A Sociospatial Analysis of Student Groups on University Campuses: Toward Capacious Campus Pluralism Rooted in Meaningful Association

A SOCIOSPATIAL ANALYSIS OF STUDENT GROUPS ON UNIVERSITY CAMPUSES: TOWARD CAPACIOUS CAMPUS PLURALISM ROOTED IN MEANINGFUL ASSOCIATION

John-Paul Petrash

A dissertation submitted to the faculty at the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Political Science.

Chapel Hill 2019

Approved by:

Susan Bickford

Luke Bretherton

John D. Inazu

Michael Lienesch

Jeff Spinner-Halev

ABSTRACT

JOHN-PAUL PETRASH: A Sociospatial Analysis of Student Groups on University Campuses: Toward Capacious Campus Pluralism Rooted in Meaningful Association (Under the direction of Jeff Spinner-Halev)

This dissertation explores the relationship between voluntary associations and the concrete social spaces that often make their activities possible and effective. I stress that all voluntary associations have a necessary spatial component and that many rely upon material space in order to exercise meaningful association. After narrowing the scope to voluntary associations seeking to gather and act within social spaces beyond their private property, I show how spatial regulations governing these spaces can impede meaningful association in serious ways. Some spatial regulations, such as free speech zones, enervate expressive activities like assembly and protest through geographic confinement. Other spatial regulations, such as conditional access policies, pressure associations to relinquish control over their internal affairs in exchange for access to a particular place. Moreover, spatial regulations are sometimes used tactically to single out and suppress disfavored groups. After demonstrating why material space matters for meaningful association, the bulk of the dissertation focuses on student groups at university campuses in the United States. This focus is warranted because campuses are complex and often contentious places that have received insufficient attention from political theorists. I delineate two facets of meaningful association for student groups: (1) freedom to maintain their integrity by ensuring coherence between their purposes, values, and membership/leadership; and

(2) access to appropriate campus spaces for their associational activities. I then express concerns

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about how universities disrupt meaningful association and dampen campus diversity through their practices of sociospatial campus governance. As a remedy, I suggest that universities should commit to capacious campus pluralism so that a diversity of student groups can exist and thrive on campus. Such a commitment should restrict, rather than rationalize, institutional interference with the internal affairs of student groups. I also prescribe neighborliness as a place- based means of navigating tensions between student groups and making campuses more livable places.

To Priscilla, with deep love and appreciation

ACKNOWLEDGEMENTS

Many people have offered guidance, support, and encouragement during my sojourn in graduate school. First, I would like to thank the members of my dissertation committee. Jeff

Spinner-Halev has been a patient and responsive advisor. I appreciate his willingness to read and comment on numerous chapter drafts. Michael Lienesch offered careful, thorough, line-by-line comments at multiple stages of the dissertation process and took the time to meet with me on several occasions. Susan Bickford provided insightful feedback during the prospectus and dissertation stages. Luke Bretherton showed uncommon kindness in sitting down with me to talk through ideas during the embryonic stage of this dissertation. His teaching and scholarship also resurrected my interest in political theory during a pivotal period in graduate school. John Inazu offered helpful comments during the prospectus stage. His work on the freedom of assembly stirred my initial interest in the subject. I am also grateful to Tabatha Abu El-Haj and Ashutosh

Bhagwat for their valuable advice.

I would like to express my gratitude to many dear friends. Kerry and Elaine Robichaux have cared for me faithfully since I was a boy, as have Ginger Hage and her late husband, Ted.

Doug and Rhonda Gedeon have supplied ongoing encouragement and prayer, as have Ted and

Jean Cuthbertson, Bobby and Dawn Barton, Carlos Urbina, Mark and Barbara Gaski, Paul and

Lynette Bachand, Reggie and Marijo Favors, Albert and Susanna Lim, Tom and Bonnie Dvorak,

Tim and Rebecca Hutchison, Mitchell and Elizabeth Kennard, Donny and Ruthie Wise, Martin and Meghan Fuller, Joel and Terri Erickson, Spencer and Jessica Tang, and Mary Finch. Their

excellent care has meant a great deal and has buoyed me over the past six years. Alexi

Robichaux has been a close and supportive friend since our early years in Irving. He somehow managed to stay in touch despite the intense pressure associated with running a blossoming startup. Robert Phillips, Isaiah Ramirez, Carlos Gutierrez, Steven Apell, Justin Lim, Johnmark

Coy, Daniel Hage, Andreas Robichaux, Peter Tsai, Austin Hu, John Han, Emika Aroh, and Noah

Simmons have been faithful friends who have ministered to me many times in many ways. Serge

Severenchuk and Devin Christensen have been excellent conversation partners and supportive colleagues. Clyde Ray went out of his way to mentor me during my early years in graduate school. I would also like to thank Amy Moulthrop, Pearl Young, Kyle Bingham, Hunter Corb,

Bob and Barbara Chermeley, Nathan Chermeley, John and Miki Liu, Peter and Christine Wang,

Jacob and Sharon Young, Steven Hsu, Tony Espinosa, Joel Oladele, Paul Onica, and John and

Arla Campbell. Their support has been much appreciated.

Many people offered insightful comments as I was drafting my dissertation. Mitchell

Kennard read numerous drafts, gave valuable suggestions, and helped me through the travails of revision. Noah Simmons showed an active interest in my dissertation, read plenty of drafts, and spent many caffeinated hours talking through ideas with me. He also cheered me on during the final and most difficult stretch of graduate school. I would also like to thank Devin Christensen,

Daniel Hage, Tim Hutchison, Kyle Bingham, my brother-in-law Colin, my sister Hope, my brother, Lukas, my mother and father, Kay and Jack, and my wife, Priscilla, for taking the time to read and comment on my work.

I have been blessed with wonderful parents and siblings, and I would not be writing these words without their love, affirmation, and help. Mom, thank you for loving me, listening to me, and fighting for me. Thank you for your faith and your ceaseless, prevailing prayer. Thank you

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for taking so many trips to North Carolina and caring for John-Elliott, Luke, and Noah (and

Priscilla and myself) in innumerable ways. Dad, thank you for your faith and prayer, your loving and encouraging words, and all your help. Hope, thank you for your empathy, love, and support even in the midst of your own suffering and loss. Thank you for spending countless hours listening to me lament my deficiencies as an academic writer and for being one of my biggest fans. Lukas, thank you for being such an amazing big brother and close friend. Thank you for all your visits and, of course, your gracious care for your nephews. (John-Elliott should be ready to be your business partner in a few years.) Gracie, thank you for your love and support. I am looking forward to spending more time with sweet little Maya.

I have also been blessed with outstanding in-laws and extended family members. I would like to thank James and Pat Fite for their gracious support, as well as Phillip and Lisa Fite, Colin

McCarthy, and Carlos Gonzalez. I would also like to thank the Fite and Caudill families for their prayer and encouragement. I owe a special debt of gratitude to Geoff and Laurie Crissman, who have opened their hearts to us during these six years and cared for us in such a warm, tender, and touching way. They refreshed me many times with their hospitality, generosity, and love for

John-Elliott, Luke, and Noah. I will always treasure our times together.

My wife and I also owe a special debt of gratitude to Allison and Meghan Thompson, who have provided wonderful care for our boys and have become such an important part of our family. I know I could not have written my dissertation without their sustained and gracious help.

My greatest thanks must go to my wife, Priscilla, for her incredible love, support, empathy, patience, grace, and sacrifice. Priscilla, I am simply in awe at what you have done and continue to do. Thank you for being my loving companion, as well as my biggest supporter and

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closest friend. Thank you for going through all the trials and tribulations of graduate school with me without once doubting the path ordained for us. You sustained and supplied me countless times with your simple faith and cheerful countenance. Thank you for spending so much time listening to me talk about my dissertation and bearing with all my lamentations and self-doubts.

And, thank you for encouraging me to “just get my words out.” I think they finally came out.

Last but certainly not least, I would like to thank “the God who has shepherded me all my life to this day” for His unfailing, unfathomable, and all-sufficient care (Genesis 48:15). My trust is in Him not only as the living God but also as the God of resurrection.

TABLE OF CONTENTS

1. WHY MATERIAL SPACE MATTERS FOR MEANINGFUL ASSOCIATION: MOTIVATING A SOCIOSPATIAL PERSPECTIVE ...... 1

Introduction ...... 1

Narrowing the Scope to Material Social Spaces ...... 6

America’s Shifting Topography and the Erosion of Public Spaces for Associations ...... 11

Spatial Regulations and Their Adverse Effects on Associations ...... 16

Tactical Uses of Spatial Regulations: Controlling Associations through Spatial Maneuvers ...... 26

Conclusion ...... 32

2. STUDENT GROUPS ON CAMPUS: A CASE FOR MEANINGFUL ASSOCIATION AND CAPACIOUS PLURALISM ...... 35

Introduction ...... 35

Two Components of Meaningful Association for Student Groups ...... 46

How RSO Programs Disrupt Meaningful Association...... 52

How RSO Programs Rely Upon a Problematic Premise and Diminish Campus Diversity ...... 66

Remediation: Envisaging Capacious Campus Pluralism ...... 72

Conclusion ...... 77

3. A CRITIQUE OF HOW COURTS ASSESS UNIVERSITY INTRUSIONS ON MEANINGFUL ASSOCIATION ...... 81

Introduction ...... 81

Background: Public Forum Doctrine and Its Critics ...... 83

Recent Uses of Public Forum Doctrine to Assess University Intrusions on Student Groups ...... 87

Four Problems with Recent Public Forum Analysis ...... 95

Conclusion ...... 108

4. LEARNING TO LIVE TOGETHER AS NEIGHBORS WITHIN A PLURALISTIC CAMPUS SETTING ...... 114

Introduction ...... 114

Ruminations on the Basis and Practice of Campus Neighborliness ...... 116

A Reoriented Standard for Evaluating Student Groups ...... 132

Conclusion ...... 135

5. CONCLUDING REMARKS ...... 137

Concluding Prescriptions and Acknowledgments ...... 139

Final Considerations ...... 146

APPENDIX: AN ANALYSIS OF HARVARD'S RECENT SANCTIONS POLICY ...... 154

BIBLIOGRAPHY ...... 161

CHAPTER ONE

WHY MATERIAL SPACE MATTERS FOR MEANINGFUL ASSOCIATION: MOTIVATING A SOCIOSPATIAL PERSPECTIVE

Introduction

Voluntary associations have long been an important object of discourse among political theorists and legal scholars. They have been typified and differentiated in myriad ways.1 Their importance—personally, socially, and politically—has been traced out and haggled over in the context of competing political visions.2 The shape, weight, and limits of their associational freedom have also been thoroughly probed, often in the context of U.S. constitutional law.3 But

1In the context of First Amendment law, legal scholars commonly distinguish between intimate and expressive associations, as well as commercial and non-commercial associations. For a lucid discussion and typology of voluntary associations, see Mark E. Warren, Democracy and Association (Princeton: Princeton University Press, 2001). For discussions of different types of associations, see, e.g., Amy Gutmann, ed., Freedom of Association (Princeton: Princeton University Press, 1998). On the hybrid, many-sided character of associations and the risks of general classifications of associations, see Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (Princeton: Princeton University Press, 1998).

2Among others, George Kateb, Nancy Rosenblum, and Jacob Levy stress that freedom of association is integral to personal freedom. See George Kateb, “The Value of Association,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998); Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America; Jacob Levy, Rationalism, Pluralism, and Freedom (Oxford: Oxford University Press, 2015). Robert Vischer argues that associations play a vital role in the pursuit of identity, expression, purpose, and meaning. See Robert K. Vischer, “The Good, the Bad and the Ugly: Rethinking the Value of Associations,” Notre Dame Law Review 79, no. 3 (2004). John Inazu, Tabatha Abu El-Haj, and Ashutosh Bhagwat emphasize the crucial role that voluntary associations can play in democratic self-governance. See John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (New Haven: Yale University Press, 2012); John D. Inazu, Confident Pluralism: Surviving and Thriving through Deep Difference (Chicago: The University of Chicago Press, 2016); Tabatha Abu El-Haj, “The Neglected Right of Assembly,” UCLA Law Review 56, no. 3 (2009); Tabatha Abu El-Haj, “Changing the People: Legal Regulation and American Democracy,” NYU Law Review 86, no. 1 (2011); Tabatha Abu El-Haj, “Friends, Associates, and Associations: Theoretically and Empirically Grounding the Freedom of Association,” Arizona Law Review 56, no. 1 (2014); Ashutosh Bhagwat, “Associations and Forums: Situating CLS v. Martinez,” Hastings Constitutional Law Quarterly 38, no. 3 (2011); Ashutosh Bhagwat, “The Democratic First Amendment,” Northwestern University Law Review 110, no. 5 (2016).

3See especially Gutmann, Freedom of Association; Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly. For an alternative interpretation of freedom of association, see Andrew Koppelman and Tobias Barrington Wolff, A

political theorists and legal scholars alike have generally neglected the spatial dimensions of voluntary association and have treated space as an assumed, inert background only tangentially related to associational concerns, if at all.4

This oversight begs remedy given that sociality and spatiality are tightly interwoven. The social practices of voluntary associations must unfold somewhere, in some kind of social space, and how this space is constructed and regulated can have serious repercussions for voluntary associations. In practice, members of viable voluntary associations engage in a range of activities integral to and expressive of their shared lives, values, and purposes: they gather, assemble, organize, debate, worship, solicit, recruit, protest, and petition, among other things. Some of these activities are limited to members, while others are open to or directed toward non- members. Nevertheless, all of these activities play out somewhere—in some spatial medium and context—and therefore have a necessary spatial component.

Some voluntary associations confine their activities to property that they own. But many associations do not, either out of necessity or choice. Consequently, they seek to extend their activities into social spaces that they cannot claim as their own. These spaces might include coffee shops, plazas, sidewalks, shopping malls, university campuses, and community centers.

Many associations have compelling reasons for gathering and acting in these spaces. They may do so to engage with members of the public, recruit new members, boost their public presence, exercise their First Amendment rights, and act upon their collective purposes. They may also do

Right to Discriminate? How the Case of Boys Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009).

4There are important exceptions, however. See, e.g., Bhagwat, “Associations and Forums”; Michael W. McConnell, “Freedom by Association,” First Things, no. 225 (2012); Anthony Maniscalco, Public Spaces, Marketplaces, and the Constitution: Shopping Malls and the First Amendment (Albany: SUNY Press, 2015); Inazu, Confident Pluralism.

so simply because they have nowhere else to meet. Among other things, social spaces like university campuses can enable associational activities and enhance their efficacy.

Salient problems come to light once we adopt a sociospatial vantage point and map associations and their activities onto a dynamic, regulated, and contested topography.5 In

America at least, some spaces most amenable to public associational activities have been erased due to factors like privatization and commercialization. This physical erosion of public space means that groups have fewer places where they can freely gather and effectively engage with the public. But the erosion of public space is only part of the problem. The regulation of space presents additional problems. Even ostensibly public places in America are increasingly managed through complex spatial regulations ranging from access policies to free-speech zones.

Among other things, these regulations can enervate expressive group activities like assembly and protest through geographic confinement; displace certain groups simply because they are the wrong type; and pressure groups to compromise their internal values, purposes, and membership criteria. Moreover, state and private actors sometimes use spatial regulations as tactics to unfairly target certain groups.

Consider a few current trends in America:

• In many states, groups are prohibited from engaging in expressive activities like

assembly within privately owned public places such as shopping malls and plazas.6 These

prohibitions limit groups from effectively reaching the public.

5Throughout this dissertation, I use the term “sociospatial” to emphasize the relationship between the associational activities of voluntary associations and the spaces in which these activities occur. While a more precise term might be “associational-spatial,” I use the term “sociospatial” because I find it less awkward.

6“Assembly on Private Property | First Amendment Center,” accessed July 5, 2017, http://www.firstamendmentcenter.org/assembly-on-private-property. For representative legal cases involving groups assembling in commercial spaces, see, e.g., Fiesta Mall Venture v. Mecham Recall Com., 159 Ariz. 371 (A.Z. Ct. App. 1988); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496 (N.Y. 1985); Woodland v. Citizens Lobby, 423 Mich. 188 (Mich. 1985).

• Local governments increasingly rely on zoning schemes like security zones to zone out

expressive (group) activities in public areas during social and political events. For

instance, Cleveland’s 3.3 square mile secure zone—drawn up in anticipation of the 2016

Republican National Convention—threatened to stymie the peaceful activities of dozens

of civic and political groups.7

• Both public and private universities continue to construct campus “free speech zones,”

which confine and dampen expressive group activities, in spite of the negative publicity

that these zones often elicit.8 The University of Cincinnati, for instance, confined

expressive activities on its campus to a single Free Speech Area that comprised roughly

.01% of its campus.

• Dozens of universities have recently rolled out “all-comers” policies, which require

recognized student groups to open membership and leadership to all students regardless

of status or belief. Non-recognized groups are denied access to campus spaces and

resources, among other things. At universities like Vanderbilt University, the enactment

of all-comers policies has pushed numerous student groups off campus and subsequently

marginalized them from campus life.

7Citizens for Trump v. City of Cleveland, No. 16-CV-1465 (N.D. Ohio June 21, 2016).

8For simplicity, I use the terms “colleges” and “universities” interchangeably throughout this dissertation and often use the term “universities” to refer to institutions of higher learning generally. Moreover, while there are important legal differences between public and private universities in the U.S., I do not emphasize these differences because the bent of this dissertation is exploratory and prescriptive rather than explanatory and descriptive. The central focus is on how universities (whether public or private) should treat student groups, not on how they can or must treat student groups in accordance with their current legal obligations. Given this focus, I am not centrally concerned with the fact that students at public universities have First Amendment rights (including a right of association) while students at private universities do not have such rights. That being said, many of the prescriptions I offer are sensitive to concrete, documented challenges faced by student groups at universities in the U.S. from the 1970s to the present.

Spatial matters like these implicate what I term “meaningful association” for a diverse array of voluntary associations in the United States.9 This is because meaningful association presupposes at least two things. First, it presupposes amenable environmental conditions such as accessible spaces and venues where associations can gather and engage with the public. Second, it presupposes significant freedom for associations to control their respective purposes, values, and membership/leadership requirements.10 The first facet speaks to the external conditions for associations; the second facet speaks to the internal integrity, coherence, and composition of associations. Absent either of these facets, meaningful association is enfeebled. The topographic changes and spatial regulations I problematize in this chapter implicate both of these facets.

The main purpose of this chapter is to explore the dynamic interweaving of things associational and spatial in order to motivate a sociospatial perspective. In the first section I clarify that my focus is on material social spaces, and I discuss two common ways to represent and differentiate them. In the second section I point to an unsettling problem in America: the physical erosion of public spaces open to voluntary associations and their activities. In the third section I explain how spatial regulations like zoning schemes and access policies can impede meaningful association. In the fourth and final section I express concerns about tactical uses of spatial regulations aimed at disciplining certain groups. I paint in broad strokes throughout this chapter in order to sketch out basic concerns and lay the theoretical groundwork for future

9The discussion of meaningful association in this chapter is introductory. In subsequent chapters I present a fuller conception of meaningful association that is specific to student groups at places of higher education.

10On why voluntary associations need internal control over their membership and leadership, see Nancy L. Rosenblum, “Compelled Association: Public Standing, Self-Respect, and the Dynamics of Exclusion,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 75–108; Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America; Steffen N. Johnson, “Expressive Association and Organizational Autonomy,” Minnesota Law Review 85, no. 6 (2001); Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly.

chapters, which will explore tensions between student groups and universities on university campuses in the U.S.

Narrowing the Scope to Material Social Spaces

In this section I clarify that my treatment of space is limited mainly to material, concrete social spaces that can function as important sites for associations who choose to move beyond their private property.11 This treatment narrows the focus to places like shopping malls, university campuses, and coffee shops that provide a “natural habitat” for groups looking for somewhere to gather or engage with the world beyond themselves.12 These spaces typically give place to the bustle and hum of social interaction among members of the public and serve as informal gathering places. They also make a wide range of associational activities both possible and effective. Although non-material spaces such as online forums can also function as outlets for associations and their activities, I focus on material social spaces in the interest of a more bounded analytical frame. Myriad groups still gather and act in material spaces despite the availability of non-material ones.

11Scholars from numerous disciplines have offered differing conceptions of “space” and place” (as well as how space and place are related) from divergent perspectives. See, e.g., John Agnew, Place and Politics: The Geographical Mediation of State and Society (Boston: Allen & Unwin, 1987); Edward W. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory (London: Verso, 1989); Ray Oldenburg, The Great Good Place: Cafés, Coffee Shops, Community Centers, Beauty Parlors, General Stores, Bars, Hangouts, and How They Get You through the Day, 1st ed. (New York: Paragon House, 1989); Henri Lefebvre, The Production of Space (Oxford: Blackwell, 1991); Edward Casey, The Fate of Place (Berkeley: University of California Press, 1998). Following scholars such as Margaret Kohn, Don Mitchell, John Parkinson, and Timothy Zick, I focus on concrete space rather than abstract or linear space. I sometimes use “space” and “place” interchangeably, although in chapters four and five I distinguish the two concepts in light of Thomas Gieryn’s observation that, “Place is space filled up with people, practices, objects, and representations.” Thomas F. Gieryn, “A Space for Place in Sociology,” Annual Review of Sociology 26, no. 1 (2000): 465. See also John Parkinson, “How Is Space Public? Implications for Spatial Policy and Democracy,” Environment and Planning C: Government and Policy 31, no. 4 (2013): 684 (“‘Space’ denotes the physical setting and ‘place’ denotes the fuller social construct.”). It should be noted that even scholars such as Zick who stress the importance of place (as distinct from space) sometimes use the terms “place” and “space” interchangeably.

12For a fuller typology of public spaces, see Stephen Carr et al., Public Space (Cambridge: Cambridge University Press, 1992).

While I limit my focus to material social spaces, deciding how to represent, or describe, these spaces is not simple. In one sense these spaces are not imagined or theoretical; they are concretely located somewhere in space and time, just like the social activities they invite and enable. In another sense, they are part of a built environment constructed by diverse architectural, historical, social, and political forces. The constructed nature of the built environment inspires differing conceptions of material social spaces.

Scholars have offered diverse conceptions of material social spaces as well as multiple ways to differentiate these spaces. Ray Oldenburg has famously described informal gathering places such as coffee shops and post offices as “third places” between work and home.13 Michael

Walzer has distinguished between “open-minded” spaces, such as university campuses, and

“single-minded” spaces, such as residential areas.14 Certain social spaces have also been described as “expressive,” “loose,” “safe,” “democratic,” “insurgent,” and “institutional.”15 Such descriptors not only elucidate the physical characteristics of a particular social space but also the

13Ray Oldenburg, The Great Good Place.

14Michael Walzer distinguishes between two kinds of public space: “The first is single-minded space, designed by planners or entrepreneurs who have only one thing in mind, and used by similarly single-minded citizens. Entering space of this sort we are characteristically in a hurry. The second is open-minded space, designed for a variety of uses, including unforeseen and unforeseeable uses, and used by citizens who do different things and are prepared to tolerate, even take an interest in, things they don't do.” Michael Walzer, “Pleasures and Costs of Urbanity,” Dissent Magazine, Fall 1986, 470.

