased, even racist or homophobic or sexist, without necessarily being guilty of discrimination.

A number of cases bear this out, most notably the recent ruling in Boy Scouts of America v. Dale 120 S.Ct. 2446 (2000). Remember this one? James Dale sued the Scouts for discrimination when they barred him from becoming a troop leader, citing his homosexuality as the reason for excluding him. The Supreme Court ruled that since the Scouts is a private organization, the Scouts' rights of free speech and free association trumped New Jersey's anti-discrimination law. The Court upheld the Scouts' right to limit membership to those of like belief. (For the record, an exactly analogous case occurred recently at Tufts University: a campus Christian group was derecognized for not allowing a lesbian member to seek a leadership position. Tufts claimed the group was discriminating against her. Civil liberties lawyers and watchdog groups disagreed, charging that the group had a right to ensure that its leaders shared its most fundamental beliefs--in this case, that homosexuality is inconsistent with Scripture. They were right, and the group was reinstated.)

The same principle applies to student groups at public colleges and universities. In 2001, Penn State refused to recognize the campus chapter of Young Americans for Freedom, charging that the group discriminated on the basis of religion. YAF's constitution--framed in 1960--refers to human rights as "God-given." As such, a board composed of students and faculty claimed, YAF was guilty of religious discrimination. The group was told that it would not be recognized unless it struck the phrase from its constitution. What happened? Penn State got its ass kicked (not, as I note in my June 25 blog, for the last time). FIRE got involved, and wrote President Spanier a letter reminding him of Penn State's obligations to the Bill of Rights, and noting that in barring YAF, Penn State had itself been guilty of discrimination on the basis of religion. The result? YAF got recognized, and Penn State publicly reaffirmed its commitment to the U.S. Constitution.

So there you have it. Freedom of association protects any and all student organizations, just as long as those organizations follow school rules and don't break the law. But the students who pay the fees that support these groups have rights, too. Just as students have the right to associate, so do others have the right to refuse to support associations that offend them. Seeking to have offensive groups derecognized or defunded is not the answer. Insisting on one's own right not to pay fees that go to support such groups is.

I'll explain how this works in part two of this series. In the meantime, check out the interesting posts by Glenn Frazier about whether GUPS' fundraising for the Holy Land Foundation is, or could be considered to be, complicit with terrorism.