CONGRESS SUPPORTS FREEDOM OF ASSOCIATION

Robert E. Manley, Manley & Burke

Both houses of Congress have voted to amend the Hi Education Act of 1965 to protect freedom of expression and freedom of association for students on all campuses that receive financial support from the United States Government. The margin of passage was overwhelming. In the House of Representatives on May 6th it was passed 414 to 4 and in the Senate on July 9th it was passed 96 to 1.

State supported universities have long been required to recognize the freedom of students to form associations without interference from the college administration. State universities are obligated to follow the First Amendment of the United States Constitution which guarantees freedom of association and freedom of expression. Some private universities have been claiming to be exempt from an obligation to protect freedom of expression or freedom of association among their students because they are not government agencies and therefore not governed by the First Amendment of the United States Constitution.

[“The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’ and we break no new constitutional ground in reaffirming this nation’s dedication to safeguarding academic freedoms.”]

The new statute states in part, “It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under an education program, activity, or division of the institution directly or indirectly receiving financial assistance under the Higher Education Act of 1965 … “¹

The statute preserves the right of the institution to protect against any disruption of the academic exercises and to prevent violations of local liquor laws.

On the floor of the House of Representatives, Mr. Robert Livingston of Louisiana spoke in support of the proposal. Among the things he said are: “a number of colleges throughout this country are vigorously attacking their students’ constitutionally protected right of free speech and association. The controversy centers on a decision by some private schools to ban all single-sex organizations like fraternities and sororities and restrict any student involvement with them, even if it is off campus and on their own time. Punishments for such offenses range from possible suspension to expulsion.”

Congressman Livingston noted that “private colleges argue that they are not subject to the same constitutional statutory restrictions as public institutions … ” He then noted “many of the private colleges are today not truly private” and enumerated the various sources for federal and state funding and tax advantages of private educational institutions.

In stating the purpose of the bill, he said “it will put Congress on record defending the rights of students who face expulsion and other severe consequences by daring to enjoy their most basic constitutional freedoms of speech and association, often off campus and on their own time.” Congressman Livingston concluded his remarks: “students attending private colleges have the right to enjoy the same freedoms of association and speech that all of us hold everywhere else as American citizens. We owe it to them and to all of those who sacrifice so much for those freedoms to adopt my amendment.”

The proposal was opposed by the American Council on Education which circulated a letter to members of Congress signed by Boston attorney, Philip Burling. He stated: “the real purpose of the Bill is to convert independent institutions of higher education into state actors for the purpose of requiring them to permit fraternities to exist on their campuses.”

Mr. Burling argues that a federal law that requires recognition of fraternities imposes a “continual violation of the institution’s right to conduct its educational affairs in the manner it sees fit and a forced association with organizations which may be directly antithetical to the educational objectives of the institution. In this regard it is worth noting that the drafters’ desire to disguise their real object in the cloak of First Amendment constitutionality has meant that there is no language in the Bill which could be used to supply the evidence of a ‘compelling state interest’ which must be provided in order to justify a state-imposed diminution of the institutional right not to be made to associate.”

On behalf of a focused advocacy group known as Restore Our Associational Rights, Inc. (R.O.A.R.) David K. Eastlick, Jr., who is both an attorney and Executive Director of Delta Kappa Epsilon Fraternity wrote to the members of Congress in support of the proposed statute. He relied upon Healy v. James, 408 U.S. 169 (1972) which stated: “[T]he precedents of this court leave no room for the view that because of the acknowledged needs for order First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools… ‘ The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’ and we break no new constitutional ground in reaffirming this nation’s dedication to safeguarding academic freedoms.”

This statute deals with a longstanding tension  between the freedom of a private institution to promote its institutional goals at the expense of the institutional goals of fraternities. A question that may ultimately be litigated is whether or not Congress’ action to put its prestige and legal weight behind the fraternities impinges upon the First Amendment rights of the colleges. If this new law is dealt with in a moderate way, that litigation may never arise. On the other hand, if it is dealt with in a strident way, that litigation may be upon us rapidly.

[It is well established that the United States government can impose conditions upon the grantees of federal money that Congress could never impose through its power to regulate commerce.]

It is well established that the United States government can impose conditions upon the grantees of federal money that Congress could never impose through its power to regulate commerce. See, Massachusetts v. Mellon, 262 U.S. 447; 43 S.Ct. 597, 67 L.Ed.1078 (1923). If the United States government grants money to a college or university, it can require that the college or university jump through hoops. Even though the grantee does not like the hoops, the grantee has the choice to either jump through the hoops required by Congress or forego the federal funds. In the past, most colleges and universities have willingly jumped through hoops that they did not like in order to obtain federal funds.

The goal of all participants in campus Greek relations should be to approach this new law with moderation and conciliatory attitudes and find a way to live with it rather than to use it as a new formula for more conflict.

¹ H.R. 980 and Senate Bill S1882