15On expressive space, see especially Timothy Zick, “Speech and Spatial Tactics,” Texas Law Review 84, no. 3 (2006); Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge: Cambridge University Press, 2009). Zick emphasizes the expressiveness of place (as part of the expressive topography) and treats place as the foundation of expressive rights. On loose space, see Karen Franck and Quentin Stevens, eds., Loose Space (New York, NY: Routledge). Loose Place explores how people appropriate urban public space for their own purposes. For a history of “safe space,” see Malcolm Harris, “What’s a ‘Safe Space’? A Look at the Phrase’s 50-Year History,” Fusion, accessed July 5, 2017, http://fusion.kinja.com/what-s-a-safe-space-a-look-at- the-phrases-50-year-hi-1793852786. Among other things, “safe space” may refer to a physical space or to a particular community. On democratic space, see, e.g., Marcel Henaff, Public Space and Democracy (Minneapolis: University of Minnesota Press, 2001); John Parkinson, Democracy and Public Space: The Physical Sites of Democratic Performance (Oxford: Oxford University Press, 2012). On institutional and insurgent space, see Jeffrey Hou, ed., Insurgent Public Space: Guerrilla Urbanism and the Remaking of Contemporary Cities (New York: Routledge, 2010). Institutional public space is defined by governments and corporations, whereas insurgent public space is created by citizens and communities.

activities that “make” this space. Spatial representations can be descriptive, prescriptive, or both.

For instance, we might identify a public plaza as a democratic space because it is a site for democratic activity and/or because we think it ought to function as such a site.

Consider two common ways to typify material social spaces. The first way draws out the public or private dimensions of social spaces and distinguishes them on a public/private gradient.16 This turns out to be a complex endeavor. As concepts, “public” and “private” both carry multiple senses, including ownership, accessibility, and function. A place such as a shopping mall or coffee shop might be privately owned but publicly accessible. Another place might be publicly owned and funded but not easily accessible to the public; some public university campuses come to mind in this regard. In contrast, some privately owned universities might construct open and accessible grounds and facilities—and thus invite public sphere activities—notwithstanding their private status. They may therefore be robustly public in terms of accessibility and function despite being private in terms of ownership. Military bases are publicly owned but obviously closed to the public. Moreover, some of the most vital and vibrant places for public activities and interactions might be privately owned places like local pubs or coffee shops. Margaret Kohn rightly challenges our intuitive understandings of public and private space, noting that, “Most of the places that we share with strangers are neither public nor

16Scholars have proposed differing criteria for assessing the public/private dimensions of physical spaces. Anthony Maniscalco offers six facets of public space: openness and accessibility to users; support for community practice; visibility and revelation; diversity, tolerance, and accommodation; and authenticity and unexpectedness. See Anthony Maniscalco, Public Spaces, Marketplaces, and the Constitution, 6. John Parkinson offers four measures of public space: it is openly accessible; consumes public resources; has common impacts; and is a stage for the performance of public roles. See John Parkinson, Democracy and Public Space, 202. Margaret Kohn identifies four features of public spaces: they are owned by the government; they are inclusive and accessible to everyone; they facilitate sociability among friends and encounters with strangers; they are places for “staging polemical scenes.” See Margaret Kohn, “Privatization and Protest: Occupy Wall Street, Occupy Toronto, and the Occupation of Public Space in a Democracy,” Perspectives on Politics 11, no. 1 (2013): 107.

private but exist in a gray area between the two.”17 Many material social spaces are complexly public and private, and we do well to consider the different ways in which this is the case.

A second way to typify material social spaces draws on specifically legal mappings of space. Legal representations of social spaces “owned” by government bodies (as trustees of the public) have been guided by public forum doctrine at least since the 1939 Supreme Court case,

Hague v. CIO. The history of public forum doctrine is complex, and legal critiques of the doctrine are abundant.18 But the spatial designations integral to the doctrine in its current form are simple in that they only include a few categories. Courts designate a wide array of government property as “forums” and then sort this property into the following forum categories: traditional public forums, designated public forums, limited public forums, and nonpublic forums.19 Traditional public forums include sidewalks and public parks. Designated public forums include public property opened specifically for public expression; they may include municipal theaters or meeting rooms at public universities and libraries. Limited public forums include spaces open only to certain types of speech or speakers; they may include public university campuses or public meeting rooms. Nonpublic forums include airport terminals and

17Margaret Kohn, Brave New Neighborhoods: The Privatization of Public Space (New York: Routledge, 2004), 9. Timothy Zick also warns against the categorical application of a public-private distinction to places like shopping centers. See Zick, Speech Out of Doors, 163.

18For accessible histories of public forum doctrine, see Robert C. Post, “Between Governance and Management: The History and Theory of the Public Forum,” UCLA Law Review 34, no. 5 (1987); Calvin Massey, “Public Fora, Neutral Governments, and the Prism of Property,” Hastings Law Journal 50, no. 2 (1999); Margaret Kohn, Brave New Neighborhoods: The Privatization of Public Space (New York: Routledge, 2004); John D. Inazu, “The First Amendment’s Public Forum,” William and Mary Law Review 56, no. 4 (2015). For criticisms of public forum doctrine, see Richard B. Saphire, “Reconsidering the Public Forum Doctrine,” University of Cincinnati Law Review 59, no. 3 (1991); Michael Paulsen, “A Funny Thing Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on Equal Access for Religious Speakers and Groups,” UC Davis Law Review 29, no. 3 (1996); Zick, “Speech and Spatial Tactics”; Lyrissa Lidsky, “Public Forum 2.0,” Boston University Law Review 91, no. 6 (2011); Inazu, Confident Pluralism.

19There is ongoing confusion within the judiciary and among legal scholars about what the basic forum categories even are. I address this problem more extensively in chapter three.

the internal mailing systems of public schools. Some government-owned spaces such as military bases are not treated as forums at all.

Importantly, legally-drawn spatial representations are both unsettled and contested; this is unsurprising given their far-reaching ramifications. When a government actor intrudes upon public liberties (e.g., speech, assembly) on public property, the type of forum in question determines the standard of scrutiny the judiciary uses to assess the intrusion. Traditional and designated public forums merit more stringent scrutiny; limited and nonpublic forums merit weaker scrutiny.20 Whether a particular government intrusion upon speech or assembly is constitutional thus hinges upon where this intrusion occurs. In this light, how the judiciary chooses to designate the space (i.e., location, site, medium) in question matters a great deal.

I have discussed two common ways to represent material social spaces for three reasons.

First, on a practical level, how these spaces are represented can have significant repercussions for associations seeking to act within these spaces. For instance, the decision to designate a public space as a limited public forum, as opposed to a traditional public forum, can do much to dampen group activities like assembly and even displace certain groups altogether. Second, on a conceptual level, how we choose to represent material social spaces will color how we assess associational issues within these spaces. Some spatial representations reflect reductive, one- dimensional understandings of social spaces and blind us to associational issues altogether. Legal representations of public spaces simply as “speech forums,” for instance, can trap us in a speech- centered mindset, hinder us from seeing spaces as multi-dimensional, and stymie clear-eyed

20On the standards of scrutiny, see “Forums,” Legal Information Institute, June 10, 2009, https://www.law.cornell.edu/wex/forums.

engagement with associational issues within these spaces that are distinct from speech issues.21

Third, in terms of analytical scope, it is important to clarify that my interest extends beyond publicly owned spaces; it includes privately owned spaces as well.

America’s Shifting Topography and the Erosion of Public Spaces for Associations

In the previous section I clarified that my focus is on material social spaces and discussed two common ways by which these spaces can be represented and differentiated. In this section I turn to an ongoing problem in America: the topographic erosion of physical public spaces where associations can freely gather and effectively engage with the public. This erosion presents particular challenges for associations geared toward public-regarding activities like assembly and solicitation.

Numerous scholars have traced and lamented the disappearance of public space in

America. James Kunstler has narrated the geographic decline of America’s man-made landscape.22 Michael Sorkin has tracked the privatization of “public” spaces such as shopping malls and sports complexes and the corresponding decline of public squares and sidewalks as places for vital public interaction.23 More pointedly, Timothy Zick and Margaret Kohn have probed the significance of the decline of public spaces for the exercise of public liberties such as free speech and protest. Zick argues that the physical erosion of public space “has severely diminished our expressive topography — the public space in which First Amendment liberties

21I develop this concern in chapter three. On some important but neglected distinctions between association and speech, see Bhagwat, “Associations and Forums”; Inazu, Confident Pluralism, 34–35.

22James Kunstler, Geography of Nowhere: The Rise and Decline of America’s Man-Made Landscape (New York: Simon and Schuster, 1994).

23Michael Sorkin, ed., Variations on a Theme Park: The New American City and the End of Public Space (New York: Hill and Wang, 1992). See also Mark Gottdiener, The Theming of America: Dreams, Visions, and Commercial Spaces (Boulder, CO: Westview Press, 1996).

may be exercised.”24 With America’s shifting expressive topography in view, Zick points to an unsettling trend: public spaces where public liberties merit robust constitutional protection are shrinking, whereas those spaces where such liberties merit limited or no protection are expanding. The topographic erosion of public places means that there are fewer sites where free speech and other public liberties can be exercised “out of doors.”25 Margaret Kohn has shown how the privatization of space, including the rapid rise of shopping malls and gated communities, has dampened free speech and other public liberties by physically swallowing up public spaces for such liberties.26

Part of the story of the decline of public space involves the rise of commercial space.27

Privately owned commercial spaces like shopping malls and business districts now constitute a significant part of the American topography. America’s 48,000-plus shopping centers span upwards of six billion square feet of retail space.28 These spaces increasingly function as “new” town squares in the sense that they attract members of the public; and yet, though they are open to the public, they are not usually open to public liberties. Indeed, owners of these public spaces have little incentive to encourage the exercise of public liberties, and they often prohibit and prosecute such exercise with the law firmly on their side.29

24Zick, Speech Out of Doors, 5.

25Zick, Speech Out of Doors.

26Kohn, Brave New Neighborhoods: The Privatization of Public Space, 80. Kohn and Zick discuss the erosion of public space in much more detail than I do. Their focus is on what this erosion means for public liberties (namely free speech), whereas my focus is on what this erosion means for voluntary associations.

27For a discussion of how private property owners use geographic strategies to move public life inside, see Don Mitchell, “The Liberalization of Free Speech: Or, How Protest in Public Space Is Silenced,” in Spaces of Contention: Spatialities and Social Movements, ed. Walter Nicholls, Byron Miller, and Nicholas Blomley (Surrey, BC: Ashgate, 2013).

28Zick, Speech Out of Doors, 147.

29Ibid., 162–63.

This finding might strike us as unsurprising: shopping malls and business districts are commercial spaces geared toward consumption and profit, not toward a vibrant public sphere open to public liberties. But the topographic spread of privately owned public spaces presents challenges for groups seeking to engage with the public. In a basic sense, groups might struggle to find sufficient places in which to gather and engage with members of the public. Groups committed to public engagement might have trouble reaching a public audience due to the lack of public spaces amenable to such engagement. Political and civic associations invested in public advocacy and recruitment might face similar challenges.

These challenges are not hypothetical or imagined. Consider an example that illustrates a more widespread issue. When the Michigan Citizens Lobby (MCL) sought to gather enough signatures to qualify an initiative petition, members of the MCL went to nearby Woodland Mall in Kentwood, MI, because they knew they could find members of the public there.30 But

Woodland Mall maintained a written trespass policy prohibiting any activity in the shopping center “not directly related to the enhancement of commercial retail sales…including soliciting, petitioning, securing signatures, speech making, distributing handbills, and similar activity.”31 In spite of warnings from mall management, members of the MCL set up tables at Woodland Mall and began to solicit signatures for their petition. Woodland filed a complaint against the MCL in court, and the trial judge issued an injunction prohibiting the MCL from engaging in expressive activity anywhere on Woodland Mall property. Upon review by Michigan’s supreme court, the court ruled against the Michigan Citizens Lobby. The court noted the MCL’s “factual assertion that the development of private shopping centers has adversely affected the ability of individuals to exercise the rights of free speech, assembly, and petition, because these shopping centers have

30Woodland v. Citizens Lobby, 423 Mich.

31Ibid., 194.

replaced the traditional public retail districts.”32 But the court dismissed this assertion due to insufficient evidence and the purported availability of alternative forums—such as radio and television—for expressive activity.

Over the past few decades many state courts have tried similar cases involving expressive activities on privately owned property and handed down similar rulings in favor of the property owners.33 In most states, the owners of privately owned public spaces such as malls and plazas can ban expressive liberties on their property outright. Groups have no right to assemble, solicit, recruit, or advocate in these spaces.

It is important not to downplay the challenges that the commercialization of space presents for some groups. For many groups, gaining meaningful access to privately owned public spaces—and thereby reaching the public—is vital to their purposes and long-term viability. A public advocacy group such as the MCL that cannot effectively reach the public may find its purposes thwarted and its viability threatened. The fact that groups like the MCL are willing to spend significant time and resources battling for accessible public spaces should alert us to just how much these spaces matter. Moreover, past and present legal battles over the accessibility of public spaces do not tell the full story of the harm some groups suffer as a result of eroding public space. This is because groups do not have an explicit, constitutionally-protected “right of access” to space for their group activities, although the First Amendment and public forum doctrine can indirectly protect groups by enabling them to express their viewpoints in certain public forums.

32Woodland v. Citizens Lobby, 423 Mich. at n. 47.

33For a list of states and legal cases, see “Assembly on Private Property | First Amendment Center.”

The commercialization of space is not the only problem, however. A related problem is that even publicly owned spaces designated as public forums are literally disappearing.34

Sometimes local governments simply sell off public spaces such as city plazas and thus eviscerate quintessential public forums. In Salt Lake City, for instance, the city government sold an entire city block of Main Street to the LDS Church.35 Historically, that public space on Main

Street had served as a prominent site for protest and demonstration—so much so that it was known as “Soapbox Corner.” But after the sale, the LDS Church banned assembly, demonstration, and other public activities on their property. Several organizations, including the

First Unitarian Church of Salt Lake City and the Utah National Organization of Women, challenged the sale, arguing that the plaza area was still public property open to public liberties such as speech. In the end, their legal challenges failed, and the net result was that the public lost what had long been a vital public space.

The abridgment of public spaces reminds us that space is dynamic. It also alerts us to the fact that material public spaces where groups can freely gather and effectively engage with the public might be more limited than we realize. America’s changing landscape bodes ill especially for groups like the Michigan Citizens Lobby whose modus operandi hinges on public engagement through the effective exercise of public liberties. These groups have fewer places to go if they want to reach the public, and those places that remain are not always amenable to their activities. Faced with these challenges, some groups might find alternative and creative ways to

34On how and why public forums are disappearing, see Jamin B. Raskin and Clark L. LeBlanc, “Disfavored Speech About Favored Rights: Hill v. Colorado, the Vanishing Public Forum and the Need for an Objective Speech Discrimination Test,” American University Law Review 51, no. 2 (2001); Kevin Francis O’Neill, “Privatizing Public Forums to Eliminate Dissent,” First Amendment Law Review 5 (2007).

35First Unitarian Church of Salt Lake v. Salt Lake, 308 F.3d 1114 (10th Cir. 2002). See also the related case, Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005).

reach the public. But this does not erase their interest in gaining meaningful access to key public places.

Spatial Regulations and Their Adverse Effects on Associations

In the previous section I stressed that the physical erosion of public spaces in America presents challenges for certain groups. The emphasis there was on physical changes to America’s topography. In this section I focus on the regulatory dimension of this erosion.36 The problem for groups is not just that accessible places are disappearing in the face of commercialization and privatization. It is also that even ostensibly public places are governed by spatial regulations that restrict what types of activities unfold within them, where these activities occur, and who has access to these places. These spatial regulations sometimes disrupt meaningful association in serious ways.37

I focus on two kinds of spatial regulations. The first kind—zoning schemes—impedes associations by geographically confining or zoning out their expressive activities and thus dampening their impact. Zoning schemes present challenges mostly for groups seeking to engage the public through expressive activities like assembly and speech. The second kind—access policies—disrupts meaningful association in a more direct manner. Access policies explicitly bar certain types of groups from gaining access to a place or implicitly pressure groups into choosing between the external or internal conditions of meaningful association. Access policies harm

36Of course, the physical and regulatory facets of America’s topography are interwoven. For instance, the physical erosion of public space is problematic in part because expressive liberties currently merit weak legal protection within privately owned spaces.

37Importantly, I do not argue that spatial regulations are inherently problematic. The descriptive observation that some spatial regulations harm associations should not be misconstrued as a normative argument against spatial regulations in toto. Spatial regulations can serve legitimate purposes: they can keep people safe, prevent property damage, and enable appropriate uses of a space. There may be viable economic, aesthetic, social, and legal reasons for at least some spatial regulations.

those groups who are simply the wrong type or who want to maintain control over their internal integrity. Zoning schemes and access policies often work in tandem at places like public universities in order to regulate both the external (i.e., public) and internal (i.e., private) practices of groups.

Zoning Schemes: Zoning Out or Confining Expressive (Group) Activities

Guided by what David Allen calls the “Planning Framework,” governments in the U.S. increasingly construct artificial zones within or around public places (e.g., parks) in order to contain citizens and their activities. Public officials have ample latitude not only in drawing up the boundaries of these zones but also in regulating what goes on within them.38 Zoning partitions physical space in order to limit expressive activities to their “appropriate” zone; it settles the question of where these activities are permissible. As a form of sociospatial control, zoning is both pervasive and powerful. Artificial secure zones—often complete with “hard,”

“soft,” and “designated demonstration” zones—regularly govern the spatial environment around public events like political conventions, in part by zoning out expressive activities.39 Free speech zones confine expressive activities at places like public universities to designated spaces that represent only a small fraction of the overall geographic area.

Regulatory zoning affects groups in multiple ways. In general, zoning constrains and confines those groups who rely on expressive activities to engage the public. This is because zoning shrinks the geographic space where these activities are permissible. Groups have less space for their activities. But shrinking space is only part of the problem. Groups may not be able

38David S. Allen, “Spatial Frameworks and the Management of Dissent: From Parks to Free Speech Zones,” Communication Law and Policy 16, no. 4 (2011): 414.

39Scholarly critiques of secure zones and demonstration zones are common. See, e.g., see Mary M. Cheh, “Demonstrations, Security Zones, and First Amendment Protection of Special Places,” University of the District of Columbia Law Review 53 (2004).

to effectively express their message, reach their intended audience, or engage with the public.

This is because spatial zones separate them from the public or close off public areas where expressive activities would be most effective. In some cases, zoning stipulations can render collective activities like parading and assembly impossible and thus thwart the purposes of groups who rely on these activities.

A recent example illustrates how zoning can hurt certain groups. As host of the 2016

Republican National Convention, the city of Cleveland created a 3.3 square mile “Event Zone” in anticipation of the convention. The expansive Event Zone spanned areas well beyond the convention center site; it included neighborhoods, public parks, a college campus, and grocery stores. The city issued permit regulations governing speech, parade, and assembly activities within the Event Zone. The zone included at least seven public parks where groups could typically meet, rally, and assemble via the city’s public site system. As part of its zoning scheme, however, the city shut down the permit system for all but two of the parks during the convention; permits for the remaining two parks were limited to art installations.

The ACLU sued the city of Cleveland on behalf of Citizens for Trump, Organize Ohio, and Northeast Ohio Coalition for the Homeless, alleging that Cleveland’s permit regulations unduly restricted members of the public from exercising their expressive rights during the convention—in part by limiting First Amendment activities to only a few defined locations.40

Pointing to the harms imposed by Cleveland’s regulations, the ACLU argued that Cleveland’s regulations effectively shut down “any planned assembly for any group of any size.”41 The

40See “Demand for Jury Trial,” Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 14, 2016).

41“Transcript of Proceedings Before the Honorable James S. Gwin, United States District Judge” at 15, Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 23, 2016).

ACLU took issue with both the excessive size of Cleveland’s Event Zone and the stringent regulations placed on expressive activities within this zone.

Cleveland’s Event Zone permit stipulations presented severe challenges for a number of organizations, including Organize Ohio and Citizens for Trump. As a nonprofit community organizing catalyst aimed at progressive change, Organize Ohio planned a large parade and rally during the convention. It submitted a parade permit application months before the convention, but the city of Cleveland never acted on the application. A few months before the convention, the city issued a new set of parade stipulations. These stipulations forced Organize Ohio to choose either a parade or a rally, but not both. The city designated one parade route, allocated only fifty minutes per parade, and set a narrow time window for the parades. In response, Organize Ohio complained:

The City’s designated parade route will not allow us to convey our message… We also have a desire to march through a central part of Cleveland—with people, traffic, commercial areas, and houses—to most effectively spread our message. These are all things the City’s official parade route lacks.42

Cleveland’s comprehensive zoning scheme thus flustered Organize Ohio’s ability to convey its message—and further its community organizing goals—not only through administrative delay but through geographic confinement. Organize Ohio’s intended parade would be confined to a designated, ineffective route. As a result, its message would be muted, the symbolism of its parade negated, and its intended audience held out of reach.

Citizens for Trump faced similar challenges. The organization planned a parade and rally during the RNC convention, as well as a series of speeches at a public park in Cleveland’s Event

Zone. Despite submitting the necessary application months before the convention, Cleveland

42“Declaration of Lawrence Bressler” at 5, Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 14, 2016).

never granted or denied the permit application. When Cleveland rolled out its revised permit application, applicants could choose only one type of activity: parade, speech, or park use. In response, Citizens for Trump alleged that Cleveland’s delayed response to its application, and its stringent restrictions on parades and park use, threatened to reduce the effectiveness of its activities and inflicted significant costs. Among other things, Citizens for Trump averred the following:

The location of the City’s designated parade route location is not conducive to what we had originally planned, as the route does not afford a good view of the convention site (and vice versa) and thus does not allow our message to reach those who most need to hear it—the very delegates who had at one point threatened to disregard our votes in support of Mr. Trump. Also, the timing of the parade slots do not match when the delegates will necessarily be at the convention. The parades end before the delegates arrive each day.43

Similar to Organize Ohio, Citizens for Trump faced limits not only on its expressive activities but also on where these activities (e.g., parades) could be conducted. Given that where activities like parades occur determines their effectiveness, both Organize Ohio and Citizens for Trump were right to worry that Cleveland’s spatial restrictions threatened to dampen the impact of their planned activities.

The ACLU’s lawsuit against Cleveland received a favorable hearing. A federal judge found the size of Cleveland’s “secure zone” to be “unduly large” and therefore unconstitutional; the judge also took issue with the fact that Cleveland had not created sufficient alternatives to its designated parade route.44 After the ensuing mediation between the city of Cleveland and the

ACLU, Cleveland agreed to reduce the size of the secure zone, alter the parade route to increase visibility, and extend the time available to apply for parade permits. Not all city administrators

43“Declaration of Timothy Selaty” at 5, Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 14, 2016).

44“Transcript of Proceedings Before the Honorable James S. Gwin, United States District Judge” at 61, Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 23, 2016).

have been as willing to revise their zoning schemes, however, and cities continue to rely on elaborate zoning schemes—including “no protest” and “designated demonstration” zones—in order to contain expressive activities during public events.

Over the past few decades, universities have also employed zoning schemes to regulate expressive activities on their campuses. Numerous universities have constructed artificial “free speech zones” for expressive activities. Free speech zones regulate expressive activities—and, by extension, those groups who typically engage in them—not by banning these activities outright but by confining them to designated, limited areas on campus. These zones often constitute only a small fraction of the campus area; in some cases, they are roughly the size of a classroom. One implication of free speech zones is that the vast campus areas beyond them are not open to expressive activities. They are “no free speech” zones.45 Free speech zones are thus symptomatic of the contraction of campus space open to expressive activities.

