Personnel Is Policy: Schools, StudentGroups, and the Right to Discriminate

Table of ContentsI. Introduction 1794II. Expressive Association 1797A. General Background 1797B. Compelled Association 1798C. Student Groups at a Public University: Healy v. James ...... 1803III. Public Forum Doctrine 1805A. The Three Classifications 1805B. Universities and the Limited Public Forum 1807IV. The Seventh Circuit vs. The Ninth Circuit 1809A. Christian Legal Society v. Walker 1809B. Truth v. Kent School District 1814V. Analysis 1818A. The Message and the Messenger 18201. Personnel Is Policy: In Theory 18202. Personnel Is Policy: In Practice 18213. Putting the Pieces Together 1823B. Problem with the Limited Public Forum Standard 1825C . Forced Inclusion or Conditioned Benefits? 1828VI. Conclusion 1830I. IntroductionYou work at a small, nonprofit organization dedicated to protecting civil and constitutional rights. One morning, your secretary introduces you to two young adults, Charles and Maddie, who need some legal advice. Only a few years out of high school, they are both part-time students at Diablo Hills Community College (DHCC), trying to earn enough credits to transfer out. Last year, after reading a number of books by Christopher Hitchens1 and watching the film Jesus Camp,2 Maddie and Charles grew concerned over the dangers posed by religious fundamentalism. Therefore, they decided to form a student group on campus, the Huxley Club. The mission of the club is to provide a place for students to celebrate the progress of human reason and to expose the intellectually bankrupt claims of primitive religious belief systems. The club would hold bi-weekly meetings that were open to all, students and nonstudents alike. DHCC encourages all student groups to apply for official recognition from the Student Governing Board (SGB). Benefits of recognition include access to classrooms for meetings, permission to advertise on campus bulletin boards and the school List-Serv, a faculty advisor, space on the college website, and money from the student activities fund. Prospective student clubs are required to submit a proposed constitution to the SGB.After careful thought and discussion, Charles and Maddie meet witii some friends and draft a constitution for the Huxley Club. It outlines the goals of the club, creates several leadership positions within the club, and lists the only requirement for membership - enrollment at DHCC. The only additional requirement for officers is that they cannot be active members of any religious community that professes a belief in a supreme deity. Charles and Maddie feel very strongly that this requirement is vital to help ensure that the goals of the club are carried out faithfully. They submit the proposed constitution to the SGB, expecting a quick approval.Two weeks later they receive a notice from the SGB requesting that they re-draft the Huxley constitution to align with the requirements of Article 5 of the college's Equal Educational Opportunity Policy (EEOP), which states that the school must provide equal educational opportunities to all students without regard to race, color, sexual identity, age, disability, marital status, or religion. …