Even the Unpopular Have Associational Rights

Tim Burke, Manley Burke, tburke@manleyburke.com

In the late 1960s, campuses across the country were tense places.  The free speech movement had grown from the steps of Sproul Hall at Berkeley into protests against the war in Southeast Asia on virtually every campus across the country.  Some had seen violence and buildings burned.  One of many activist groups on campuses was the Students for a Democratic Society (SDS).  Many college officials viewed that as a dangerous radical group likely to cause problems on their campus.

But when Central Connecticut State College, a state supported school, denied recognition to the local chapter of SDS, the case ended up before the United States Supreme Court.  There are lessons in this case for both fraternities, their chapters and the institutions of higher education who act as their hosts.  Here is some of the language from the Supreme Court’s decision which overturned the Court of Appeals decision which had upheld denial of the SDS recognition:

“At the outset, we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment. ‘It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate.’¹ … And, where state-operated educational institutions are involved, this Court has long recognized ‘the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.’²  Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.  Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’³

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“Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs.  While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly and petition.⁴

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“[t]he Constitution’s protection is not limited to direct interference with fundamental rights.  The requirement in Patterson that the NAACP disclose its membership lists was found to be an impermissible, though indirect, infringement of the members’ associational rights.  Likewise, in this case, the group’s possible ability to exist outside the campus community does not ameliorate significantly the disabilities imposed by the President’s actions.  We are not free to disregard the practical realties.  Mr. Justice Stewart has made the salient point:  ‘Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.’⁵

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“It is to be remembered that the effect of a college’s denial of recognition was a form of prior restraint, denying a petitioner’s organization the range of associational activities described above.  While a college has a legitimate interest in preventing disruption on the campus, which under the circumstances requiring the safeguarding of that interest may justify such restraint, a ‘heavy burden’ rests on the college to demonstrate the appropriateness of the action.

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“[t]he Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen’s association with an unpopular organization.

“The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.  As Mr. Justice Black put it most simply and clearly: ‘I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly, guaranteed by the First Amendment, must be accorded to the ideas we hate, or sooner or later they will be denied to the ideas we cherish.’⁶

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“Just as in the community as large, reasonable regulations with respect to the time, the place and the manner in which student groups conduct their speech-related activities, must be respected.  A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm its willingness to adhere to reasonable campus law.  Such a requirement does not impose an impermissible condition on the student’s association rights.  Their freedom to speak out, to assemble or to petition for changes in school rules is in no sense infringed, it merely constitutes an agreement to conform with reasonable standards respecting conduct.  This is a minimal requirement, in the interest of the entire academic community, of any group seeking privilege of official recognition.”⁷

Now, apply the Supreme Court’s language to state universities which prohibit students from joining a fraternity or sorority for any significant period of time, or apply it to schools which, acting out of what may be an important concern for the safety of their students, react in a way that prohibits regular meetings of organizations, involvement in philanthropic or community activities, or even intermural sports, and extends those prohibitions to groups that had nothing to do with the misconduct, criminal violation or university rule-breaking that caused damage, injury or death.

There is no question that the wrongdoers should be identified and punished, but how far can universities go in expanding such penalties to those who did no wrong and still comport with the protections that the United States Supreme Court has clearly recognized exist within the First Amendment and extend to the association rights of students.

1 Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969).

2 Id. At 507.

3 Shelton v. Tucker, 364 U.S. 479, 487 (1960).

4 The court cites to Baird v. State of Arizona, 401 U.S. 1, 6 (1971); NAACP v. Button, 371 U.S. 415, 430 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296 (1961); and NAACP v. Alabama ex rel. Patterson, 557 U.S. 449 (1958).

5 Bates v. City of Little Rock, 361 U.S. 516, 523 (1960).

6 Communist Party v. SACB, 367 U.S. 1, 137 (Dissenting Opinion) (1961).

7 The seven quotes above all come from the United States Supreme Court decision Healy v. James, 408 U.S. 169 (1972).