As with secure zones used by cities, university-imposed zoning schemes can harm those groups who rely on collective speech, assembly, and protest activities to reach members of the public. A 2012 legal case involving Young Americans for Liberty (YAL) at the University of

Cincinnati (UC) illustrates this harm.46 Despite its status as a public institution, the University of

Cincinnati designated only one space on campus as its Free Speech Area. The area measured roughly 4,537 square feet (comprising about .01% of the campus). UC mandated that all demonstrations, pickets, and rallies were to be held in this area and were to be registered ten days in advance. Students who failed to comply with this policy would be charged with trespassing.

Furthermore, the university asserted that it had the right to regulate all expressive activity on

45Zick remarks that “whenever a free speech zone is created, the unaffected space becomes a de facto ‘speech-free’ zone.” See Zick, “Speech and Spatial Tactics,” 605.

46University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv–155 (S.D. Ohio 2012).

campus because all campus areas, including its designated Free Speech Area, were limited public forums rather than traditional or designated public forums.

When members of Young Americans for Liberty began to walk around campus to gather signatures for a ballot initiative, UC officials warned the students that they could only gather signatures within the designated Free Speech Area. They would be arrested if their signature- gathering activity went beyond the allotted space. After complying with this directive, the students managed to interact with only six of their peers and gather one signature in one day due to limited foot traffic around the Free Speech Area. YAL subsequently filed suit against the

University of Cincinnati on the grounds that their freedom of speech and assembly had been violated. The district judge found UC’s policies problematic on multiple counts and filed a permanent injunction enjoining the policies. UC’s zoning scheme—in concert with its permit requirements—chilled expressive activities on campus, severely confined the geographic scope of these activities, and functioned as an unlawful prior restraint.47

In spite of this ruling against university-imposed free speech zones, dozens of universities continue to use zoning schemes.48 Zick notes a consistent pattern when it comes to university speech zones: university administrators “first turn to tactical zoning only to later reverse their policies in the face of litigation and public pressure.”49 For groups hoping to reach the broader campus community through expressive activities, speech zones do more than confine these activities to small, artificial spaces. They also reduce the impact of these activities and thus fluster the purposes of groups who rely on these activities to carry out their purposes. The YAL

47University of Cincinnati Chapter of Young Americans for Liberty v. Williams.

48FIRE, “‘Free Speech Zones,’ Then and Now,” FIRE (blog), December 27, 2016, https://www.thefire.org/free- speech-zones-then-and-now/.

49Zick, “Speech and Spatial Tactics,” 602.

incident illustrates this effect. In addition, speech zones chill expressive activities on campus.

This is because students and non-students alike are less apt to engage in these activities on campus given the risks of doing so (e.g., being arrested).

The examples I have discussed are not anomalies. As a geographic means of partitioning and regulating public places, zoning schemes are extensive in both type and reach. In fact, Zick remarks that spatial restrictions like zoning have become the norm in America and have been institutionalized. Some type of zone often governs the space in or around airports, sports arenas, churches and other places of worship, and abortion clinics.50 Spatial zoning may be well- intended; it may be aimed at protecting legitimate interests like public order and safety. But it presents challenges for groups geared toward public engagement. The geographic constraint effected through zoning schemes determines where these groups may act, which in turn affects the reach and impact of their (expressive) collective action.

Access Policies: Excluding or Marginalizing Groups Based on Type or Internal Characteristics

Zoning regulations harm groups primarily by confining their expressive activities and thereby dampening the reach and impact of these activities. But, on their face, zoning regulations do not discriminate between or against groups based on their type or internal characteristics.

Access policies, however, operate according to a different logic. They exclude or marginalize some groups from a particular place based on their associational type or internal characteristics

(e.g., viewpoints, membership criteria). As exclusionary mechanisms, access policies more squarely implicate the question of which groups have access to a social space and on what conditions.

50Zick, 604–5.

Some access policies explicitly bar certain types of groups from places such as public libraries, community centers, and university campuses.51 In the campus context, some universities prohibit certain types of student groups from using their campuses. For instance,

Harvard University prohibits single-gender “final clubs” from using its campus even though these associations are composed mainly of Harvard students.52 Such explicit, type-based barriers to campus access may hinder banned groups from enjoying meaningful association and may even threaten their existence. However, these access policies warrant only brief mention here because they are quite straightforward, and the exclusion they effectuate is readily apparent.

In contrast, conditional access policies regulate campus access in a more complex manner, and the exclusion they effectuate is less transparent.53 These policies are often administered through registered (i.e., recognized) student organization (RSO) programs.54 In general, universities grant substantive campus access only to recognized student groups whose internal characteristics align with university norms. Campus access thus hinges upon university recognition, which is contingent upon compliance with university policies (e.g., nondiscrimination requirements). Consequently, non-recognized student groups whose values,

51See, e.g., Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (U.S. 1993). The case involved a church that was prevented from using public school property after-hours to screen a film because New York law stipulated that the school premises were not be used for religious purposes. See also Concerned Women for America Education & Legal Defense, Foundation, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir. 1989); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (U.S. 2001); Bronx Household of Faith v. Bd. of Educ., 750 F.3d 184 (2d Cir. 2014).

52“Organizations defined as non-Harvard or as unrecognized single-gender social organizations are not permitted to conduct any activity at Harvard even though their activities involve Harvard undergraduates.” See “Policy Regarding Undergraduate Student Organizations,” Harvard College Handbook for Students, accessed February 1, 2019, https://handbook.fas.harvard.edu/book/policy-regarding-undergraduate-organizations.

53The critique of registered student organization policies in this subsection is intentionally brief. It is a preview of a more extensive critique offered in chapter two.

54“Registered” and “recognized” are synonymous terms, which universities often use interchangeably. In general, a registered student organization is a recognized student organization. Chapter two includes a fuller discussion of the practical importance of registration, or recognition, for student groups.

purposes, viewpoints, or membership criteria are deemed incongruent with university requirements are often marginalized from campus and campus life. They typically struggle to recruit new members because they have been shut out of club fairs and cut off from campus recruiting tools. They also incur significant expenses because they must rent rooms on campus and pay other fees if they want to maintain some degree of campus presence.55

In recent years, the conditions attached to recognition have become more intrusive as some universities—including Vanderbilt University and the twenty-three campuses within the

California State University system—have attached an “all-comers” requirement to recognition.

This requirement stipulates that recognized student groups must accept all students for membership and leadership positions regardless of status or belief. Student groups who refuse to comply with the all-comers requirement face de-recognition. As a result, they lose affordable access to campus facilities, campus grounds, club fairs, communicative venues, and student email lists, and they often find themselves on the margins of campus life.

A few examples should help to illustrate the pattern of marginalization triggered by the denial of university recognition. In its earlier history, Georgetown University refused to recognize two student groups, Gay People of Georgetown and Gay Rights Coalition, because the groups’ purposes purportedly collided with Georgetown’s Catholic values.56 The groups were subsequently denied equal campus access and marginalized from campus life. In an ongoing dispute, Fordham University has repeatedly refused to recognize a local chapter of Students for

Justice in Palestine (SJP) because of the group’s allegedly “narrow” political viewpoint. SJP’s

55Michael Paulson, “Colleges and Evangelicals Collide on Bias Policy,” The New York Times, June 9, 2014, sec. U.S., https://www.nytimes.com/2014/06/10/us/colleges-and-evangelicals-collide-on-bias-policy.html; Religion News Service, “InterVarsity, College Christian Group, ‘De-Recognized’ At California State University Campuses,” Huffington Post, September 9, 2014, sec. Religion, http://www.huffingtonpost.com/2014/09/09/intervarsity- sanctioned-california-state-university_n_5791906.html.

56Gay Rights Coalition v. Georgetown Univ., 536 A.2d 1 (D.C. 1987).

campus presence has been inhibited as a result.57 At Vanderbilt University, at least ten de- recognized student groups have had to move their activities off-campus since Vanderbilt rolled out its all-comers policy.58 Many of these groups had been part of the Vanderbilt community for years but now face exclusion from the campus community. At universities within the California

State University system, long-established student groups like InterVarsity Fellowship have faced similar challenges after failing to comply with the CSU system’s all-comers policy.

In their current form, RSO policies can present student groups with an unfair choice between two essential facets of meaningful campus association: access to appropriate campus spaces for their respective group activities or sufficient control over their respective values, purposes, and membership criteria. Neither choice is satisfactory; both choices enfeeble meaningful association. Given that the next chapter includes a much fuller critique of RSO policies and their negative effects on student groups, this brief critique should suffice for now.

The basic point is that RSO policies affect both facets of meaningful association and impose significant burdens on a diverse array of student groups.

Tactical Uses of Spatial Regulations: Controlling Associations through Spatial Maneuvers

In the previous two sections I observed that material social spaces are dynamic and regulated in order to stress that physical and regulatory changes to these spaces can adversely affect voluntary associations in significant, though variable, ways. The takeaway thus far has

57See “Fordham University: Prospective Students for Justice in Palestine Chapter Rejected Over Political Beliefs,” FIRE, https://www.thefire.org/cases/fordham-university-prospective-students-for-justice-in-palestine-chapter- rejected-over-political-beliefs/. See also Jesse Singal, “Fordham University Shows Why Liberals Should Fight for Campus Free Speech,” Daily Intelligencer, http://nymag.com/daily/intelligencer/2017/04/fordham-shows-why- liberals-should-fight-for-free-speech.html.

58Annalisa Musarra, “Vanderbilt Faith Groups Follow Catholics off Campus,” OnFaith, April 10, 2012, https://www.onfaith.co/onfaith/2012/04/10/vanderbilt-faith-groups-follow-catholics-off-campus/21543; “Essay on Impact of Vanderbilt Policies on Catholic Students,” Inside Higher Ed, accessed July 5, 2017, https://www.insidehighered.com/views/2012/05/04/essay-impact-vanderbilt-policies-catholic-students.

been that, from an associational perspective, physical and regulatory changes to social spaces matter a great deal. In this section I point to another reason we should take space seriously: spatial regulations can be employed tactically in order to single out and control certain groups. In the hands of the state, for instance, spatial regulations can function as tools for suppressing dissident groups and restricting the activities of groups that rival state supremacy. We should therefore pay attention to how and why spatial regulations are being employed in particular instances rather than simply taking these regulations at face value.

Scholars from a variety of disciplines have shown how public and private actors can manipulate spatial regulations to control basic freedoms. Tying the geography of law to power and social life, Nicholas Blomley describes statist regulations of space as “spatial politics” seen, for example, in legal restrictions on the mobility of pickets.59 Setha Low and Denise Lawrence-

Zuniga explain how spatial tactics represent “the use of space as a strategy and/or technique of power and social control.”60 Joseph Herrold and David Allen both show how the state relies on methods of spatial control (e.g., speech zones) in order to manage dissenting speech and expressive activities.61 Don Mitchell stresses that the “liberal” approach to silencing speech is increasingly exercised through geography rather than censorship. He writes: “The trick for free speech regulation, therefore, becomes one of spatial regulation. Regulation of location, or place, becomes the surrogate for the regulation of content.”62 Speech regulation can be carried out through spatial tactics aimed at eliminating the space for speech.

59Nicholas Blomley, Law, Space, and the Geographies of Power (New York: Guilford Press, 1994), xii.

60Denise Lawrence-Zúñiga and Setha M. Low, “Locating Culture,” in The Anthropology of Space and Place: Locating Culture, ed. Denise Lawrence-Zúñiga and Setha M. Low (Malden, MA: Blackwell Publishers, 2003), 30.

61Joseph D. Herrold, “Capturing the Dialogue: Free Speech Zones and the Caging of First Amendment Rights,” Drake Law Review 54 (2005); Allen, “Spatial Frameworks and the Management of Dissent.”

62Don Mitchell, “The Liberalization of Free Speech,” 47.

Tactical uses of spatial regulations extend beyond controlling free speech, protest, and other expressive activities to controlling the groups who often engage in these activities.

Consider a story recounted by Don Mitchell involving picketing union workers at Denver

International Airport:

Faced with a contract they were not happy with in late September, 2000, about 85 workers on the automated baggage handling system at Denver International Airport (DIA) voted to go on strike against Phelps Program Management, the subcontractor that operated the baggage machinery on the United Concourse… Meanwhile, United got the City of Denver to agree to restrict picketing to a rarely-used, empty parking lot some three miles from the terminal and threatened any non-striking worker with disciplinary action if they failed to show up to work as scheduled. The reason this location was chosen was bluntly stated by the airport’s spokesman: ‘We issued a permit for the union to picket in the Mount Elbert parking lot. United’s workers won’t have to cross the picket line when they get to work.’ In other words, because picketing might have been effective at a more central location, it was banished, an action that threw the unions at the airport into disarray.63

In this example, United (in collusion with the DIA) resorted to spatial maneuvers to ensure that the union workers’ picket would be ineffective. The workers could still picket, but not where they wanted. The spatial restrictions on where the union workers could picket were strategically calculated to annul the impact of the picket and ultimately thwart the workers union from gaining support for their grievances. In this case, the conflict between United and the workers union played out geographically, with United gaining the upper hand through deliberate spatial maneuvering.

In the campus context, universities sometimes use spatial tactics to target, suppress, and/or marginalize unpopular or nonconforming student groups. In some cases, universities employ spatial tactics in ways that are more apparent. A few decades ago, universities including

Virginia Commonwealth University and Texas A&M University routinely denied recognition to

63Mitchell, “The Liberalization of Free Speech,” 57. See also Heather Draper, “United Dreads Sympathy Strike: If 100 Baggage Workers Walk, 4,500 Others May Honor Pickets,” Rocky Mtn. News (Denver), September 23, 2000, at 1B.

gay student groups and student groups advocating gay rights and thereby marginalized them from campus and campus life. 64 They kept such groups at the margins—geographically and socially—not by banning them outright but by refusing to recognize them and making their campuses inaccessible to non-recognized groups. Universities thus used spatial maneuvers to manage their campus cultures and thwart the spread of purportedly deviant groups and ideas.

In other instances, however, universities employ spatial tactics in ways that are less apparent. Specifically, universities sometimes enforce their RSO policies selectively (rather than as-written) in order to target and marginalize some noncompliant student groups while letting other noncompliant groups slide. In 2003-2004, for instance, Louisiana State University (LSU) denied recognition to the Muslim Student Association because the student group refused to align its constitution with LSU’s nondiscrimination policy. The Muslim Student Association lost the ability to reserve and use campus facilities, raise funds, sponsor speakers, and distribute literature on campus.65 LSU initially claimed that all student groups were being asked to comply with the policy, but the administration then shifted its position by claiming that the policy applied to most, but not all, student groups. Several Christian student groups, among others, were not asked to comply with the policy.66 LSU failed to explain why it applied its RSO policies selectively. In recent years, universities including San Diego State University, UC Hastings College of the Law, and the University of Iowa appear to have enforced their RSO policies in a similarly selective

64See Gay Alliance of Students v. Matthews, 544 F.2d 162; Gay Student Services v. Texas A&M University, 737 F.2d 1317.

65“Louisiana State University: Threat to Muslim Group’s Freedom of Association,” FIRE (blog), accessed August 13, 2018, https://www.thefire.org/cases/louisiana-state-university-threat-to-muslim-groups-freedom-of-association- 3/.

66“FIRE Letter to LSU Interim Chancellor William Jenkins, November 11, 2004,” FIRE (blog), November 11, 2004, https://www.thefire.org/fire-letter-to-lsu-interim-chancellor-william-jenkins-november-11-2004/.

and partial fashion.67 The point here is that universities might use spatial tactics to disingenuously target and marginalize certain student groups. This is not to say, however, that universities necessarily employ spatial tactics in this manner.

Sometimes U.S. law courts manage to detect and remedy abuses of spatial regulations.68

But this is not always the case. Courts have sometimes failed to keep abuses of spatial regulations in check or have even exacerbated them. Consider the gradual enervation of public forum doctrine.69 At its inception, the spirit of public forum doctrine was to maintain and protect public spaces for expressive activities such as speech and assembly as well as to prevent state interference with the people and groups engaging in these activities. But more recent interpretations and uses of public forum doctrine betray this spirit. Courts have generally refused to expand the list of public spaces designated as traditional public forums, where government interference with expressive liberties meets strict judicial scrutiny.70 Of late, courts have also been prone to designate a wide array of vital public places, such as public university campuses, as limited public forums. This move has had far-reaching repercussions for groups seeking to gather and act within these places.71 In addition, current applications of public forum doctrine

67This concern is developed in chapter two.

68See, e.g., Healy v. James, 408 U.S. 169 (U.S. 1972).

69A more thorough critique of modern public forum doctrine is presented in chapter three.

70Larissa Lidsky criticizes U.S. law courts for their unwillingness to expand the list of public forums in spite of the obvious need to do so. See Lidsky, “Public Forum 2.0.” John Inazu notes that the nature of public forums has shifted and argues for meaningful access to privately owned public forums. See John D. Inazu, “Virtual Assembly,” Cornell Law Review 98, no. 5 (2013): 1124; Confident Pluralism, 126.

71See Alan Brownstein and Vikram Amar, “Reviewing Associational Freedom Claims in a Limited Public Forum: An Extension of the Distinction Between Debate-Dampening and Debate-Distorting State Action,” Hastings Constitutional Law Quarterly 38, no. 3 (2011).

sometimes represent what Kevin O’Neill describes as “a bold attempt to capture and preserve the government’s ability to control space as a way of managing dissent.”72

Given the ease with which spatial regulations can be manipulated in practice, it is important to examine not only the formal characteristics of these regulations but also the latent motives and intentions that might govern their strategic use in particular instances. Spatial regulations can function as powerful tools for targeting, marginalizing, muting, or co-opting particular groups. Local governments might use demonstration zones not just to secure public order but to mute the public presence and voice of groups that challenge state policies.

Universities might use spatial tactics to press student groups into conformity with institutional norms, co-opt them, or retool their internal practices. They might also single out nonconforming, unpopular, or dissident student groups and use spatial maneuvers to exclude them from campus life.

However, as Timothy Zick observes, “Not all spatial restrictions are or should be constitutionally suspect”; some state regulations of place may “serve aesthetic or other important public interests.”73 In some cases, the negative effects of spatial regulations on meaningful association might be inadvertent or even unavoidable. It is imprudent to assume that spatial regulations are always employed for underhanded purposes or that their adverse effects are necessarily intended. For instance, it is a mistake to assume that speech zones are always used to mute dissenting viewpoints and groups.

To avoid this error, I have separated my discussion of spatial regulations and their negative effects on groups (section three) from my discussion of tactical uses of spatial regulations (section four). Whereas the former section has focused on the negative effects of

72O’Neill, “Privatizing Public Forums to Eliminate Dissent,” 412.

73Zick, “Speech and Spatial Tactics,” 589.

spatial regulations irrespective of motive or intention, the latter section has drawn attention to the more covert motives that sometimes fuel tactical uses of spatial regulations. My general position is that the spatial regulations I have critiqued are less defensible when they are used tactically to target particular groups.

Conclusion

In this chapter I have stressed the interweaving of things spatial and associational and shown why space matters for voluntary associations. From the outset I have stressed that meaningful association presupposes at least two things: (1) amenable external conditions such as accessible spaces and venues where associations can freely gather and effectively engage with the public; and (2) significant freedom for associations to control their purposes, values, and membership/leadership requirements. These two facets of meaningful association involve both the public and private dimensions of voluntary association. With this understanding of meaningful association in tow, I have focused on associations seeking to gather and act within material social spaces (e.g., shopping malls) beyond their own private property. These social spaces are subject to divergent representations (section one), topographic changes (section two), and burdensome regulations (section three). Moreover, the spatial regulations that govern access to these spaces are sometimes used tactically—and without transparent, compelling justifications—to target, mute, and/or exclude disfavored groups (section four).

The purpose of this chapter has been to stimulate our thinking about how these spatial matters weigh on meaningful association. By blending associational and spatial concerns, I have sought to both rescue space from being an assumed, inert background and to rescue associations from being lifted out of their spatial context. I have suggested that some of America’s most vital

(public) places—where groups have strong interests in gathering and acting—may be growing

cold to meaningful association due to expansive privatization, muscular regulatory schemes, and anemic public forum doctrine.

This growing coldness is, perhaps, most evident at many places of higher education in the

United States. After painting in broad strokes in this chapter, in subsequent chapters I focus exclusively on university campuses. There are a few reasons for this. First, from a methodological perspective, different places call for “unique spatial knowledge, tactics, and solutions.”74 While I have treated a variety of social spaces in this chapter, these spaces have their own particularities even though they are all important sites for meaningful association. A shopping mall, for instance, is a different kind of social space than a university campus.

Constructive engagement with questions about the shape of meaningful association within these spaces should bear these particularities in mind. As I will show in subsequent chapters, university campuses are particular kinds of social spaces with their own character. It is critical that we account for this particularity when wrestling with associational issues that unfold there.

Second, universities are important spaces in sociopolitical terms. They have been vital centers for public life and engagement, incubators for democratic movements, and important sites for the exercise of public liberties. Given that universities are woven into the broader community fabric, what happens at universities reverberates well beyond them.

Third, universities are fascinatingly complex in both a spatial and associational sense. In a spatial sense, a typical large university includes a complex array of spaces—from campus quads to student unions to safe spaces—constructed for different purposes and governed by different norms and regulations. In an associational sense, the same university typically hosts a plural associational ecology composed of numerous, diverse voluntary student associations.

These associations are organizationally distinct from the university in spite of their location on

74Zick, Speech Out of Doors, 20.

the university campus. Moreover, the students who compose these associations often reside on or near campus. This sociospatial complexity presents both challenges and opportunities that are unique to the university setting.

Fourth, universities are hotly contested spaces today. This follows in part from their importance and their sheer sociospatial complexity. Current disputes involving campus safe spaces, controversial speakers, and “discriminatory” student groups all feed upon and manifest competing ideas about what universities are and what they should be. More broadly, contestation runs through how universities qua places should be conceptualized and regulated. Such contestation is evident in legal cases where judges rely on different spatial metaphors (e.g., the university as a marketplace of ideas) and spatial designations (e.g., public universities as limited public forums) as they evaluate issues playing out at universities.

Lastly, most political theorists have failed to give sufficient attention to university issues specifically, as have most scholars who focus on public space and the politics of space. This failure is regrettable given that university campuses are important, complex, and contested spaces where perplexing normative issues are currently brewing. Subsequent chapters will examine some of these issues through the lens presented in this chapter. Specifically, the focus will be on the importance and dynamics of meaningful association for student groups, how universities disrupt meaningful association through sociospatial regulations, and how universities might make their campuses capaciously-pluralistic and neighborly places that are more amenable to meaningful association.

CHAPTER TWO

STUDENT GROUPS ON CAMPUS: A CASE FOR MEANINGFUL ASSOCIATION AND CAPACIOUS PLURALISM

Introduction

After discussing a variety of social settings in the previous chapter, in this chapter I turn to examine college and university campuses in the U.S. This focus is warranted, in part, because campuses are theoretically significant spaces that have received insufficient attention from political theorists. They are dynamic, complex, and contentious sites where competing conceptions of values like diversity, inclusion, pluralism, and free expression are worked out and tested on the ground. By approaching campuses as fertile sites worthy of scholarly attention, political theorists can discover the divergent ways in which students, groups, and university administrators conceive of and act upon socially and politically important values. Moreover, concrete practices and problems within the campus setting can inform and challenge how theorists conceive of such values.

Part of the intrigue of universities stems from their remarkable complexity. There are multiple aspects of this complexity. In an organizational sense, universities are multifaceted, multilayered institutions with numerous purposes, functions, and commitments. There is ongoing debate about the appropriate purposes of institutions of higher learning as well as how these

purposes should be realized. There are also valid concerns that some colleges and universities in the U.S. lack internally coherent purposes or clear institutional missions.75

Universities are also complex in a spatial sense. Their campuses are important, complex, and often contentious places that are imbued with social, political, and historical meaning.

University campuses in the U.S. have been vital centers for public life and engagement, incubators for social movements, and key sites for the exercise of public liberties like speech and assembly. Spatially, a typical campus includes a complex array of spaces—from campus quads to student unions to dormitories—constructed for different purposes and governed by different norms and regulations. These spaces may be physical or virtual, public or private, indoor or outdoor. Timothy Zick elucidates the sheer complexity of university campuses when he observes that:

The larger institutions function essentially as self-contained towns. Campuses may have their own sanitation workers, groundskeepers, and police forces. Thousands of students may live on campus, or in nearby off-campus housing. On the campus itself there are typically public streets, parking facilities, sidewalks and walkways, administrative and classroom buildings, stadiums and sports arenas, theaters, bookstores, convenience stores, restaurants, hotels, and numerous park-like plazas.76

In a social sense, a typical campus also functions as a site for divergent social activities ranging from private gatherings to public assemblies and protests. These activities unfold within and across the spatially-variegated campus terrain. Open campus quads can enable lively campus

75Scholars from a variety of fields have written extensively about the various purposes, functions, values, and challenges associated with institutions of higher learning. See, e.g., Allan Bloom, The Closing of the American Mind (New York: Simon and Schuster, 1987); Clark Kerr, The Uses of the University, 5th ed. (Cambridge, MA: Harvard University Press, 2001); Derek Bok, Universities in the Marketplace: The Commercialization of Higher Education (Princeton: Princeton University Press, 2003); Harold Shapiro, A Larger Sense of Purpose: Higher Education and Society (Princeton: Princeton University Press, 2005); Andrew Delbanco, College: What It Was, Is, and Should Be (Princeton: Princeton University Press, 2012). I address questions about the institutional purposes, functions, and values of universities only insofar as they relate to the scope and focus of this dissertation, which probes a few social and spatial dimensions of university campuses in the U.S. that have received insufficient attention.

76Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge: Cambridge University Press, 2009), 265.

protests. Meeting rooms in student unions can give student groups somewhere to socialize and organize. Public campus spaces can invite constructive encounters between students, staff, and members of the public.

A typical campus contains not only myriad social activities but also numerous student groups that are often at the center of these activities. A single campus may host hundreds or even thousands of student groups with diverse memberships, purposes, and practices. These groups are distinct from the university in an organizational sense although they are often nested within the university campus in a spatial sense.

Universities are therefore complex in multiple senses. As institutions, they are organizationally complex. As places where many people often study, work, socialize, and reside, they are spatially and socially complex. While the organizational, spatial, and social aspects of universities are related in important ways, we should not lose sight of distinctions between the university institution, the campus, and the people connected to either or both. The physical features of the campus are distinct from the people and groups who use the campus. Campuses are locations, or places, whereas the people and groups who use campuses are not. Some of the people who use the campus—such as members of the public—may have no affiliation with the university. Moreover, some of the activities (e.g., athletic events, concerts) that routinely occur on campus might have little or nothing to do with a university’s core purposes.

In this and subsequent chapters, I focus on the spatial and social complexities of university campuses in the U.S. I consider how universities’ institutional purposes and commitments shape their governance of the campus environment beyond the classroom. To narrow the scope, I concentrate on student groups seeking to associate on campus and some pervasive, concrete campus issues that involve these groups. I approach these issues by looking

at how universities in the U.S. typically characterize, differentiate, and regulate the myriad student groups on their campuses. I pay close attention to common, already-existing practices of campus governance that affect student groups and their ability to exercise meaningful association on campus. I diagnose these practices and then present some prescriptions, which are specific to the observable spatial and associational complexities of many colleges and university campuses in the U.S.

The prescriptions I offer are encapsulated within what I term “capacious campus pluralism,” which is rooted in meaningful association for student groups and strengthened by neighborly norms and practices. Capacious campus pluralism implicates how universities structure their campuses and regulate the internal and external activities of student groups. I argue that universities should foster capacious pluralism on their campuses. While I do not claim that fostering capacious pluralism should be a core purpose of a university, I do claim that capacious pluralism is a normative good that is integral to some of the core purposes of universities. Specifically, capacious pluralism is integral to the knowledge-producing and democratic purposes of universities. If universities are committed to these purposes, they should subscribe to my account of capacious campus pluralism. I explain why in the following paragraphs.

While there is ongoing debate about the appropriate purposes of universities, a widespread conception is that universities should produce and disseminate knowledge. This conception has been unpacked and propounded by a handful of scholars in recent years. Keith

Whittington suggests that, while there are important and healthy differences among universities, they (should) share a core mission: “to produce and disseminate knowledge.”77 Whittington then

77Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (Princeton: Princeton University Press, 2018), 13.

argues that free speech is essential to this core mission. He writes: “In order to realize this core mission of the university of producing and disseminating knowledge, and the many subsidiary benefits that come from universities fulfilling that mission, a robust commitment to free speech on campus is essential.”78 Erwin Chemerinsky and Howard Gillman take a similar approach.

They write: “Freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education.”79 In their view, academic freedom encompasses

“the ability to express all ideas and viewpoints, no matter how offensive,” and all institutions of higher learning should protect academic freedom understood in this sense.80 These scholars thus draw important connections between a university’s core purpose and the environmental conditions that are integral to this purpose. If universities are committed to the production and dissemination of knowledge (as they should be), they should enable and protect freedom of expression as something integral to this commitment.

An additional conception of the purpose of the university accents its democratic role.81

As civic institutions that serve democratic purposes, universities should equip students with civic

78Whittington, Speak Freely, 19.

79Erwin Chemerinsky and Howard Gillman, Free Speech on Campus (New Haven: Yale University Press, 2017), x.

80Ibid., xi.

81Scholars have written extensively about the democratic purposes of higher education. For recent treatments, see, e.g., Peter Levine, “A Defense of Higher Education and Its Civic Mission,” The Journal of General Education 63, no. 1 (2014); Harry Boyte, ed., Democracy’s Education: Public Work, Citizenship, & the Future of Colleges and Universities (Nashville: Vanderbilt University Press, 2015). It is fairly common for colleges and universities in the U.S. to express institutional commitments to democratic purposes and goods. For instance, more than one thousand colleges and universities are currently affiliated with Campus Compact, which “advances the public purposes of colleges and universities by deepening their ability to improve community life and to educate students for civic and social responsibility” and “envisions colleges and universities as vital agents and architects of a diverse democracy, committed to educating students for responsible citizenship in ways that both deepen their education and improve

skills that are essential to democratic citizenship. Some of these skills include learning to live within pluralistic settings, negotiating differences intrinsic to cultural, social, political, and ideological plurality, and engaging constructively across these differences. Campuses are often remarkably pluralistic settings, and universities should cultivate norms and practices that help students navigate these settings.

Certain values are integral to the knowledge-producing and democratic purposes of universities. These values include diversity, freedom of association, and freedom of expression.

If a university is committed to the production and dissemination of knowledge, it should enable students to explore a diversity of ideas, share and cultivate these ideas with other students through voluntary association, and express these ideas through collective activities such as speech and assembly. It should also structure the campus environment so that the activities tied to diversity, freedom of association, and freedom of expression are not only possible but effective. Campuses should have ample spaces and venues for both individual and collective expressive activities. Similarly, if a university is committed to helping students negotiate the social, political, cultural, and ideological differences intrinsic to pluralistic settings, it should ensure that the campus setting is actually pluralistic. Learning to negotiate differences presupposes the existence of differences to negotiate. It also points to the need for common spaces on campus where students—and the groups they form—can engage with others who differ from them. Moreover, it requires norms and practices that make this engagement fruitful.

Capacious campus pluralism accounts for the knowledge-producing and democratic purposes of universities described above. The normative thrust of my argument is this: if universities subscribe to these purposes (as most do and should), then they should subscribe to the quality of community life.” See “Mission & Vision,” Campus Compact (blog), accessed April 30, 2019, https://compact.org/who-we-are/mission-and-vision/.

capacious campus pluralism. This does not mean, however, that capacious pluralism is valuable only because it corresponds with these purposes. In general, I argue that institutions of higher learning should foster capacious pluralism unless they have clear, compelling reasons to the contrary. The presumption should be in favor of capacious pluralism when it comes to how these institutions govern their campuses and the student groups situated therein. Admittedly, there are stark institutional differences among the thousands of colleges and universities in the U.S., and the account of pluralism I offer does not apply to all of them. It has little or no bearing on online universities, military academies, and “universities” like Hamburger University. But it should apply to many colleges and universities, particularly those that have physical campuses and espouse the purposes I have discussed.

The rest of this dissertation fleshes out my account of capacious campus pluralism, which is rooted in meaningful association for student groups. Student groups are the mainspring of capacious pluralism and its primary constituents. Their on-campus presence makes the campus environment pluralistic in significant ways. To a large extent, the particular beliefs, values, faiths, practices, purposes, affinities, and/or identities that make student groups distinctive entities are the basic ingredients of pluralism. The internal particularities of student groups are not antithetical to campus pluralism but essential to it.

An underlying motivation for the sustained focus on student groups is that common approaches to these groups are insufficient. Perhaps the most common approach begins with two notions: that the university environment is (or should be) a marketplace of ideas, and that freedom of speech is integral to the effective functioning of this marketplace. Student groups are important insofar as they enable students to collectively express viewpoints within this marketplace of ideas. In short, student groups are vehicles for the expression of ideas that

contribute to the university marketplace. They have instrumental rather than intrinsic value and are important mainly, or merely, because they serve students’ speech interests, which align with the basic purposes of universities.

While this approach has merit, it is insufficient for a few reasons. First, it minimizes the importance of voluntary association as something distinct from speech and makes voluntary association the underling of speech. Second, it relies upon a weak understanding of the dynamics and functions of voluntary associations. Even so-called expressive associations do not exist merely to express a viewpoint to the public. The members of these associations engage in a range of activities, some of which might be limited to members and have little to do with the public expression of a viewpoint. A single association often engages in a bundle of public and private activities and performs functions beyond the expression of a viewpoint. Third, while the

“marketplace of ideas” metaphor is important, it fails to capture the actual, observable sociospatial complexities of many university campuses. It offers a reductive conception of these campuses in both a descriptive and normative sense. In a descriptive sense, campus facilities, communicative channels, and grounds foster a range of important social activities (e.g., voluntary association) beyond the exchange of ideas. In a normative sense, campuses should foster these activities even though they may not fit neatly within the marketplace of ideas metaphor.

My approach to student groups incorporates some insights from this conventional approach but also addresses its deficiencies. I reject the notion that student groups are important only insofar as they function as vehicles for expression. While expression is often integral to meaningful association, meaningful association encompasses more than expression. Students have important reasons for practicing meaningful association (e.g., finding belonging and

purpose) that are distinct from their desire to express a viewpoint. I foreground the importance of meaningful association for student groups in order to countervail common tendencies to either subsume the associative interests of student groups under speech interests, misconstrue associative interests as speech interests, or ignore these associative interests altogether. At least in the U.S., the speech interests of students and student groups receive ample and ongoing attention while their associative interests often receive little or none.

I will argue that universities should enable meaningful association for a broad range of student groups, but not merely because these groups are instrumentally important to speech and the cultivation of a diverse marketplace of ideas. Student groups can and do perform functions

(e.g., the generation of ideas) that further a university’s purpose of generating and disseminating knowledge. However, their existence on campus should not hinge upon their performance of such functions. This is because student groups perform other important functions beyond the expression of ideas and are intrinsically valuable to students. Universities should foster healthy learning environments while respecting the distinctiveness and integrity of student groups and giving students room to pursue meaningful association on campus. They should also help students to negotiate inter-group differences and thereby learn to live within pluralistic social settings.

Chapter Overview

Student groups are a prominent feature on many university campuses in the U.S. The existence of such groups on campus should not come as a surprise. Students do not lose their associational interests and loyalties upon enrollment. They endeavor to discover, maintain, and cultivate wide-ranging associational attachments. Many students live on or near campus and seek to cultivate associational attachments where they live. Given that some universities can resemble

self-contained towns, with sometimes sizable geographic footprints, students pursue diverse associational attachments within the geographic space of these “towns.”82 As members of student groups associate freely on campus, they seek access to campus spaces where they can gather as well as engage with the broader campus community. Such access is essential if student groups are to exist and thrive on campus. But the dilemma that student groups face is that they do not own the campus spaces that make their group activities both possible and effective. They depend on universities to make their campuses accessible, and this dependence gives universities substantial power over student groups. Universities can regulate student groups by controlling access to the campus spaces upon which student groups depend.

In this chapter I foreground the tension between meaningful association for student groups and sociospatial regulations used by universities to govern their campuses and campus life. In the first section I argue that student groups have two basic needs in order to associate meaningfully on campus: (1) freedom to maintain their integrity by ensuring coherence between their purposes, values, and membership/leadership; and (2) access to appropriate campus spaces for their associational activities.

In the second section I express concerns about how universities disrupt meaningful association. Specifically, I illustrate how universities merge spatial and social governance by means of their registered student organization (RSO) programs. Universities can control student groups by: (1) restricting access to campus grounds, facilities, and communicative venues; (2) construing access to these campus spaces as a benefit; (3) making this benefit contingent on official recognition (i.e., registration); and (4) using the strings attached to recognition to reshape

82Zick, Speech Out of Doors, 265.

the internal characteristics of student groups.83 Universities can thus leverage their control over campus space to control student groups. Given that campus access hinges upon official recognition, student groups must choose to either maintain their integrity while losing access to the campus and campus community or lose their integrity while gaining access to the campus and campus community. Neither choice is satisfactory; both choices enfeeble meaningful association.

In the third section I argue that RSO programs are all the more problematic because they rest upon a questionable premise: that student groups are indistinguishable from their host university in an organizational sense. Consequently, RSO programs tend to undermine campus diversity. While universities often claim that their RSO programs further their institutional commitments to campus diversity, these programs diminish diversity by marginalizing student groups whose internal viewpoints, values, or practices are deemed incongruent with university norms. The visible effects of RSO programs thus contradict their stated purposes: student groups that are sources of genuine religious, political, and social diversity on campus are pushed off campus in the name of furthering diversity. Once we acknowledge that universities and student groups are distinct and dissimilar entities, however, it becomes apparent that universities can carry out their institutional commitments without subsuming student groups or exerting undue control over their internal affairs.

In the fourth section I prescribe capacious campus pluralism as an extension of the conception of meaningful association presented in section one and a partial corrective to the

83“Recognition” and “registration” are synonymous terms, which universities often use interchangeably. In the examples I discuss throughout this chapter, there is no practical difference between a registered student group and a recognized student group. Through their registered student organization programs, universities grant official recognition to some student groups while clarifying that such recognition does not indicate approval or sponsorship. To avoid confusion, I use the term “recognition” (and its variants) rather than “registration.”

problems identified in sections two and three. Capacious campus pluralism accentuates the associational texture of pluralism and enables a genuine plurality of student groups with differing norms and compositions to enjoy meaningful association on campus. Capacious campus pluralism requires spaces on campus where student groups can carry out their activities, engage with the campus community, and contribute to campus life. In general, universities can and should substantiate their institutional commitments by fostering capacious campus pluralism.

Two Components of Meaningful Association for Student Groups

As a preliminary matter, I suggest that students should have considerable freedom to pursue voluntary association regardless of their enrollment in a particular university.84 Their mixed, multiple, and often deep associational attachments do not dissipate upon enrollment.

Through voluntary association, students can pursue their distinctive visions of the good and cultivate the values, relationships, and practices integral to and expressive of these distinctive visions. They can find meaning and pursue their own definitions of community. They can also pursue common social, religious, or political causes and advance these causes through collective action. Moreover, through voluntary association, dissenting or marginalized students can band together and organize in the face of discrimination from the broader community.

84The main purpose of this chapter is not to offer reasons to support this claim. I presume that students have many compelling reasons for pursing voluntary association, including the reasons offered in this paragraph. Numerous scholars have offered more general and elaborate arguments in favor of voluntary association and freedom of association; many of these arguments are germane to student associations. See especially Gutmann, Freedom of Association. See also Robert M. Cover, “Nomos and Narrative,” Harvard Law Review 97 (1983); Dale Carpenter, “Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach,” Minnesota Law Review 85, no. 6 (2001); Johnson, “Expressive Association and Organizational Autonomy”; Vischer, “The Good, the Bad and the Ugly: Rethinking the Value of Associations”; Ashutosh Bhagwat, “Associational Speech,” The Yale Law Journal 120, no. 5 (2011); Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly; Abu El-Haj, “Friends, Associates, and Associations: Theoretically and Empirically Grounding the Freedom of Association”; Levy, Rationalism, Pluralism, and Freedom; Inazu, Confident Pluralism.

To enjoy meaningful association on campus, I argue that student associations have at least two basic interests. First, they have an interest in maintaining their integrity, namely by ensuring coherence between their internal purposes, values, and membership/leadership. Second, they have an interest in gaining access to appropriate campus spaces for their private and public associational activities. I elaborate on each of these components of meaningful association.

Maintaining Control of Internal Coherence and Integrity

Like other voluntary associations, many student associations have a strong interest in maintaining their associational integrity. They therefore have what Cécile Laborde identifies as coherence interests:

Coherence interests refer to associations’ ability to live by their expressed standards, purposes, and commitments. Individuals form associations to pursue the conceptions of the good they find valuable, and associations provide the structure within which this is possible. Coherence interests are interests that associations have in sustaining their integrity, that is, their ability to maintain a structure through which their members can pursue the purpose for which they have associated. To have a minimum associational integrity, groups must achieve some coherence between their purpose, structure, and ethos.85

According to Laborde, the “normal powers of associations” that flow from their coherence interests include the powers to “refuse or rescind association” and to enforce their ethos and standards on their members.86 Laborde identifies a group’s ability to control its membership criteria as the core feature of associational freedom.87 Groups need freedom to define their

85Cécile Laborde, Liberalism’s Religion (Cambridge, MA: Harvard University Press, 2017), 178.

86Ibid., 178–79.

87Ibid., 180. Several scholars have argued along similar lines. See, e.g., Nancy L. Rosenblum, “Compelled Association: Public Standing, Self-Respect, and the Dynamics of Exclusion,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 76 (equating “the core right of freedom of association” with “the ability to set restrictive membership criteria and to admit only wanted members.”). See also Justice William Brennan’s oft-cited remark in Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (“There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.”).

membership in accordance with their associational standards, purposes, and commitments.

Groups unable to regulate their membership and to exclude non-adherents will be unable to maintain their integrity. William Galston fittingly remarks that “associational integrity requires a broad though not unlimited right of groups to define their own membership, to exclude as well as include.”88

In a similar vein, Amy Gutmann draws a tight connection between the freedom to associate and the freedom to exclude. She reasons that, “The freedom to associate necessarily entails the freedom to exclude, and therefore limits our freedom of entry. If I can enter any association of my choice, then you have no freedom not to associate with me.”89 Relatedly, John

Inazu observes that the activity of excluding is integral to group definition.90 He remarks that,

“We exclude when we set formal or informal membership criteria that define the boundaries of our group.”91 In order for student groups to shape their purposes/boundaries and to maintain their overall integrity, they inevitably engage in exclusion.

Laborde argues that only voluntary, identificatory associations merit coherence interests.

Associations are voluntary when they “can be entered and left without excessive costs,” have

“reasonably formal structures of authority,” and are “formed around a specific doctrine or

88William Galston, The Practice of Liberal Pluralism (Cambridge: Cambridge University Press, 2005), 41.

89Amy Gutmann, “An Introductory Essay,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 10–11. See also Johnson, “Expressive Association and Organizational Autonomy,” 1665– 66 (“Voluntary associations are frequently characterized by their members' desire to advance common ideals or a shared worldview. If such groups are unable to limit their membership and leadership to those who are dedicated to the goals they wish to achieve—or, worse, if they must accept those who affirmatively disagree with those goals—it is no exaggeration to say that they will be unable to achieve them.”).

90Inazu, “Virtual Assembly,” 1097 (“We undertake at least four activities in defining the groups to which we belong: excluding, embracing, expelling, and establishing.”).

91Ibid.

purpose.”92 Associations are identificatory when they allow their members to “integrate core aspects of their personal beliefs and commitments with associational goals and values” and to

“pursue a valued conception of the good, the ideal, or purpose.”93

While some student associations may fail to meet the above criteria, many student associations are both voluntary and identificatory and therefore have strong coherence interests.

The student organization directory of a typical university includes numerous groups with defined commitments, values, purposes, and identities. For instance, the Women of Color Initiative at

UC Hastings College of the Law defines itself as “a safe and confidential space for self- identified women of color at UC Hastings College of Law” with the mission to “create a support system for self-identified women of color law students so that each woman of color thrives while at law school and thereafter.”94 The Jewish Women’s Group at Harvard University describes its mission as giving “the Jewish women of Harvard a space to explore what it means to be a Jew, a woman, and a Jewish woman in the 21st century.”95 Black Campus Ministries at San Diego State

University provides “a space for black students to explore the relevance of God as they pursue justice and reconciliation both within and outside of the black community on the campus of San

Diego State University (SDSU) by creating an environment that is supportive, but challenging for students of African descent on the campus of San Diego State University, organizing programs that enhance an individual’s spiritual growth, social support, and personal confidence, and exposing the students of African descent to role models that exemplify and glorify Christ in

92Laborde, Liberalism’s Religion, 181.

93Laborde, Liberalism’s Religion, 182, 184.

94“Women of Color Initiative at UC Hastings College of the Law (WOCI),” accessed August 13, 2018, http://www.uchastings.edu/student-life/organizations/WOC/index.php.

95“Harvard Hillel’s Affiliated Groups,” accessed August 13, 2018, https://hillel.harvard.edu/affiliated-groups.

their everyday lives.”96 These associations are representative of countless other student associations with defined purposes and values as well as tailored memberships.

Gaining Access to Campus Spaces for Associational Activities

Student groups need more than the ability to maintain their integrity if they are to enjoy meaningful association on campus. As discussed in the previous chapter, the activity of association almost always includes a spatial component. In this regard, student groups need access to appropriate campus spaces for their associational activities. They need spaces on campus where they can gather, socialize, organize, worship, recruit, and engage in a range of expressive activities. Accessible campus spaces make these activities possible and thus enable meaningful association.

Given their spatial features, campuses are often fertile sites for both the public and private activities of student groups. Open campus quads enable lively campus protests and public engagement. Meeting rooms in student unions give student groups places to socialize, organize, and hold events. Campus forums enable inter-group engagement and dialogue. Communicative channels such as campus bulletins, newspapers, and websites give student groups outlets through which they can express their viewpoints, advertise their events, and boost their campus presence.

Campus coffee shops and other dining areas provide comfortable spaces for informal, casual gatherings.

Student groups naturally seek access to these (and other) campus spaces so that they can thrive on campus and participate in campus life. Their viability as campus groups presupposes and hinges upon campus access. Such access is not an amenity but a necessity. The myriad

96“Recognized Student Organizations | San Diego State University,” accessed February 24, 2019, https://stuapp.sdsu.edu/rso/search/list.

campus spaces that make campus association possible are only beneficial if they are accessible.

Without access to these spaces, student groups face practical barriers to meaningful association even if they can maintain their integrity. Jeremy Waldron has aptly remarked that, “No one is free to perform an action unless there is somewhere he is free to perform it.”97

Adapting this insight to the campus setting, I suggest that the freedom for students to associate presupposes spaces where they are free to associate. These spaces should be on campus. While student groups can try to associate off-campus, they often face significant financial costs and other burdens in doing so. They can also find it more difficult to engage with the community located on campus. Without access to campus communicative channels, they might struggle to advertise their off-campus events and recruit new members. Without access to campus grounds, they may face impediments to reaching and engaging with other students in an effective manner.

The interest that student groups have in gaining campus access is heightened by the fact that the students who compose these groups often reside on or near campus. Students have a reasonable interest in pursuing group activities where they live and in cultivating social bonds with those who live nearby. On larger campuses in particular, students with limited mobility, resources, and/or time might struggle to cultivate meaningful associational attachments apart from those they discover and forge on-campus. Given that their place of residency is often on campus, students naturally try to pursue meaningful association on campus with other students who reside there.

But the possibility of this pursuit hinges on whether student groups can gain access to appropriate campus spaces for their public and private activities. The dilemma that student

97Jeremy Waldron, “Homelessness and the Issue of Freedom,” UCLA Law Review 39 (1991): 296.

groups face is that they do not own the campus spaces that make meaningful association possible. They depend on universities to make their campuses accessible, and this dependence gives universities substantial power over student groups. Universities can control student groups by controlling access to the campus spaces upon which student groups depend. I develop this concern in the next section.

How RSO Programs Disrupt Meaningful Association

Thus far I have stressed the importance and dynamics of meaningful association for student groups. But university campuses are not simply open spaces for student groups and their social activities. Universities are complex institutions with their own purposes and legal obligations. They rely on extensive regulations to govern the social and spatial dimensions of their campuses in accordance with their institutional purposes and obligations. In this section I focus on what I call sociospatial regulations and how they can harm student groups.98 The sociospatial regulations used by many universities govern the public activities of student groups as well as their private values, purposes, and compositions. Sociospatial regulations are distinct from other types of university regulations because they regulate student groups in part by regulating campus space; they thus merge social and spatial control. Some sociospatial regulations—such as zoning schemes—can restrict student groups by confining their expressive activities to designated areas on campus. Other sociospatial regulations—such as registered student organization programs—can press student groups into sacrificing their integrity in exchange for meaningful access to the campus and campus community.

98Given the focus on sociospatial campus governance, I do not discuss university restrictions on the associational freedom of students that do not entail such governance.

As discussed in chapter one, campus speech zones regulate student groups indirectly by confining their expressive activities to designated campus areas. Speech zones mostly burden student groups who rely on expressive activities to boost their public presence, engage with the broader campus community, and broadcast their respective viewpoints.99 But RSO programs regulate not only the expressive activities of student groups but also their internal compositions, purposes, and norms.100 In what follows I focus on RSO programs because of how they merge associational and spatial control in a complex manner. RSO programs have received insufficient attention despite their direct bearing on student groups’ ability to exist and thrive on campus.

A central component of RSO programs is university recognition, which doles out certain benefits to recognized groups and requires compliance with certain conditions in return. The benefits that flow from university recognition often include access to campus spaces, facilities, funding, student organization fairs, communicative venues, and student email lists. The conditions placed on recognition often include nondiscrimination policies or all-comers policies that student groups must comply with if they want university recognition. Nondiscrimination policies stipulate that recognized student groups may not exclude protected classes of students from membership and/or leadership positions. All-comers policies stipulate that recognized student groups must open their membership and leadership positions to all students regardless of status or belief. With some exceptions, universities generally deny any contractual ties with

99The efficacy of a student group’s expressive activities may be dampened because of the geographic constraints placed on these activities. Not only so, but student groups must often be officially recognized (i.e., registered) in order to exercise expressive liberties on campus. Recognition is administered through registered student organization programs that can place intrusive conditions on student groups. Timothy Zick notes that some campus policies even stipulate “that students may not engage in any type of expressive activity unless they are affiliated with a registered group.” Zick, Speech Out of Doors, 274.

100By composition I mean the people who make and lead a student group. The conditions attached to university recognition govern how recognized student groups structure their membership and leadership policies.

recognized student organizations, declare the organizational independence of these organizations, and clarify that recognition does not signal approval or sponsorship.101

While the particular conditions and benefits attached to university recognition may vary from one university to another, universities typically structure their RSO programs so that substantive campus access hinges on university recognition. Denial of university recognition thus translates into denial of substantive campus access. University recognition, in turn, comes with strings attached that can directly affect the integrity of groups seeking campus access. The regulatory force of RSO programs stems from the fact that university recognition governs the associational and spatial dimensions of the campus environment in tandem.

Examples: Student Groups Denied Recognition Due to Their Viewpoints

Over the past few decades, university practices of sociospatial governance—effected through RSO programs—have led to numerous disputes between student groups and universities.

Some disputes have revolved around the viewpoints of student groups: student groups have been denied university recognition because of their viewpoints. In 1969, Central Connecticut State

College (CCSC) denied recognition to a campus chapter of Students for a Democratic Society

(SDS) because of the group’s allegedly violent and disruptive philosophy.102 Upon denial of official university recognition, members of SDS were barred from advertising their activities in the student newspaper, using campus bulletin boards, and meeting in campus facilities. When

101See, e.g., UC Berkeley (“…RSOs are separate entities from the University, and RSO programs, events, and activities do not represent UC Berkeley.”). “Register Your Org – LEAD Center,” accessed August 30, 2018, http://lead.berkeley.edu/manage-your-organization/register-your-org/.

102Healy v. James, 408 U.S.

members of SDS tried to meet in the college’s student center, they were disbanded because non- recognized groups were not entitled to use campus facilities.103

A few decades ago, universities routinely denied recognition to gay student groups or student groups advocating gay rights and subsequently pushed them to the fringes of campus life.

They kept such groups at the margins—geographically and socially—not by banning them outright but simply by refusing to recognize them. Universities rationalized such denial of recognition by arguing that gay student groups were incongruent with institutional values and that denial of recognition did not harm the associational interests of these groups. In 1974,

Virginia Commonwealth University (VCU) denied recognition to Gay Alliance of Students

(GAS).104 As a result, GAS was cut off from campus facilities, communication venues and media, a student organization directory, funding, and some university services. VCU justified its denial of recognition to GAS on the grounds that recognition would “indicate VCU approval of

GAS's aims and objectives and thus serve as an encouragement to students to join who might otherwise be disinterested in becoming members.” 105 VCU also claimed that denial of recognition did not infringe on GAS’s associational rights.106 In 1976, Texas A&M University denied recognition to Gay Student Services (GSS) because the student group’s “goals and purposes were not consistent with the philosophy and goals” of Texas A&M University.107 The

103Healy v. James, 408 U.S. at 177.

104Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976).

105Ibid., 165. The appeals court found this line of reasoning unpersuasive, in part because “an administrator of VCU testiﬁed ﬂatly that ‘the registration and recognition of an organization does not, in any sense, carry with it approval or endorsement of the organization's aims.’” Ibid.

106VCU argued that “the members of GAS have suﬀered no infringement of their associational rights because all that has been withheld is VCU's oﬃcial seal of approval.” Ibid., 165.

107Gay Student Services v. Texas A&M University, 737 F.2d 1317 at 1328. GSS defined its goals and purposes as follows: “1) To provide a referral service for students desiring professional counseling including psychological, religious, medical, and legal fields; 2) To provide to the TAMU community information concerning the structures

university actively worked to prevent GSS from organizing or operating on campus—in part by denying it recognition and thus campus access.108 In the late 1970s, Georgetown University denied university recognition to two student groups— Gay People of Georgetown University and

Gay Rights Coalition—because the groups collided with Georgetown’s Catholic values.109

Georgetown University subsequently withheld equal campus access from these groups.

More recently, Wichita State University’s student government denied recognition to a campus chapter of Young Americans for Liberty (YAL) because of the group’s stance on free speech issues and because other chapters of YAL had invited controversial speakers to campus.110 In an ongoing spat, Fordham University has repeatedly refused to recognize a local chapter of Students for Justice in Palestine (SJP) because of the group’s purportedly “narrow” political viewpoint.111 SJP’s campus presence has been inhibited as a result.

Examples: Student Groups Denied Recognition Due to Their Membership/Leadership Criteria

Other disputes between universities and student groups have revolved around the membership and leadership criteria of student groups. Some student groups have been denied formal recognition—and thus substantive campus access—because their membership and leadership policies have violated the nondiscrimination policies routinely tied to university and realities of gay life; 3) To provide speakers to classes and organizations who wish to know more about gay lifestyles; 4) To provide a forum for the interchange of ideas and constructive solutions to gay people's problems.” Ibid., 1320.

108Ibid., 1322.

109Gay Rights Coalition v. Georgetown Univ., 536 A.2d.

110“VICTORY: Wichita State Student Court Recognizes Libertarian Group, Reverses Student Government Discrimination,” FIRE (blog), April 14, 2017, https://www.thefire.org/victory-wichita-state-student-court- recognizes-libertarian-group-reverses-student-government-discrimination/.

111“Fordham University”; Singal, “Fordham University Shows Why Liberals Should Fight for Campus Free Speech.”

recognition. In 1990, Syracuse University denied official recognition to the Student African-

American Society because the group restricted its membership to black students.112 The group was denied recognition despite concerns expressed by the group’s members that university- mandated open membership would “dilute, diminish or eradicate their presence on campus.”113

From 2003-2004, Louisiana State University denied recognition to the Muslim Student

Association because the student group refused to align its constitution with LSU’s nondiscrimination policy, which barred discrimination based on religion and sexual orientation among other things. The Muslim Student Association lost the ability to reserve and use campus facilities, raise funds, sponsor speakers, and to distribute literature on campus.114 LSU initially claimed that all student groups were being asked to comply with the policy, but the administration then shifted its position by claiming that the policy applied to most, but not all, student groups. Several Christian student groups, among others, were not asked to comply with the policy.115 LSU failed to explain why it applied its RSO policies selectively.

In 2004, CUNY College of Staten Island (CSI) denied official recognition to the Chi Iota

Colony fraternity because the all-male fraternity refused to become co-ed and thus violated CSI’s nondiscrimination policy barring gender discrimination.116 The college subsequently prohibited

112“Campus Life: Syracuse; Blacks-Only Group May Soon Forfeit Status and Money,” The New York Times, December 9, 1990. The group’s purpose was “to promote the culture and ethnicity as well as the experience of the African-American on campus” and to “work as a support group for African-Americans who have found institutional racism at the university.” Ibid. For a discussion of racially restrictive student groups at universities, see Wendy Hernandez, “The Constitutionality of Racially Restrictive Organizations within the University Setting,” Journal of College and University Law 21, no. 2 (1994).

113“Campus Life: Syracuse; Blacks-Only Group May Soon Forfeit Status and Money.”

114“Louisiana State University: Threat to Muslim Group’s Freedom of Association.”

115“FIRE Letter to LSU Interim Chancellor William Jenkins, November 11, 2004.”

116Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d 136 (2d. Cir. 2007).

the fraternity from meeting on campus or advertising its existence using campus media.117 In

2004-2005, San Diego State University (SDSU) denied recognition to three Christian student organizations—Every Nation Campus Ministries, Alpha Delta Chi, and Alpha Gamma Omega— because they required their members and officers “to conform to Christian beliefs and standards of conduct.”118 These requirements allegedly violated SDSU’s nondiscrimination policy, which prohibited discrimination based on religion and sexual orientation among other things.119 The de- recognized student organizations lost affordable access to campus facilities for their meetings as well as access to university funding and other benefits tied to recognition.120 SDSU failed to explain why it denied recognition to these groups but granted recognition to other noncompliant groups, including the Catholic Newman Center and the African Student Drama Association.121

In 2017, the University of Iowa de-recognized a previously-recognized student group,

Business Leaders in Christ (BLinC), because the group’s requirement that its leaders sign a

117Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d.

118The de-recognized student organizations “identify as their common goals: to promote Christian viewpoints; to spread the Christian message of salvation; to mentor their members in the Christian faith; and to role model Christian living. They represent that while each group pursues these goals in different ways, all believe that to achieve their objectives they must require their members and officers to conform to Christian beliefs and standards of conduct.” Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d 1075 (S.D. Cal. 2009) at 1085–1086. See also the subsequent case, Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011).

119Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d.

120“Particular benefits available only to officially-recognized student groups at SDSU include, among other things: rental of Aztec Center/Student Union facilities; informational tabling at Aztec Center; student organization weekly business meetings at Aztec Center; rental of instructional technology services equipment; placement of banners on Aztec Center walkways; posting of signs at Aztec Center walkway; posting of signs at Aztec Center food court; welcome week; explore SDSU; student organization funding; and a listing on the universities' official website.” Ibid., n. 11.

121The Catholic Newman Center required its officers to be “members, in good standing, with the Catholic Church.” The African Student Drama Association’s constitution limited leadership positions to students from Africa. See Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9986–87.

statement of faith allegedly violated the university’s Human Rights Policy.122 As a result, BLinC lost access to the range of benefits conditioned on recognition, including the use of campus spaces for meetings.123 Once BLinC initiated legal action, a federal judge found that the

University of Iowa had unequally enforced its human rights policy because it had recognized numerous other student organizations whose governing documents more clearly violated the policy.124 BLinC was the first and only student group to be de-recognized for allegedly violating the university’s Human Rights Policy.125 After this ruling, the university reviewed the governing documents of its recognized student organizations and found that 356 organizations were not in compliance with its human rights policy. As of July 2018, the university has de-recognized at least thirty-eight previously-recognized student organizations for failing to comply with the stipulated human rights policy. As at other universities, non-recognized student organizations at the University of Iowa find it more difficult to meet on campus and participate in campus life.

122BLinC’s Statement of Faith reads: “As I hold an Executive position with Business Leaders in Christ, I commit to live a life in which I turn from my sin and actively choose the biblical principles of Godly sanctification and righteousness. If and when I misstep, I will confess my struggle to God and to a member of the Business Leaders in Christ executive board acknowledging that I choose to receive grace and forgiveness from God and from other, and turn from my sin.” The University of Iowa alleged that requiring leaders to affirm this statement “would have the effect of disqualifying certain individuals from leadership positions based on sexual orientation or gender identity, both of which are protected classifications under . . . the University of Iowa Human Rights Policy.” See “Order on Plaintiff’s Motion for Preliminary Injunction” at 9, Business Leaders in Christ v. The University of Iowa, No. 3:17- cv-00080-SMR-SBJ (S.D. Iowa Eastern Div. Jan. 23, 2018). This is a pending legal case.

123Ibid., 3.

124Vanessa Miller, “Judge Sides with University of Iowa Christian Student Group Accused of Discrimination,” The Gazette, July 17, 2018, https://www.thegazette.com/subject/news/education/judge-sides-with-university-of-iowa- student-group-accused-of-discrimination-business-leaders-in-christ-blinc-20180717. For examples of student organizations that the University of Iowa registered in spite of their status or belief-based membership/leadership restrictions, see “Plaintiff’s Reply to Defendant’s Responses to Plaintiff’s Statement of Material Fact,” Business Leaders in Christ v. The University of Iowa, No. 3:17-cv-00080-SMR-SBJ (S.D. Iowa Eastern Div. Nov. 12, 2018).

125“Defendant’s Resistance to Plaintiff’s Motion for Summary Judgment” at 37, Business Leaders in Christ v. The University of Iowa, No. 3:17-cv-00080-SMR-SBJ (S.D. Iowa Eastern Div. Nov. 5, 2018).

Disputes involving the membership and leadership policies of student groups have intensified as a growing number of colleges and universities—including UC Hastings College of the Law, Bowdoin College, Vanderbilt University, and the twenty-three universities of the

California State University system—have attached an “all-comers” requirement to formal recognition.126 All-comers policies require recognized student groups to accept all students for membership and leadership positions regardless of status or belief.127 Groups unwilling to comply with the all-comers requirement are denied official recognition and thus equal campus access.

In 2004, UC Hastings College of the Law denied recognition to a campus chapter of the

Christian Legal Society (CLS) after the chapter refused to align its bylaws with Hastings’ all- comers policy.128 CLS subsequently lost the benefits tied to recognition, including use of school facilities, funds, and channels of communication, as well as Hastings’ name and logo.129

Members of the group were prevented from tabling on campus in spite of multiple requests to do so. Hastings did not explain why it denied recognition to CLS but granted recognition to other student groups with selective, exclusive membership and leadership requirements.130 For

126See “Executive Order 1068,” accessed August 13, 2018, https://www.calstate.edu/eo/EO-1068.html.

127For an incisive critique of all-comers policies, see John D. Inazu, “The Perverse Effects of the ‘All Comers’ Requirement,” Online Library of Law & Liberty, September 15, 2014, http://www.libertylawsite.org/2014/09/15/the-perverse-effects-of-the-all-comers-requirement/.

128Christian Legal Society v. Martinez, 561 U.S. 661 (U.S. 2010). The CLS bylaws “require members and officers to sign a ‘Statement of Faith’ and to conduct their lives in accord with prescribed principles. Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman. CLS interprets its bylaws to exclude from affiliation anyone who engages in ‘unrepentant homosexual conduct’ or holds religious convictions different from those in the Statement of Faith.” Ibid.

129Ibid., 670–671.

130There is also evidence that Hastings interpreted its RSO policies inconsistently as it sought to justify its decision to deny recognition to CLS. Hastings initially interpreted the disputed policy as a nondiscrimination policy. It then claimed that it interpreted the policy as an all-comers policy, only to shift its interpretation once again by reasoning that the policy allowed registered student groups to enforce “neutral and generally applicable membership requirements” as well as some conduct requirements. On this issue, see ibid., 713–714.

instance, Hastings recognized the student group La Raza although the group restricted voting membership to “students of La Raza background.”131 CLS was the only group to be denied recognition in all of Hastings’ history.132

At Vanderbilt University, at least ten de-recognized student groups have had to move most of their activities off-campus since the university rolled out its all-comers policy.133

Vanderbilt has applied its all-comers policy quite strictly in some instances. For example, the university took issue with the Christian Legal Society’s proposed constitution because the constitution stated that, “Each officer is expected to lead Bible studies, prayer and worship at

Chapter meetings as tasked by the President.”134 This requirement violated Vanderbilt’s policies because, according to university administrators, “it would seem to indicate that officers are expected to hold certain beliefs.”135

At the twenty-three campuses within the California State University (CSU) system, numerous previously-recognized student groups have been de-recognized and subsequently marginalized from campus life since CSU reinterpreted its nondiscrimination policy as an all- comers policy. Along with other student groups, CSU de-recognized campus chapters of

InterVarsity Christian Fellowship because the chapters required their leaders to adhere to

Christian beliefs and therefore violated CSU’s all-comers policy. Since being de-recognized,

131Christian Legal Society v. Martinez, 561 U.S. 661 at 712–713.

132Ibid., 710.

133Musarra, “Vanderbilt Faith Groups Follow Catholics off Campus.” See also Paulson, “Colleges and Evangelicals Collide on Bias Policy.”

134See “Written Statement of Kimberlee Wood Colby for the Judiciary Subcommittee on the Constitution and Civil Justice,” Attachment A, accessed February 21, 2019, https://www.thefire.org/written-statement-of-kimberlee-wood- colby-for-the-judiciary-subcommittee-on-the-constitution-and-civil-justice/.

135Ibid.

campus chapters of InterVarsity have lost access to on-campus meeting rooms as well as club fairs and other university functions.136

Diagnosis: Why RSO Programs Impose Unfair Burdens on Meaningful Association

The above disputes are not anomalies; similar disputes continue to play out at colleges and universities across the United States.137 They foreground the tension between the associative interests of student groups and the institutional policies of universities. The nondiscrimination or all-comers stipulations that universities routinely attach to recognition are especially antithetical to meaningful association when applied to a broad array of divergent student groups. In the face of a blanket prohibition against religious discrimination, for instance, a religious student group could not require that its members and leaders subscribe to the religious views, values, and conduct requirements that define the group. The Secular Student Alliance—a national organization “dedicated to atheist, humanist, and other non-theist students”—could not limit its membership or leadership positions to atheist, humanist, or non-theist students without running the risk of being charged with religious discrimination.138 Even requiring members or leaders to subscribe to atheist, humanist, or non-theist views could contravene university nondiscrimination policies and thereby trigger de-recognition. For student groups with well-defined religious purposes and identities, university policies barring religious discrimination can pose serious challenges to their integrity and even existence. As Cécile Laborde remarks, “A religious

136“InterVarsity, College Christian Group, ‘De-Recognized’ At California State University Campuses.”

137For surveys of additional disputes, see Mark D. Bauer, “Freedom of Association for College Fraternities after Christian Legal Society and Citizens United,” Journal of College and University Law 39, no. 2 (2013); William Kaplin and Barbara A. Lee, The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making, 5th ed., 2 vols. (San Francisco: Jossey-Bass, 2013).

138“Secular Student Alliance: About Us,” Secular Student Alliance (blog), accessed August 13, 2018, https://secularstudents.org/about-us/.

association that is unable to insist on adherence to its own religious tenets as a condition of membership is unable to be a religious association.”139 Similarly, Christopher Lund reasons that,

“Organizations founded on shared religious principles cannot really exist unless they actually share religious principles.”140

Student groups organized around race or gender face similar challenges in light of nondiscrimination policies barring student groups from race or gender-based discrimination.

Black Campus Ministries at SDSU—whose mission specifies that it is for black students of

African descent—could not easily align its membership and leadership criteria to fit this mission without engaging in race-based discrimination. The Student African-American Society at

Syracuse could not exclude non-black students without engaging in racial discrimination and losing recognition as a result. At some universities, the Society of Women Engineers could not limit its membership and leadership to women without engaging in gender-based discrimination.

All-comers policies present greater challenges for student groups because the inclusionary logic of these policies inverts the exclusionary logic of voluntary association. The former logic requires that student groups open their membership and leadership to all students regardless of status or belief; the latter logic requires that student groups choose members and leaders who share the defining beliefs and values of the group—or are at least sympathetic to these beliefs and values. As written, all-comers policies would require an orthodox Jewish student group to welcome avowed anti-Semites, a feminist student group to welcome misogynists, and a black student group to welcome white supremacists. A student group could

139Laborde, Liberalism’s Religion, 179.

140Christopher C. Lund, “In Defense of the Ministerial Exception,” North Carolina Law Review 90, no. 1 (2011): 23.

not even require that its leaders share the group’s defining beliefs or viewpoints without violating the all-comers stipulation. If student groups were to embrace and internalize the inclusionary logic underwriting all-comers policies, they would do so at the risk of compromising their associational integrity. Amy Gutmann rightly argues that, “A requirement of open membership would undermine the value of many secondary associations and destroy any meaningful sense of freedom of association as it applies to secondary associations.”141

Gutmann’s argument is germane to many student groups. By necessity, a student group seeking to thrive on campus as a viable, defined entity will try to maintain coherence between its purposes and its membership/leadership. It would be unusual and self-destructive for a group not to maintain such coherence. But universities often ignore this coherence interest and assume that every student group should not only embrace every belief and person but also reshape their membership/leadership criteria to reflect this embracive posture. This is a burdensome expectation to impose on student groups. Not only so, but universities are often quick to interpret formal noncompliance with the conditions placed on recognition as proof of wrongful discrimination, which is then punished by denial of recognition. In some instances, however, a student group’s exclusionary practices can protect its members from wrongful discrimination.142

141Gutmann, “An Introductory Essay,” 10–11. See also Rosenblum, “Compelled Association: Public Standing, Self- Respect, and the Dynamics of Exclusion,” 76 (“We can imagine open organizations with which anyone can affiliate, but they have the character of public accommodations rather than voluntary associations. If associations cannot limit eligibility and control admission, their particular objects and expressive aspects will be inhibited, diluted, or subverted.”).

142On this point, see Dale Carpenter, “Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach,” Minnesota Law Review 85, no. 6 (2001): 1550 (“Gay organizations have historically discriminated in membership based on sexual orientation. From the beginnings of the gay civil rights movement, gay organizations have relied on exclusively gay environments in which to feel safe, to build relationships, and to develop a political strategy.”). See also Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 10004 (Ripple, J., concurring) (“Clubs whose memberships are defined by issues involving ‘protected’ categories, however, are required to welcome into their ranks and leadership those who do not share the group’s perspective: Homosexual students, who have suffered discrimination or ostracism, may not both limit their membership to homosexuals and enjoy the benefits of official recognition. The [SDSU nondiscrimination] policy dilutes the ability of students who fall into ‘protected’ categories to band together for mutual support and discourse.”).

The disputes discussed earlier also illustrate how universities merge spatial and social governance by means of their RSO programs. Universities can control student groups by: (1) restricting access to campus grounds, facilities, and communicative venues; (2) construing access to these campus spaces as a benefit; (3) making this benefit contingent on recognition; and (4) using the strings attached to recognition to reshape the internal characteristics of student groups.

Universities can unfairly leverage their control over campus space and resources to co-opt, subordinate, and re-engineer student groups. Through tactical uses of their RSO programs, universities can also target, suppress, and marginalize dissident or disfavored groups.143 Such tactical uses often reflect administrators’ disapproval of certain student groups, although this disapproval may be hidden beneath a veneer of neutrality and fairness.144

Given that campus access hinges upon official recognition, student groups must choose between: (1) maintaining their integrity while losing access to the campus and campus community and (2) losing their integrity while gaining access to the campus and campus community.145 Neither choice is satisfactory. Both choices impose substantial burdens on meaningful association. The burdens imposed on student groups become heavier as universities attach more intrusive conditions (e.g., all-comers policies) to recognition and render their

143I am not claiming that universities always use their RSO programs for these purposes. But they can easily do so because they often own the campus space and resources on which student groups depend and can leverage this ownership to control student groups.

144The selective enforcement of RSO policies may indicate a university’s attempt to sanction some noncompliant student groups while exempting other noncompliant groups. As discussed earlier, there is evidence that institutions including Louisiana State University, UC Hastings College of the Law, San Diego State University, and the University of Iowa have enforced their RSO policies selectively rather than as-written. My position is that RSO policies are problematic as-written and more problematic when they are applied selectively. The onus should be on universities to offer clear, compelling justifications for their written RSO policies and for the practical enforcement of these policies.

145Some student groups might manage to secure official recognition and still maintain their integrity. But this possibility does not excuse the burdens that RSO programs impose on student groups. RSO policies are problematic even though some student groups begrudgingly go along with them or find creative ways around them.

campuses less accessible to unrecognized student groups through the use of labyrinthine campus regulations, including what Timothy Zick refers to as “campus order management systems.”146

Student groups unwilling or unable to satisfy the conditions tied to recognition thus face physical exclusion from campus and social exclusion from campus life.

How RSO Programs Rely Upon a Problematic Premise and Diminish Campus Diversity

The application of nondiscrimination or all-comers requirements to registered student groups is all the more problematic because it rests on a questionable premise: that registered student groups are indistinguishable from their host university on an organizational level. This premise is problematic because it conflates what are distinct, dissimilar entities and thus obscures important differences between student groups and their host university. This premise is also dubious because it contradicts clear university statements disavowing affiliation with—and sponsorship of—the student groups they recognize. Moreover, when universities de-recognize and marginalize student groups on the basis of this premise, they diminish campus diversity and thus betray their own institutional commitments. While universities claim that their RSO programs further their institutional commitments to campus diversity, these programs diminish diversity by marginalizing student groups whose internal viewpoints, values, or practices are deemed incongruent with university norms. The visible effects of RSO programs thus contradict their stated purposes: student groups that are sources of genuine religious, political, and social diversity on campus are pushed off campus in the name of furthering campus diversity. This perplexing phenomenon is the fruit of a conflation of student groups with universities.

146Zick, Speech Out of Doors, 273 (“The campus order management system has been implemented at many places of higher learning. An increasingly complex and heavy-handed bureaucracy, including permitting schemes, advance notice requirements, and a host of other prerequisites for expressive activity generally restricts public expression and contention on the nation’s campuses.”).

Universities sometimes manifest a Janus-faced posture toward the student groups they recognize. They deny affiliation with these groups but simultaneously impose regulations that presume not only affiliation but organizational and normative identity between recognized groups and their host institution. The University of Maryland, for instance, specifies that registered student organizations are not approved or sponsored by the university and that these organizations share no contractual ties with the university.147 However, it simultaneously folds these organizations into the university’s “programs, activities, and facilities.”148 Subsequently, it applies the policies governing its programs, activities, and facilities to registered student groups and thus diminishes the organizational independence and integrity of these groups.

This institutional posture toward registered student groups is common: universities routinely apply their institutional nondiscrimination policies to registered student groups that are supposedly independent of their institutions. This practice is the main cause of the problems identified in the previous section. It wrongly assumes similarity between what are distinct, dissimilar organizations. It also flies in the face of clear university statements disavowing affiliation with the groups they recognize. If registered student groups are independent of their host institution, and if recognition does not signal approval or sponsorship, it is not at all clear why student groups should be bound by the same policies that bind the university. Policies aimed at thwarting discrimination and increasing educational access make sense when applied to

147“Guidelines to Become a Registered Organization,” accessed August 30, 2018, http://thestamp.umd.edu/student_org_resource_center_sorc/organization_registration_information/guidelines_to_be come_a_registered_organization.

148Ibid.

universities as institutions of higher education, but the same policies make less sense when applied to registered student groups at universities.149

Organizational over-identification between a university and registered student groups often feeds into normative over-identification. A university rationalizes its intrusions on the internal practices of registered student groups by pointing to its own institutional norms. The assumption runs like this: as an institution, a university is committed to a particular norm.

Therefore, all registered student groups must internalize this norm, especially in their membership/leadership criteria, or face de-recognition. But this assumption lacks force if we acknowledge (as many universities do) that even registered student groups are different entities than the university institution. Given this organizational dissimilarity, it does not follow that the norms and commitments governing the university institution should govern the internal practices of student groups in the same way. Once we push against the assumption of organizational identity, the assumption of normative identity becomes less compelling.

Not only is the identification of student groups with their host institution conceptually flawed, but its practical effects tend to undercut university commitments to campus diversity.

Rather than modeling their institutional commitments in their treatment of student groups, universities impose these commitments on student groups. They then de-recognize and marginalize noncompliant groups. Student groups thus become casualties rather than beneficiaries of the institutional commitments purportedly governing their host institution. For instance, rather than showing respect for diverse student groups on their campuses, universities

149See Michael Paulsen, “A Funny Thing Happened on the Way to the Limited Public Forum: Unconstitutional Conditions on Equal Access for Religious Speakers and Groups,” UC Davis Law Review 29, no. 3 (1996): 672 (arguing that it is a stretch to apply university nondiscrimination policies to student groups).

sometimes de-recognize and marginalize student groups in the name of their institutional commitments to diversity. This is a loss, not a win, for campus diversity.

Consider the following example. CUNY College of Staten Island justified its de- recognition of Chi Iota Colony, a male-only fraternity, because the fraternity’s gender-exclusive practices stood at odds with the College’s commitment to diversity and pluralism.150 The college prefaced the nondiscrimination policy it imposed on registered student groups with the following: “The College of Staten Island is committed to a campus environment that reflects and respects our pluralistic and culturally diverse society.”151 This is a commendable commitment for a college or university.152 But CSI then interpreted this commitment in a questionable manner by compelling diversity and pluralism within each registered student organization and de- recognizing a student organization unwilling to accept the college’s interpretation of its commitment. CSI apparently assumed that its commitment to a pluralistic and diverse campus environment justified its intrusion on the internal practices of student groups. But this assumption is a stretch. In an organizational sense, student groups at CSI are distinct from CSI as an institution. Also, while student groups at CSI are part of the campus environment both socially and spatially, the internal composition of a student group is distinct from the campus environment as a whole. CSI blurred these distinctions by regulating the internal affairs of student groups in the name of cultivating a pluralistic, diverse campus environment. Moreover,

150Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d.

151“Club Policies | Clubs & Organizations | CSI CUNY Website,” accessed August 13, 2018, https://www.csi.cuny.edu/campus-life/student-involvement/clubs-organizations/club-policies.

152CSI’s Pluralism and Diversity Program defines pluralism as follows: “Pluralism refers to a social or political environment in which numerous distinct ethnic, religious, or cultural groups coexist (as in one neighborhood, city, nation, institution, or school).” “Pluralism & Diversity | Diversity @ CSI | CSI CUNY Website,” accessed August 13, 2018, https://www.csi.cuny.edu/about-csi/diversity-csi/pluralism-diversity. Notice the clear reference to groups, which indicates that pluralism is (properly) construed as an intergroup phenomenon.

CSI’s de-recognition of Chi Iota Colony cut against its own commitment to fostering a pluralistic and culturally diverse campus environment by marginalizing the fraternity from campus and campus life. Pushing a group off campus is an odd way to show respect for our “pluralistic and culturally diverse society.”

Universities frequently express commitments to campus diversity, and their RSO programs purportedly aim at furthering these commitments. But, as shown in the previous section, RSO programs often function as exclusionary devices that marginalize student groups whose viewpoints, values, or internal practices are deemed incongruent with institutional norms.

Contrary to this pattern, we should expect universities to model their institutional commitments in their treatment of student groups. They should substantiate their commitment to diversity, for instance, by respecting the diverse student groups found on their campuses and enabling these groups to participate in campus life.

The thrust of the argument presented in this section has not been to deny relationship between universities and student groups. Student groups are related to universities in the sense that they depend on campus space, consist primarily of students, and seek to participate in campus life. Rather, the thrust of the argument has been to challenge the (assumed) identification of what are distinct, dissimilar entities and to accent the repercussions of this identification. Once we differentiate universities from student groups on an organizational level, it becomes evident that universities can cultivate inclusive campuses without compelling student groups to mirror the same kind of inclusivity in their membership criteria. They can make their campus grounds and facilities accessible without presuming that student groups should be accessible in the same way. They can cultivate diverse student bodies without expecting each student group, in miniature, to mirror this same kind of diversity in its internal composition. They can also prohibit

discrimination within their institutional operations (e.g., admissions and employment) without imposing an identical prohibition on all registered student groups. Overall, universities can and should fulfill their educative purposes without subsuming student groups or exerting undue control over their internal affairs.

To this end, universities should draw clear demarcations between their institutional affairs and those of student groups.153 Organizational demarcations are important not only for student groups but also for universities. A university needs to be able to distinguish and dissociate its own institutional commitments and values from those held by the numerous, divergent student groups on its campus. It needs sufficient institutional autonomy to define its educational mission and to function effectively as a place of higher learning. Student groups, meanwhile, need room to define and live out their respective purposes without being overdetermined by their host university. Admittedly, distinguishing student groups from their host university can be challenging because student groups use campus space and resources and are nested within the campus environment. But doing so is crucial if we are to take seriously both the associative interests of student groups and the institutional integrity of the university that recognizes them.

153Joan Howarth also stresses the importance of distinguishing student organizations from universities, although she frames this distinction in terms of speech and expressive identity. See Joan Howarth, “Teaching Freedom: Exclusionary Rights of Student Groups,” UC Davis Law Review 42, no. 3 (2009): 926 (“Conceptualizing the expressive identity of the institution as separate from the expressive identity of any individual student organization is an important step for both First Amendment and equality goals. Being more honest about the distinction between the speech of the school and the speech of student organizations is a better way to educate students about freedom. When the government sets up a limited public forum, the speech within the forum is private speech, not government speech. Conceptualizing student organizations as branches of the school and thereby bound by the school's nondiscrimination policy serves up a watered-down version of free expression and equality.”).

Remediation: Envisaging Capacious Campus Pluralism

In this section I prescribe capacious campus pluralism as an extension of the conception of meaningful association presented in section one and a partial corrective to the problems identified in sections two and three. A key aspiration of capacious campus pluralism is to enable a diversity of student groups with differing norms and compositions to enjoy meaningful association on campus. While there are different conceptions of pluralism, the conception presented here emphasizes the associational texture of pluralism and characterizes freedom of association and voluntary association(s) as integral to pluralism.154 This conception thus follows from—and builds upon—the defense of meaningful association for student groups presented earlier in the chapter.155 Michael McConnell ties freedom of association, group difference, and pluralism together in a helpful way when he remarks that, “Genuine pluralism requires group difference, and maintenance of group difference requires that groups have the freedom to

154Other scholars have drawn similar connections between voluntary associations, substantial freedom for such associations, and pluralism. See, e.g., Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America, 10, 362 (remarking that “associational pluralism is inescapable so long as there is personal freedom” and that the “exuberant life” of pluralism issues from the “variety of association life”); Michael W. McConnell, “The New Establishmentarianism,” Chicago-Kent Law Review 75, no. 2 (2000); William Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002), 119 (arguing for “maximum feasible accommodation of diverse legitimate ways of life” as an integral part of liberal pluralism); Victor Muniz-Fraticelli, The Structure of Pluralism: On the Authority of Associations (Oxford: Oxford University Press, 2014), 38–39 (remarking that pluralism “is concerned with the authority of associations, with the corporate agency and self-direction of groups, and with the legal orders that they generate, sustain, and enforce.”); Levy, Rationalism, Pluralism, and Freedom, 27 (interpreting pluralism as “allowing a plurality of associations…to follow their own various norms.”); Inazu, Confident Pluralism, 35 (identifying “meaningful protections for voluntary groups” as an essential feature of “confident pluralism”). I share many of these intuitions about voluntary association, associational freedom, and pluralism, but I focus on associational pluralism within the campus context and suggest that campus pluralism should restrict university interference with the internal norms and structures of student associations. In contrast, Jacob Levy interprets pluralism to mean that the university—as a “complex association” with internal associational spheres—should have substantial power to govern campus groups within its domain. See Levy, Rationalism, Pluralism, and Freedom, 269. My concern is that Levy’s defense of the institutional autonomy of universities comes at the expense of meaningful association for student groups.

155A commitment to campus pluralism begs attention to how the student groups who put the “plural” in pluralism can practically maintain their existence and integrity through meaningful association. A commitment to meaningful association for diverse student groups feeds into a preference for pluralism. Pluralism opens the possibility for different student groups to practice meaningful association without being subordinated to any singular vision of the good.

exclude, as well as the freedom to dissent.”156 In the campus context, I suggest that student groups are wellsprings of distinct viewpoints, practices, and visions of the good that are constitutive of campus pluralism. Campus pluralism is rooted in the on-campus presence of different student groups that reflect wide-ranging political, social, and religious affinities and differences among students. Capacious campus pluralism ensures that a genuine diversity of student groups can maintain their respective differences and find room on campus and within the campus community.

The understanding of pluralism presented here encompasses two basic aspects. The first aspect calls attention to the particularities that distinguish one student group from another. It identifies the distinctive norms, viewpoints, and practices of student groups as key elements of plurality. The respective particularities of student groups put the “plural” in “pluralism.”

Religious pluralism on campus, for instance, stems from the presence of different religious student groups on campus with disparate beliefs, frames of reference, and practices.157 If all student groups were internally similar and homogenous, there would be no genuine plurality and therefore no associational pluralism. Associational plurality is a prerequisite of associational pluralism.

The second aspect treats constructive engagement between groups as essential to a healthy pluralism. Pluralism does not preclude cooperation or interaction among distinct groups.

Rather, it encourages inter-group cooperation and interaction without neglecting the particularities of the groups involved. Pluralism thus presupposes associational plurality on

156McConnell, “The New Establishmentarianism,” 466.

157Other scholars have expressed arguments with a similar logic. See, e.g., Levy, Rationalism, Pluralism, and Freedom, 40 (“Religious diversity comes from having different religious denominations, not from trying to make each sect include members of all beliefs.”).

campus but also encourages some degree of mutuality and interactivity in the midst of this plurality. The purpose of fostering mutuality and interactivity, however, is not to achieve ideological consensus between groups, render each group internally similar, or paper over real differences between groups.

Understood in this sense, pluralism does not require normative or organizational identification between student groups and their host university. Pluralism dissipates when student groups are conflated with their host university or expected to mirror its institutional purposes, functions, or commitments. Pluralism presupposes real differences among student groups and between student groups and universities. Without valorizing “difference,” pluralism accents the different norms, compositions, and practices that distinguish one student group from another and—to a large extent—constitute student groups as defined, bounded, and meaningful entities.

The word capacious in the phrase capacious campus pluralism calls attention to the spatial dimensions of campus pluralism.158 Capacious campus pluralism implicates how campus spaces should be structured and governed. It requires spaces on campus where student groups can carry out their activities, engage with the campus community, and contribute to campus life.

Some campus spaces, such as meeting rooms, should enable the private activities of student groups. Other campus spaces, such as commons areas, should enable the public activities of student groups and facilitate their engagement with the broader community. Campuses should thus provide the spaces that make campus pluralism possible. This does not mean that each student group needs a designated space on campus. Rather, it means that student groups should have easy, affordable access to meeting rooms and other spaces amenable to their activities.

158William Galston connects pluralism and social space when he remarks that, “In a liberal pluralist regime, a key end is the creation of social space within which individuals and groups can freely pursue their distinctive visions of what gives meaning and worth to human existence.” Galston, The Practice of Liberal Pluralism, 3. In the campus context, I argue that student associations need social space where they can “pursue their distinctive visions” through meaningful association.

Universities should make their campuses accessible to a plurality of student groups in order to foster campus pluralism on the ground. Universities should also give student groups room (in a figurative sense) to maintain coherence between their purposes, values, and membership/leadership. When universities unduly disrupt the coherence interests of student groups, they dilute or destroy the particularities that are the basic ingredients of campus pluralism. In general, universities should adopt a liberal posture toward student groups so that a heterogenous mix of student groups can find room on campus and within the campus community.

Capacious campus pluralism thus calls for universities to revise their practices of sociospatial governance—and to rethink the normative underpinnings of these practices—so that pluralism is a concrete reality on campus and not just an aspiration. Universities committed to capacious campus pluralism should develop modes of campus governance sensitive to the particularities that not only differentiate student groups from one another and from the university but also make student groups viable sources of the plurality requisite to pluralism. Maintaining these particularities requires that student groups have reasonable freedom to shape their respective purposes and to align their membership/leadership requirements with these purposes.

Universities need not endorse or celebrate the purposes and practices of student groups, but their treatment of these groups should reflect an institutional commitment to capacious campus pluralism.

Moreover, in their governance of student groups, universities should not show preferential treatment toward purportedly oppressed (i.e., historically marginalized) student groups. Rather, they should treat all student groups in an even-handed manner without trying to distinguish between oppressed and non-oppressed groups. This means, for instance, that

universities should not exempt minority student groups from the RSO policies that they apply to other student groups. But they should revise their RSO policies so that a broad array of student groups (regardless of their minority or non-minority status) can pursue meaningful association and contribute to campus pluralism.

The controversy referenced earlier involving Business Leaders in Christ at the University of Iowa exemplifies preferential treatment. In explaining why it de-recognized Business Leaders in Christ but recognized other student groups who more clearly violated the University of Iowa’s

Human Rights Policy, the university claimed that “multiple [student] groups provide safe spaces for minorities which have historically been the victims of discrimination.” 159 At the discretion of university administrators, the university thus exempted some student groups from its Human

Rights Policy because of their alleged status as safe spaces for minorities.

While such preferential treatment may be well-intended, it is inadvisable for at least a few reasons. First, in practice, it is difficult to assess which student groups are oppressed and therefore worthy of special treatment. In part, this is because oppression is contextual: which student groups are oppressed will vary from one campus to another and will also shift as local campus cultures evolve. An LGBTQ+ group is likely to face significant oppression at Liberty

University, but the same group is unlikely to face even mild oppression at UC Hastings College of the Law. By contrast, Christian Legal Society probably faces more oppression (or at least opposition) at UC Hastings College of the Law than it does at Liberty University. An additional complication is that feelings of being oppressed can be deeply subjective and therefore difficult to evaluate in a judicious manner. A student group’s feeling of being oppressed is not necessarily reliable evidence that it is, in fact, an oppressed group. Second, and relatedly, preferential

159See “Defendant’s Resistance to Plaintiff’s Motion for Summary Judgment” at 18, Business Leaders in Christ v. The University of Iowa, No. 3:17-cv-00080-SMR-SBJ (S.D. Iowa Eastern Div. Nov. 5, 2018).

treatment can easily perpetuate an unhealthy victimhood culture in which student groups clamor to show they are victims who deserve preferential treatment from the university.160 Third, preferential treatment tends to oppress student groups that do not receive preferential treatment.

Preferential treatment therefore exacerbates problems related to oppression rather than resolving them. None of this is to deny that some student groups do face oppression, but it is to suggest that universities committed to capacious campus pluralism need not give special treatment to purportedly oppressed student groups.

Conclusion

A few acknowledgments are in order. First, in discussing the importance and dynamics of meaningful campus association, I have not intimated that every student group deserves a place on campus. Student groups intent on commandeering the campus, disrupting core campus operations, or antagonizing other members of the campus community might for good reason be constrained, chastened, or excluded from campus life. But none of the student groups discussed in this chapter were de-recognized for these reasons. Generally speaking, the recognition policies

I have criticized do a poor job of differentiating between student groups that deserve a place on campus and those that might not. They are hyper-attentive to the formal membership/leadership criteria of student groups but less attentive to the purposes, orientation, and actual behavior of such groups.161 For instance, under many of the recognition regimes I have discussed, a white supremacist student group could easily secure recognition as long as it aligned its formal

160For a recent treatment of victimhood culture at universities in the U.S., see Bradley Campbell and Jason Manning, The Rise of Victimhood Culture: Microaggressions, Safe Spaces, and the New Culture Wars (Cham, CH: Palgrave Macmillan, 2018).

161By “orientation,” I mean how a group orients itself toward those outside the group. In general, student groups should be encouraged to engage constructively with those beyond the group, in part by displaying communicative intent and a commitment to the campus as a shared place.

membership/leadership criteria with nondiscrimination or all-comers requirements. Meanwhile, less malignant student groups who simply want their members and leaders to share their defining beliefs face de-recognition, marginalization, and stigma. In subsequent chapters I offer an alternative way of differentiating student groups and identify some appropriate limits to meaningful association.

Second, I have not suggested that we should ignore a university’s defining commitments but rather that we should examine these commitments more closely. Specifically, we should consider how a university’s governance of its campus and of campus groups meshes with its own institutional commitments. In some instances, we might find a relatively clear correspondence between a university’s institutional commitments and its practices of campus governance. For instance, Georgetown University clarifies that its student organization standards are shaped by its commitment to community and to its founding moral vision as a Catholic, Jesuit university.162

Student organizations are expected to share this moral vision and to enrich the community oriented around this vision. While Georgetown states that the freedom to associate is an important feature of its campus community, it itemizes seven types of groups that are specifically prohibited. These include groups that are “inconsistent with acceptable conduct at an American university committed to the Roman Catholic moral tradition.”163 In light of these defined commitments and standards, Georgetown has refused to recognize the pro-choice student group,

H*yas for Choice, because the purposes of the group conflict with Catholic moral teaching. In this instance, a case can be made that Georgetown’s denial of recognition is consonant with its stated institutional commitments. We might disapprove of these commitments or take issue with

162“Student Organization Standards,” Georgetown University Division of Student Affairs, accessed August 30, 2018, https://studentaffairs.georgetown.edu/policies/student-organizations/standards.

163Ibid.

how Georgetown treats groups at odds with these commitments. But we can at least appreciate the clarity of Georgetown’s commitments and its careful articulation of what these commitments mean for student groups and their freedom of association on its campus.

In other instances, however, we might fault a university for employing modes of sociospatial governance that betray its own commitments. We might also worry about a university pushing its commitments so forcefully that it overdetermines the campus environment and leaves no room for dissenting groups or voices. Overall, while it is unsurprising that a university’s commitments will shape how it governs its campus and the groups situated therein, we might still question these commitments or how they are interpreted and acted upon.

Third, one risk of theorizing about universities is that we might lose sight of significant differences between one university and another. Empirically, universities differ in terms of their size, history, geographic footprint, public or private status, curricular and extra-curricular philosophies and programs, legal obligations, and so forth.164 We can identify significant differences between Harvard University and the University of Phoenix Online, for instance, or between Oberlin College and Bob Jones University. Some universities are committed to institutional neutrality, while others are not. Some universities espouse a defined worldview and expect students and staff to embrace this worldview, while others do not. Admittedly, there are sometimes stark dissimilarities between institutions of higher learning. However, we can still detect similar patterns of sociospatial governance on numerous university campuses. We can also acknowledge that, in general, students retain an interest in meaningful campus association, although the expectations of realizing this interest may vary from one campus to another.

164There are various approaches to differentiating and categorizing institutions of higher education. For one such approach, see Kelly Sarabyn, “Free Speech at Private Universities,” Journal of Law and Education 39, no. 2 (2010) (proposing three categories: liberal arts and research universities; quasi-ideological and technical universities; and ideological and military academies).

Finally, some of the campus issues discussed in this chapter have been the subject of sustained legal analysis, especially in the area of First Amendment law. I have postponed engagement with this analysis until the next chapter, although some of the examples in this chapter have been gathered from legal cases. The next chapter should clarify why I have not relied upon common First Amendment doctrines and frameworks to articulate the concerns expressed in this chapter.

CHAPTER THREE

A CRITIQUE OF HOW COURTS ASSESS UNIVERSITY INTRUSIONS ON MEANINGFUL ASSOCIATION

Introduction

In the previous chapter I discussed two interwoven facets of meaningful association for student groups on university campuses. I also expressed concerns about how university practices of sociospatial governance intrude upon meaningful association and diminish campus diversity.

The focus in the previous chapter was on concrete practices of campus governance—effected mainly through RSO programs—and the impact these practices have on student groups.

In this chapter I shift the focus to legal treatments of the campus issues discussed in the previous chapter. The purpose in making this shift is to identify some deficiencies evident in these legal treatments from the perspective of a legal outsider. I identify a few general deficiencies. First, in terms of the spatial contours of university campuses, courts have conceived of (public) campuses mainly as forums for speech. In doing so, they have neglected the spatial complexities of campuses and ignored the myriad activities beyond speech that play out there.165

In particular, they have neglected the fact that campus facilities, grounds, and communicative venues are key spaces for associational activities. Second, in terms of the associational contours of campus life, courts have generally struggled to illuminate the existence of voluntary student associations on campus and to safeguard the integrity of these associations from undue university

165There are important exceptions, however. See, e.g., Hays County Guardian v. Supple, 969 F.2d 111 (5th Cir. 1992) at 117 (describing the Southwest Texas State University campus as “the site of a community of full-time residents” with an “intended role more akin to a public street or park”).

encroachment. With some exceptions, the associative interests of student groups have been treated as less important than speech interests, merged with or misconstrued as speech interests, or simply ignored. The importance of accessible campus spaces for student groups has also been neglected. Relatedly, courts have generally failed to grasp the regulatory force and scope of RSO programs as mechanisms of campus governance. Consequently, they have understated the challenges faced by student groups who are denied recognition. These deficiencies should become more apparent in view of the insights and concerns I presented in the previous chapter.

In order to narrow my critique, I focus on the failings of public forum doctrine when courts have used it to assess university intrusions on the membership/leadership criteria of student groups. After briefly discussing the rudiments of public forum doctrine, I explain how courts have relied on public forum analysis to evaluate university incursions on the membership and leadership requirements of student groups. I then explain why this analysis has been insufficient. Among other things, I argue that public forum analysis: misconstrues university intrusions on voluntary association as intrusions on speech and measures these intrusions according to a weak, viewpoint-centered standard of scrutiny; minimizes the importance of campus spaces for association; misidentifies RSO programs as “forums” and thus obscures their regulatory force and scope; reduces campuses to little more than speech forums; and blurs important distinctions between student groups and university forums/resources to the detriment of student groups. The critique I offer should motivate us to assess associational issues within the campus setting without defaulting to public forum analysis.

Background: Public Forum Doctrine and Its Critics

As a preliminary matter, we need a working understanding of public forum doctrine as well as some of its major weaknesses. This is not an easy task because there is little scholarly consensus on what public forum doctrine is, how it has developed, or how it should be interpreted and applied. This difficulty aside, we can say that public forum doctrine connects

First Amendment freedoms such as speech and assembly with public spaces where people can exercise these freedoms apart from undue government intrusion. At least in theory, public forum doctrine carves out public spaces (i.e., “forums”) for public liberties.166 John Inazu speaks to the positive potential of public forum doctrine when he remarks that, “The public forum doctrine ensures that the government provides spaces where viewpoints can become voices. Public forums can be actual places, like town halls, but they can also be nonphysical or virtual spaces.”167 Inazu stresses that public forums allow “citizens and the groups they form to advocate, witness, and protest in common spaces.”168 Similarly, Larissa Lidsky suggests that public forums can foster the vitality and diversity of public discourse.169 Going further, Steven

Morrison champions public forums not only because they are “important loci of speech” but also because “they encourage assembly, which is just as important to democracy but has often been discounted by the law.”170

166Although legal scholars and courts often treat public forum doctrine as a speech doctrine, public forum cases have involved public liberties that are distinct from speech.

167Inazu, Confident Pluralism, 50.

168Ibid., 9.

169Lidsky, “Public Forum 2.0.”

170Steven Morrison, “Private Open Forums,” Lewis & Clark Law Review 19, no. 4 (2015): 3.

How does public forum analysis typically work? When a government actor interferes with public liberties (e.g., speech, assembly) on public property, courts usually begin public forum analysis by assigning the property in question to one of the three or four available forum categories: traditional public forums, designated public forums, limited public forums, and nonpublic forums. While not all public property fits into these categories, the judiciary has gradually fit a wide range of public property—from sidewalks to facilities to communication venues to funding—into only a few forum categories. The forum category then determines the level of scrutiny the judiciary uses to evaluate the disputed government restriction on speech or other public liberties. Traditional and designated public forums merit more stringent scrutiny; limited and nonpublic forums merit weaker scrutiny.171 Whether a particular government intrusion is constitutional thus hinges upon where this intrusion occurs.172 In this regard, how the judiciary chooses to designate the location in question matters a great deal.

Scholarly criticisms of public forum doctrine have been profuse, wide-ranging, and ongoing. Some criticisms center on the weak constitutional foundations or incoherent underlying principles of the doctrine.173 Other criticisms take aim at the forum categories tied to the

171Speakers may be excluded from traditional and designated forums only when this exclusion serves a “compelling” government interest. In contrast, speakers may be excluded from limited and nonpublic forums so long as the exclusion is “reasonable” and viewpoint neutral. See “The Public Forum,” Legal Information Institute, accessed February 22, 2019, https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum.

172On this point, see Daniel A. Farber and John E. Nowak, “The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication,” Virginia Law Review 70, no. 6 (1984): 1220 (“Public forum analysis might well be called the ‘geographical’ approach to first amendment law, because results often hinge almost entirely on the speaker's location.”).

173See, e.g., Peter Jakab, “Public Forum Analysis after Perry Education Association v. Perry Local Educators’ Association–A Conceptual Approach to Claims of First Amendment Access to Publicly Owned Property,” Fordham Law Review 54, no. 4 (1986): 548; Robert C. Post, “Between Governance and Management: The History and Theory of the Public Forum,” UCLA Law Review 34, no. 5 (1987): 1715 (“Although public forum doctrine has developed with extraordinary speed, it has done so in a manner heedless of its constitutional foundations. The Court has yet to articulate a defensible constitutional justification for its basic project of dividing government property into distinct categories, much less for the myriad of formal rules governing the regulation of speech within these categories.”).

doctrine. Not only are the three or four basic categories insufficient, but there is ongoing disagreement about what the basic forum categories are and how they should be differentiated.174

Scholars have been especially critical of the “limited public forum” category due to the fuzziness of the category itself,175 the judicial proclivity to categorize an increasing array of public spaces as limited public forums, and the anemic standard of scrutiny attached to this forum category.176

Still other criticisms decry the undue focus on categorization: the problem is not just that the forum categories are limited or fuzzy but that public forum analysis often amounts to a rote exercise in categorization.177

Numerous scholars have also expressed concerns about the erosion of public spaces designated as traditional public forums—where public liberties merit strong protection—and have faulted the judiciary for refusing to expand the list of traditional public forums even as the

174See, e.g., Calvin Massey, “Public Fora, Neutral Governments, and the Prism of Property,” Hastings Law Journal 50, no. 2 (1999): 309–10 (identifying the two main forum categories as public and nonpublic). Other scholars identify at least three main forum categories. See, e.g., David S. Allen, “Spatial Frameworks and the Management of Dissent: From Parks to Free Speech Zones,” Communication Law and Policy 16, no. 4 (2011): 411 (identifying the three main forum categories as traditional public, limited public, and nonpublic). On some problems caused by category confusion, see Lidsky, “Public Forum 2.0,” 1980 (“The constitutional category often determines the outcome of cases, so one might naturally expect the lines between categories to be sharply drawn. Instead, blurred lines between limited public forums and nonpublic forums and between government speech and private speech create category confusion.”).

175“Notes, Strict Scrutiny in the Middle Forum,” Harvard Law Review 122, no. 8 (2009): 2147 (remarking that “courts are unclear as to what the middle forum is and are confused about how to analyze speech restrictions within it.”); Aaron H. Caplan, “Invasion of the Public Forum Doctrine,” Willamette Law Review 46, no. 4 (2010): 654 (“The most confusion surrounds the phrase ‘limited public forum.’”).

176G. Sidney Buchanan, “The Case of the Vanishing Public Forum,” University of Illinois Law Review (1991): 949 (suggesting that the Supreme Court should use a higher standard of review for the middle forum category between the traditional public forum and nonpublic forum categories); Brownstein and Amar, “Reviewing Associational Freedom Claims in a Limited Public Forum,” 520.

177C. Thomas Dienes, “The Trashing of the Public Forum: Problems in First Amendment Analysis,” George Washington Law Review 55, no. 1 (1986): 110 (calling forum analysis “an inadequate jurisprudence of labels”); Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge: Cambridge University Press, 2009), 11 (“[t]he Court's categorization is not merely illustrative of a problem. It is, in fact, a large part of the problem. Legal rights and obligations flow directly from its rigid property categorization, which generally fails to account for the expressiveness of place.”).

nature of public forums has shifted.178 The public spaces where public liberties enjoy robust protection seem to be shrinking in spite of public forum doctrine’s rapid expansion and broad application. From a different angle, some scholars worry that public forum doctrine has been stretched too far and problematically applied within settings that are not forums at all.179 Still another line of criticism faults modern interpretations of public forum doctrine for focusing exclusively on speech to the neglect of assembly and other First Amendment public liberties.180

Whereas earlier iterations of public forum doctrine encompassed assembly and other public liberties, current iterations have reduced public forum doctrine to a speech doctrine.

The pathologies of public forum doctrine in theory and practice are perhaps most visible when the doctrine has been applied within places of higher education. Over the past few decades, courts have relied heavily on public forum doctrine to evaluate myriad First Amendment issues within the public university context. Among other things, courts have assigned forum designations to outdoor campus areas,181 meeting rooms in campus facilities,182 school newspapers,183 yearbooks,184 student elections,185 registered student organization programs,186

178See, e.g., O’Neill, “Privatizing Public Forums to Eliminate Dissent”; Lidsky, “Public Forum 2.0”; Inazu, “Virtual Assembly,” 1124.

179Caplan, “Invasion of the Public Forum Doctrine.”

180John D. Inazu, “The Four Freedoms and the Future of Religious Liberty,” North Carolina Law Review 92, no. 3 (2014): 820 (“The public forum doctrine now associated with the free speech right had originated in a case on the right of assembly, Hague v. Committee for Industrial Organization.”); Michael W. McConnell, “Freedom by Association,” First Things, no. 225 (2012): 41 (remarking that “the Court’s earliest public-forum cases involved claims of freedom of assembly in addition to freedom of speech.”).

181Pro-Life Cougars v. University of Houston, 259 F. Supp.2d (S.D. Tex. 2003); Roberts v. Haragan, 346 F. Supp.2d (N.D. Tex. 2004).

182Widmar v. Vincent, 454 U.S. 263 (U.S. 1981).

183Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995).

184Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001).

185Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007).

and even funding.187 The forum metaphor thus pervades—and confines—legal mappings of the campus terrain and of a wide array of university programs and resources. Such mappings are often inattentive to the spatial and social complexities of the campus setting. Moreover, while there is ongoing disagreement about what forum category should be assigned to each of the above “forums,” courts increasingly default to the limited public forum category. The weak standard of scrutiny tied to the limited public forum category means that universities can more easily regulate student use of, and access to, these so-called forums without running into any serious legal trouble.188

Recent Uses of Public Forum Doctrine to Assess University Intrusions on Student Groups

The failings of public forum analysis in the university context have been most apparent when courts have relied on public forum doctrine to address conflicts between student groups and universities. In recent cases such as Every Nation Campus Ministries v. Achtenburg (2009),

Christian Legal Society v. Martinez (2010), and Alpha Delta Chi-Delta Chapter v. Reed (2011), university policies impinging upon the membership practices of student associations have been evaluated through the speech-centric framework of public forum doctrine.189 Intrusions upon voluntary association have thus been treated as intrusions upon free speech. This move elides important distinctions between association and speech and between the distinct but cognate First

186Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d; Christian Legal Society v. Martinez, 561 U.S.; Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d.

187Gay and Lesbian Students Association v. Gohn, 850 F.2d 361 (8th Cir. 1988); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995); Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543 (11th Cir. 1997).

188I develop and support this claim later in the chapter.

189Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d; Christian Legal Society v. Martinez, 561 U.S.; Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d. Every Nation and Alpha Delta are related cases that involve the same plaintiffs.

Amendment freedoms of association (or assembly) and speech.190 Judicial reliance on a public forum framework has obscured the dynamics of meaningful association and subsequently enabled universities to disrupt meaningful association with relative ease. To flesh out this concern by way of a contrast, I first discuss a seminal Supreme Court case, Healy v. James

(1972), in which the Court did not rely on public forum doctrine when adjudicating a dispute between a student group and its host university.191 I then contrast the Healy decision with a few recent legal decisions in which public forum analysis played a central, decisive role.

In Healy v. James, the president of Central Connecticut State College (CCSC) denied recognition to a campus chapter of Students for a Democratic Society (SDS) because of the group’s allegedly violent and disruptive philosophy. The Supreme Court held that CCSC’s denial of recognition violated SDS’s associational interest protected under the First Amendment. In his opinion for the Court, Justice Powell highlighted the practical challenges SDS faced as a result of nonrecognition:

Denial of official recognition posed serious problems for the organization's existence and growth. Its members were deprived of the opportunity to place announcements regarding meetings, rallies, or other activities in the student newspaper; they were precluded from using various campus bulletin boards; and -- most importantly -- nonrecognition barred them from using campus facilities for holding meetings.192

Justice Powell thus drew a close connection between official recognition and a student organization’s existence and growth. Denial of the former would injure the latter because of the practical, negative effects of nonrecognition on a student organization’s ability to exist and grow on campus.

190For a discussion of how association and speech are distinct, see, e.g., Abu El-Haj, “Friends, Associates, and Associations: Theoretically and Empirically Grounding the Freedom of Association,” 70–71.

191Healy v. James, 408 U.S.

192Ibid., 176.

Going further, Justice Powell also connected official recognition and a student group’s freedom of association. He argued that,

There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate responses. The practical effect of nonrecognition was demonstrated in this case when, several days after the President’s decision was announced, petitioners were not allowed to hold a meeting in the campus coffee shop because they were not an approved group. Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization's ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, faculty members, and other students. Such impediments cannot be viewed as insubstantial.193

In Justice Powell’s view, a student group’s associational right thus encompasses access to campus facilities (“use of campus facilities”) and communicative channels (“bulletin boards and the school newspaper”), as well the practical ability to participate in campus life (“campus debate”) and to pursue its associational purposes. In response to the argument that CCSC’s administration did not directly interfere with SDS’s freedom of association, Justice Powell stressed that even indirect infringements on associational rights can be impermissible. Moreover, in response to the argument that SDS could meet off-campus, Justice Powell reasoned that “the group's possible ability to exist outside the campus community does not ameliorate signiﬁcantly the disabilities imposed by the President's action.”194 Overall, Justice Powell identified nonrecognition as a form of prior restraint that prevented members of SDS from engaging in a range of associational activities integral to their associational freedom.195

193Healy v. James, 408 U.S. at 181–82.

194Ibid., 183.

195Ibid., 184.

Importantly, Justice Powell did not rely upon (or even mention) public forum doctrine in his opinion. He did not characterize CCSC’s campus as a public forum of any kind, but instead reiterated the importance of First Amendment freedoms, including freedom of association, at state colleges and universities.196 He also addressed the appropriate limits to associational activities, remarking that, “Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.”197

A line of more recent legal cases—Every Nation, Martinez, and Alpha Delta—has also involved clashes between student groups and university practices of sociospatial governance through recognition programs. In each case, public forum doctrine pervaded the judiciary’s analysis and determined the outcome of the case.

The Every Nation case involved four Christian student organizations at two California

State University campuses who were denied formal recognition after refusing to comply with

CSU’s nondiscrimination policy, which prohibited discrimination based on religion and sexual orientation among other things.198 The student groups subsequently filed suit. In his summary

196Healy v. James, 408 U.S. at 180 (“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, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ Shelton v. Tucker, 364 U. S. 479, 364 U. S. 487 (1960).”).

197Ibid., 189.

198Case overview: “Defendants denied plaintiffs formal recognition as student organizations because of their refusal to comply with the university's nondiscrimination policy. Plaintiffs asserted that compliance with the policy would require them to give up their First Amendment rights of free speech, freedom of religion, and freedom of expressive association. The court held that defendants could constitutionally condition official recognition as a student organization on the requirement that plaintiffs not discriminate on several bases. The court found that defendants' student organization program was a limited public forum to which the State could restrict access because the restrictions were reasonable and viewpoint-neutral in light of the purpose served by the forum. The First Amendment burdens imposed by the policy were viewpoint-neutral and uniformly applied to all clubs irrespective of their particular viewpoints. Thus, plaintiffs' free association, free speech, and free exercise rights were not impermissibly infringed by the policy. Further, there was no evidence that plaintiffs were treated inequitably in their exclusion from the forum due to their discriminatory membership criteria.” Every Nation Campus Ministries v. Achtenberg, 2009 U.S. Dist. LEXIS 12251, 1, https://advance-lexis-

judgment for the defendants, District Judge Larry Burns acknowledged the tension between

CSU’s nondiscrimination policy and the membership criteria of student groups: the policy was

“directed solely towards student groups' membership criteria.”199 He further acknowledged that non-recognized student groups were cut off from a range of benefits including “easy, affordable access to meeting rooms.”200 But he then relied on public forum analysis to evaluate CSU’s policy, remarking that:

The Court must, as a threshold matter, decide what kind of “forum” for speech CSU's student organization program is. That will determine the level of scrutiny that the Court applies to CSU's nondiscrimination policy as it affects the Plaintiffs' First Amendment interests. Forum analysis is therefore critical, and in this case it is likely outcome- determinative.201

Following Ninth Circuit precedent, Judge Burns presented the following forum typology.

The two basic categories are public and nonpublic. The public forum category includes two sub- categories: open/traditional and designated. The designated forum category, in turn, includes two categories: non-limited and limited forums.202 Non-limited forums do not limit who can speak or what can be discussed, whereas limited forums restrict access to certain groups and limit discussion to certain topics. Government restrictions within limited designated forums are subject to a lesser standard of scrutiny than those within non-limited designated forums. These

com.libproxy.lib.unc.edu/api/document?collection=cases&id=urn:contentItem:4VN6-GC00-TXFP-C2N4-00000- 00&context=1516831.

199Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d at 1086.

200Ibid., 1079. For a fuller list of benefits, see n. 11 (“Particular benefits available only to officially-recognized student groups at SDSU include, among other things: rental of Aztec Center/Student Union facilities; informational tabling at Aztec Center; student organization weekly business meetings at Aztec Center; rental of instructional technology services equipment; placement of banners on Aztec Center walkways; posting of signs at Aztec Center walkway; posting of signs at Aztec Center food court; welcome week; explore SDSU; student organization funding; and a listing on the universities' official website.”).

201Ibid., 1090.

202Judge Burns acknowledged the fuzziness of the “limited public forum” category; see ibid., 1091.

restrictions are permissible as long as they are viewpoint neutral and reasonable in light of the purposes of the forum.203

Judge Burns then determined that CSU’s registered student organization program was a limited designated public forum because it was “created by designation” and participation was limited “to those groups that agree to abide by CSU's nondiscrimination policy.”204 He reasoned that CSU’s nondiscrimination policy was not subject to strict scrutiny because it governed a limited forum rather than a non-limited one. CSU could restrict access to its RSO “forum” as long as the restrictions were viewpoint neutral and reasonable in light of the purposes served by the forum. Judge Burns concluded that CSU’s policy satisfied these requirements and therefore passed judicial scrutiny.

In a subsequent case, Christian Legal Society v. Martinez, the Supreme Court ruled that the all-comers policy used by UC Hastings College of the Law to regulate its RSO program did not violate the First Amendment interests of a campus chapter of the Christian Legal Society.205

In her opinion for the majority, Justice Ruth Bader Ginsburg reasoned that CLS’s “expressive- association and free-speech arguments merge” and that it would therefore make “little sense to

203Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d at 1092 (“In a limited public forum, exclusions are evaluated in the same way as under nonpublic forum analysis.).”

204Ibid., 1091.

205Case overview: “The group [Christian Legal Society] argued that an accept-all-comers policy (AACP) impaired its First Amendment rights to free speech, expressive association, and free exercise of religion, as it had to accept members who did not share its religious and sexual orientation beliefs or relinquish the advantages of recognition. But, AACP compliance was a reasonable, viewpoint-neutral condition on access to the student-organization forum. The group's exclusionary expressive activity was protected, but it had no constitutional right to state subvention of its selectivity. Public-forum precedents supplied the appropriate framework for the speech and association rights claims, as those rights were closely linked. The school could reasonably decide that the educational experience was best promoted by the AACP. The AACP ensured no student was funding a group that would reject her as a member. The school's desire to redress the perceived harms of exclusionary membership policies was an adequate explanation over and above mere disagreement with any group's beliefs. In seeking an exemption from the school's AACP, the group sought preferential, not equal, treatment; a Free Exercise of Religion Clause claim failed.” Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, 2010 U.S. LEXIS 5367, 1, https://advance-lexis- com.libproxy.lib.unc.edu/api/document?collection=cases&id=urn:contentItem:7YTH-R840-YB0V-916S-00000- 00&context=1516831.

treat CLS's speech and association claims as discrete.”206 She argued that public forum analysis was the appropriate framework for both claims and then focused exclusively on CLS’s weightier free speech claim. She also determined that the Hastings RSO program was a limited public forum. Justice Ginsburg then relied on limited public forum precedent to balance CLS’s free speech right against Hastings’ interests. In her view, CLS sought what was “effectively a state subsidy” when it applied for formal recognition and the benefits flowing from recognition, and it faced “only indirect pressure to modify its membership policies.”207 Hastings did not compel

CLS to admit unwanted members, and CLS could forgo recognition if it found the all-comers condition too intrusive. Justice Ginsburg concluded that the Hastings all-comers policy satisfied the standard of scrutiny for limited public forums because it was reasonable and viewpoint neutral.208

In Alpha Delta Chi-Delta Chapter v. Reed, the Ninth Circuit relied on the same limited public forum analysis to assess whether the nondiscrimination policy that San Diego State

University attached to its RSO program violated the First Amendment speech and association rights of two religiously-oriented Greek organizations.209 The Ninth Circuit ruled in favor of

206Christian Legal Society v. Martinez, 561 U.S. at 680.

207Ibid., 682.

208On the viewpoint neutrality of the all-comers policy, Justice Ginsburg argued: “It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers. In contrast to Healy, Widmar, and Rosenberger, in which universities singled out organizations for disfavored treatment because of their points of view, Hastings’ all-comers requirement draws no distinction between groups based on their message or perspective. An all-comers condition on access to RSO status, in short, is textbook viewpoint neutral.” Ibid., 694– 95.

209Case overview: “University administrators denied plaintiffs' applications for official recognition in the university's student organization program because plaintiffs' membership requirement, that their members and officers profess a specific religious belief, conflicted with the university's nondiscrimination policy. Plaintiffs asserted free speech, expressive association, free exercise, and equal protection claims. The appellate court determined that the university's nondiscrimination policy, as written, did not violate plaintiffs' rights of free speech and expressive association because (1) the policy was reasonable in light of the student organization program's purpose of promoting diversity and nondiscrimination, and (2) the policy was neutral as to content and viewpoint. The policy, as written, did not violate plaintiffs' rights to free exercise of religion and equal protection under the law, because it

SDSU. Circuit Judge Harry Pregerson acknowledged that SDSU’s nondiscrimination policy was narrower than the all-comers policy used by Hastings because it prohibited membership restrictions only on certain bases, such as religion, rather than banning all membership restrictions. But he used the same standard of review that the Court majority used in Martinez.210

Judge Pregerson reasoned that SDSU’s student organization program—like the Hastings program—was a limited public forum. He proceeded to use public forum analysis to review both the speech and association claims of the student organizations. He remarked that,

Because we conclude that San Diego State’s student organization program is a limited public forum, we apply the same analysis to both Plaintiffs’ free speech and expressive association claims: Plaintiffs’ exclusion from San Diego State’s student organization program is permissible if San Diego State’s requirement that student groups adhere to the nondiscrimination policy is (1) reasonable in light of the purpose of the forum; and (2) viewpoint neutral.211

After examining SDSU’s RSO policies using limited public forum analysis, Judge

Pregerson determined that the disputed nondiscrimination requirement was reasonable and viewpoint neutral. On his reading, the requirement was reasonable “in light of the student organization program’s purpose of promoting diversity and nondiscrimination.”212 It was also viewpoint neutral—at least as-written—because the plaintiffs offered no evidence “that San

did not target religious belief or conduct, and any burden on religion was incidental to the general application of the policy. However, remand was warranted because there were triable issues of fact as to whether the university selectively enforced the policy.” Alpha Delta Chi-Delta Chptr v. Reed, 2011 U.S. App. LEXIS 15876, 1, https://advance-lexis-com.libproxy.lib.unc.edu/api/document?collection=cases&id=urn:contentItem:82VV-8161- 652R-81KB-00000-00&context=1516831.

210“The appellate court agreed that the case was not controlled by the U.S. Supreme Court’s decision in CLS v. Martinez … because SDSU’s nondiscrimination policy was materially different from the ‘all-comers’ policy at issue in Martinez. The court did determine, however, that San Diego State’s RSO program was a ‘limited public forum,’ and SDSU’s membership policy was subject to the same ‘limited public forum’ analysis that the Supreme Court had applied in Martinez. The viewpoint neutrality requirement that is central to the limited public forum analysis therefore became the focal point of the dispute.” Kaplin and Lee, The Law of Higher Education, 1269.

211Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9994.

212Ibid.

Diego State implemented its nondiscrimination policy for the purpose of suppressing Plaintiffs’ viewpoint, or indeed of restricting any sort of expression at all.”213

Four Problems with Recent Public Forum Analysis

Misconstruing Intrusions on Voluntary Association as Intrusions on Speech

In this section I identify four main problems with judicial reliance on public forum analysis in the three recent cases discussed above. First, I argue that public forum doctrine provides a poor framework for evaluating university intrusions on the membership practices of student groups. By relying on a speech-centric framework to evaluate university intrusions on voluntary student association, the judges in these cases deflected attention away from the associative interests of student groups and largely ignored how RSO policies harm these interests.214 They focused on the speech interests of student groups, not on their associational interests.215 But, as discussed in the previous chapter, RSO stipulations are problematic mainly because they intrude upon a core facet of voluntary association by dictating how student groups choose their members and leaders. They aim directly at the composition of groups and thus threaten their internal integrity, not merely or mainly their ability to express a viewpoint.

Ashutosh Bhagwat rightly argues that Martinez was mainly about free association, not free speech. He remarks that,

[T]he key error made by all the Justices in Martinez was to treat the case as one primarily about the right of free speech, rather than about freedom of association. That error was profound, and it led the Court into a frankly nonsensical analysis; but it was also

213Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9996.

214For a discussion of additional cases in which courts have collapsed speech and association issues into a speech analysis, see Jennifer S. Goldstein, “Freedom of Expressive Association and Discrimination on the Basis of Sexual Orientation,” Georgetown Journal of Gender and Law 16, no. 1 (2015): 177–78.

215The associational interests of student groups were detailed in chapter two.

unsurprising. The Court's miscues in Martinez are rooted in half a century of jurisprudence in which the Court has essentially eviscerated the First Amendment's right of association.216

Going further, Bhagwat elucidates the associative interests of CLS (beyond expression) and how

Hastings disrupted these interests:

The primary goals of CLS as an organization were not communicative, they were to provide a forum in which similarly thinking individuals could share and reaffirm their values and worship together. Moreover, the primary burden imposed by Hastings was not on CLS's ability to communicate; rather, it was on its ability to select its members—in other words, on CLS members' choice to associate with whomever they want.217

On Bhagwat’s reading, the Court erred by opting for public forum doctrine to adjudicate a freedom of association issue. In a similar vein, Alan Brownstein and Vikram Amar criticize the

Court for assuming “with little supportive analysis that the same varying standards of review that apply to speech regulations in a limited public forum should apply to regulations of association as well.”218 As these scholars suggest, it makes little sense to evaluate intrusions upon the membership practices of student groups in terms of viewpoint neutrality. We might acknowledge that RSO policies are viewpoint neutral on their face but still take issue with how they intrude upon the associational integrity of student groups.

Justice Ginsburg’s rationale for using public forum analysis was that CLS’s expressive association and free speech arguments merged and that free speech carries more weight than expressive association in the limited public forum context. But this rationale reflects the inadequacy of the Court’s expressive association doctrine.219 Expressive association doctrine

216Bhagwat, “Associations and Forums,” 549.

217Ibid., 553.

218Brownstein and Amar, “Reviewing Associational Freedom Claims in a Limited Public Forum,” 513.

219For a critique of expressive association doctrine, see Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly.

itself is suffused with speech-centrism and elides important distinctions between speech and association. It neglects the non-expressive values of voluntary association (e.g., banding together for mutual support) and betrays an instrumentalist treatment of voluntary associations as mere vehicles for expression (i.e., speech). If we move beyond the confines of this doctrine and take seriously the understanding of meaningful association presented in the previous chapter, it should become clear both that the interests of student groups in practicing meaningful campus association are not merely expressive interests and that their non-expressive interests deserve a fair hearing.

The judicial proclivity to use public forum analysis to evaluate university incursions upon the membership practices of student groups is less useful given that public forum doctrine has been reduced to a free speech doctrine. Whereas earlier iterations of the doctrine were attuned not only to speech but also to other public liberties such as assembly, recent iterations focus exclusively on speech. Michael McConnell remarks that public forum doctrine is now treated as a branch of free speech law.220 Judge Burns’s opinion in Every Nation exemplifies such a treatment. He assumed that university forums are “for speech”221 in spite of his reference to earlier legal cases that have described a (designated) public forum as “a place or channel of communication … for assembly and speech.”222 Judge Burns thus reduced public forum doctrine to a speech doctrine and narrowed the purposes of university forums to speech without even acknowledging that he had left assembly out of consideration.

220McConnell, “Freedom by Association,” 41.

221Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d at 1090 (“The Court must, as a threshold matter, decide what kind of ‘forum’ for speech CSU's student organization program is.”).

222Ibid., 1091.

To sum up this concern, public forum analysis has obscured the associative interests of student groups, misconstrued university intrusions on association as intrusions on speech, and measured these intrusions according to a weak, viewpoint-centered standard of scrutiny. On the one hand, judicial reliance on public forum analysis in these three cases is symptomatic of deeper problems, namely problems with current freedom of association jurisprudence. On the other hand, such reliance creates problems and spawns what Bhagwat fittingly calls “frankly nonsensical analysis.”223 When it comes to evaluating associational issues in the campus context, hewing to public forum doctrine is not only unhelpful but counterproductive.

Minimizing the Importance of Campus Spaces for Meaningful Association

Second, I argue that most of the judges in the three cases under discussion minimized the importance of campus spaces for meaningful association. They construed campus space as a

“benefit” contingent on recognition, diverted attention from space to funding, and downplayed the constraints on campus access effected by denial of recognition. As a result, they elided the necessary connection between campus association and campus space.

In the previous chapter I argued that meaningful campus association requires accessible campus spaces. Student associations need appropriate campus spaces for their private and public activities. They need on-campus spaces where they can effectively gather, hold events, engage with others on campus, and so forth. Bhagwat foregrounds the importance of campus spaces to student associations when he asks, “Where else can student associations meet, and how else can they seek out others to associate with, if not on campus greens, through campus communications,

223Bhagwat, “Associations and Forums,” 549. The problems produced by public forum analysis are discussed throughout this chapter.

and in campus classrooms?”224 For student associations, access to such spaces is not an amenity but a precondition of meaningful association.

In the previous chapter I also stressed that university recognition governs access to the campus spaces integral to meaningful association. This fact is evident in the cases under discussion. In Every Nation, the recognition policies used by the California State University campuses involved in the case tracked a California regulation specifying that recognition includes “allowing the use of campus facilities” to recognized student organizations.225 Only recognized student groups could rent student union facilities and participate in tabling within the union.226 Student unions are hubs for student life and key spaces for the social activities of student groups. Campus facilities besides student unions also provide student groups with spaces where they can gather, hold events, and engage in myriad group activities. Barring non- recognized student groups from these spaces inhibits their practice of meaningful association on campus.

In Martinez, the recognition policy used by Hastings specified that recognized student groups could “apply for permission to use facilities for meetings and office space.”227 After

Hastings refused to recognize CLS, the group struggled to carry out its associational activities on campus. For instance, CLS submitted multiple requests to set up a table on campus and to reserve a room, but Hastings failed to respond to these requests and thus hindered CLS from

224Bhagwat, 562.

225Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d at 1086.

226Ibid., n. 11.

227Christian Legal Society v. Martinez, 561 U.S. at 670.

using campus spaces integral to its associational activities and participation in campus life.228 In

Alpha Delta, the recognition policy used by San Diego State University identified “access to campus office space and meeting rooms” as one of the benefits given to recognized groups.

Among other things, non-recognized groups were prevented from using university rooms at low or no cost.229 Overall, when we look at written recognition policies and the actual effects of nonrecognition on student groups, it is clear that non-recognized groups encounter serious obstacles to campus access.

But in some of the legal opinions under consideration, a common tendency was to treat access to campus spaces as a mere “benefit,” or subsidy, contingent on recognition.230 Such a treatment misconstrues access to these spaces as a privilege to be doled out only to deserving student groups. In seeking to use campus facilities and grounds, however, student groups are not really looking for subsidies, privileges, or sponsorship from the university. Rather, they are seeking something prerequisite to their presence and growth on campus. If something as basic as using campus facilities and grounds is a subsidy, then universities subsidize virtually every person that sets foot on campus.

A related tendency was to treat funding as the primary benefit of university recognition and to thereby divert attention from campus space to funding. In Martinez, Justice Ginsburg argued that, by applying for recognition, CLS sought “what is effectively a state subsidy.”231 Her emphasis on funding is also evident in her claim that CLS enjoyed “no constitutional right to

228Christian Legal Society v. Martinez, 561 U.S. at 716–17. For a fuller discussion of the challenges faced by CLS after it was denied recognition, see Justice Alito’s dissenting opinion.

229Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9988.

230See, e.g., Every Nation Campus Ministries v. Achtenberg, 597 F. Supp.2d at 1079; Christian Legal Society v. Martinez, 561 U.S. at 669, 698; Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9986.

231Christian Legal Society v. Martinez, 561 U.S. at 682.

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state subvention of its selectivity.”232 Justice Stevens reasoned that Hastings “need not subsidize”

CLS by granting the group official recognition.233 But Robert K. Vischer makes the salient point that funding was of minor importance in the case:

[W]hile it is easier to dismiss the liberty claims of a group when the “liberty” espoused is the right to support at taxpayers’ expense, the funding in this case was minimal. But the consequences of de-recognition were not. CLS lost access to reserved meeting space, school communication channels, student orientation fairs, and student activity funds. Yes, CLS was free to exist, to meet off campus or to scrounge for (and perhaps pay for) on- campus meeting space when all other student groups’ needs were met, but CLS was effectively cut off from the life of the university, from easy access to student email, from the visibility that is the life-blood of organizations hoping to thrive in the marketplace of ideas that is supposed to be at the center of student life.234

In a similar vein, John Inazu remarks that the monetary subsidy CLS received from Hastings

(prior to de-recognition) was minimal; it amounted to $250 in travel funds. “Far more important than this modest subsidy,” Inazu argues, “was the denial of access to avenues of communication, meeting space, and the student activities fair.”235

Another common tendency in the legal opinions under consideration was to downplay the access restrictions imposed on non-recognized groups by pointing to alternative channels (e.g., social networking sites) available to these groups. Rather than seriously considering the challenges that non-recognized groups face, Justice Ginsburg and others glossed over them by arguing that non-recognized groups could still find ways to maintain a campus presence.236 But this line of reasoning is dubious. The possibility that non-recognized groups might cope with

232Christian Legal Society v. Martinez, 561 U.S. at 669.

233Ibid., 703.

234Robert K. Vischer, “Diversity and Discrimination in the Case of the Christian Legal Society,” Public Discourse (blog), July 9, 2010, http://www.thepublicdiscourse.com/2010/07/1410/.

235Inazu, “The Four Freedoms and the Future of Religious Liberty,” 844–45.

236Christian Legal Society v. Martinez, 561 U.S. at 690–91. See also Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9993 (remarking that non-recognized groups “have alternative avenues of communication”).

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restraints on campus access does not render these restraints legitimate. The exclusion of non- recognized student groups from campus facilities, grounds, and communicative channels begs justification even if these groups could conceivably meet off-campus or use Facebook to communicate with other students. Rather than putting the onus on student groups to justify their efforts to meet on campus and to engage with the campus community, the onus should be on universities to offer compelling reasons for inhibiting these efforts.

Misidentifying RSO Programs as Forums and Reducing Campuses to Speech Forums

Third, I argue that public forum analysis relies on a suspect identification of RSO programs as forums. This identification lacks conceptual rigor and clouds the expansive reach and force of RSO programs as mechanisms for sociospatial campus control. I also question the fitness of the “speech forum” metaphor that pervades public forum analysis. This over-worn metaphor offers an inadequate representation of the spatial and social contours of the campus setting.

While a standard move in the three cases under consideration was to identify RSO programs as limited public forums, this identification deserves scrutiny. The term “forum” refers to a place, meeting, or medium where ideas can be exchanged. But a RSO program is not really a forum in any of these senses; it is not a place, meeting, or medium. Registered student groups do not meet within, or at, a RSO program. Aaron Caplan rightly faults all of the Supreme Court opinions in Martinez for failing to even question the aptness of the forum metaphor. 237 Rather than assuming that RSO programs are forums (limited or otherwise), we should ask whether this identification is even appropriate.

237Caplan, “Invasion of the Public Forum Doctrine,” 673.

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Relatedly, we should notice what falls out of consideration when RSO programs are identified as (limited) public forums. As discussed in the previous chapter, RSO programs are better understood as complex regulatory devices that govern student groups and campus access in tandem. While RSO programs do regulate access to student organization fairs and communicative channels that might function as forums, the governance they effectuate often spans beyond any particular, defined forum. Moreover, RSO programs often regulate access to campus grounds and facilities that exist regardless of whether a university has a RSO program and that function as more than forums for speech.

In this light, one problem with construing RSO programs as forums is that doing so obscures the regulatory scope and impact of these programs. As previously discussed, student groups seek official recognition not simply to gain access to a university-created speech forum or to secure funding. They seek official recognition because they will struggle to maintain a viable campus presence without it. In applying for official recognition, they are not so much seeking entry to a RSO “forum” (as a place, meeting, or medium) but to the campus and campus community generally. When student groups are denied official recognition, they are denied substantive access to the campus and the campus community, not just to a designated speech forum.

We might acknowledge that RSO programs are not forums in a strict sense but then argue that they do open and maintain campus spaces, activities, and venues that function as forums.

But even if we grant this, the “speech forum” metaphor is still problematic because it is reductive: it construes the appropriate functions and uses of campus spaces too narrowly. It fails to account for the range of social activities beyond the exchange of ideas that play out in campus spaces (reductively) designated as speech forums. For members of student groups, these social

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activities may include holding meetings, planning and hosting events, worshipping, pursuing shared interests and purposes, banding together for mutual support, building alliances and coalitions, protesting, and recruiting.

Judicial over-reliance on the “speech forum” metaphor is all the more problematic given the current proclivity to designate a huge swath of campus spaces, facilities, venues, and channels as forums—presumably for the exchange of ideas through speech. When the “speech forum” metaphor dominates legal mappings of the campus setting, we end up with an impoverished legal representation of this setting that is ill-tuned to its actual sociospatial complexities. As a result, university practices of sociospatial campus governance that do not intrude upon speech activities can more easily evade judicial scrutiny. When campuses are reduced to mere speech forums by courts, university intrusions on activities other than speech are rendered less visible and more permissible.

To sum up this third set of concerns, we should question the assumption that RSO programs are limited public forums—or forums at all. This assumption lacks rigor on a conceptual level. More importantly, it understates the expansive regulatory force of RSO programs because, in practice, these programs regulate student groups beyond designated, defined speech forums. In part, this is because universities can label an expansive array of campus facilities and venues as “limited public forums” so that they can exert more control over the student groups seeking to use these spaces.238 By stretching the limited public forum designation to encompass what could be open campus spaces for students, universities amplify

238See, e.g., University of Cincinnati Chapter of Young Americans for Liberty v. Williams. The University of Cincinnati claimed that it had the right to regulate all expressive activity on campus because all campus areas, including its designated Free Speech Area, were limited public forums rather than traditional or designated public forums.

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the reach and force of their RSO programs. Courts exacerbate this phenomenon when they default to the limited public forum category in the university context. Not only that, but the forum metaphor itself has been overworked and stretched too far. It cannot capture the spatial and social complexities of the campus setting. University campuses are more than forums in a spatial sense, and they enable more than the exchange of ideas in a social sense. This is not to say that we should toss out the forum metaphor, but we should search for additional ways to describe the spatial and social contours of the campus environment.

Conflating Student Groups with University Forums and Resources

Fourth, I argue that judges relying on public forum analysis sometimes conflate student groups with the forums and resources governed by RSO programs. This conflation is problematic because it blurs organizational distinctions between student groups and the institutional apparatus of universities to the detriment of student groups. In his concurring opinion in

Martinez, Justice Anthony Kennedy conflated a student association, Christian Legal Society, with the forum Hastings managed through its RSO program. In defending the reasonableness of the all-comers requirement governing registered student groups, Justice Kennedy argued that

CLS’s enforcement of its membership qualifications would “contradict a legitimate purpose for having created the limited forum in the first place.” He pointed to the purposes of the Hastings forum to support his argument:

Extracurricular activities, such as those in the Hastings “Registered Student Organization” program, facilitate interactions between students, enabling them to explore new points of view, to develop interests and talents, and to nurture a growing sense of self…. The Hastings program is designed to allow all students to interact with their colleagues across a broad, seemingly unlimited range of ideas, views, and activities.239

239Christian Legal Society v. Martinez, 561 U.S. at 704–5.

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He added that the law school’s objectives “may be better achieved if students can act cooperatively to learn from and teach each other through interactions in social and intellectual contexts”; this objective would be frustrated “if students wall themselves off from opposing points of view.”240

What Justice Kennedy describes is an admirable purpose for a university forum.

Universities should facilitate interaction between students and encourage “vibrant dialogue” beyond the classroom by creating student forums, among other things. But Justice Kennedy conflated the university forum (the site of interaction) with the registered student groups (the interactants) using the forum. He also transposed the purposes and norms governing the university forum onto these student groups. As a result, he misconstrued each registered student group as a forum for “vibrant dialogue” and student interaction across a “seemingly unlimited range of ideas, views, and activities.” It is true that student groups (as distinct entities with their own integrity) can interact with each other within university forums. These forums might include spaces in student unions and communicative venues such as club fairs. But Justice Kennedy’s category error rendered student groups as forums and thus blurred important distinctions between student groups and campus spaces more appropriately conceived of as forums.241

In this light, Justice Kennedy’s argument that the all-comers requirement was reasonable given the purposes of the Hastings forum is beside the point. Universities can foster student interaction and dialogue without imposing open membership policies on every student group.

They can use their institutional resources, programs, and facilities to encourage engagement

240Christian Legal Society v. Martinez, 561 U.S. at 705.

241Justice Kennedy also failed to distinguish between the meetings/activities of a student group and its leadership. The former might be open to all interested students while the latter might be restricted to those committed to the purposes and practices of the group.

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among a diversity of student groups. They can do this while respecting the integrity of student groups and encouraging a healthy diversity of groups. If the goal is vibrant dialogue and interaction within a university forum, the all-comers requirement might undermine this goal more than anything.242 Making each registered student group a forum for interaction across an

“unlimited range of ideas” risks diluting and diminishing the range of ideas within the university forum. Forcing the College Democrats, for instance, to internalize the goals and functions of the

Hastings forum would not only violate their group integrity but also dilute the distinctiveness of their expressed viewpoint within the forum.

In Alpha Delta, Judge Harry Pregerson made a category error by treating two private

Greek organizations as “resources” administered through SDSU’s RSO program. In evaluating the viewpoint neutrality of the nondiscrimination policy governing the program, Judge Pregerson noted with approval that:

San Diego State asserts that the purpose of its policy, which closely tracks the nondiscrimination policy applied to the entire California State University system, is to prevent discrimination and to ensure that the school’s resources are “open to all interested students without regard to special protected classifications.”243

Judge Pregerson argued that the written nondiscrimination policy was viewpoint neutral because its purpose was to ensure access to the “school’s resources,” not to suppress viewpoints. But, on this reading, registered student organizations are misconstrued as school “resources.” Judge

Pregerson accepted the school’s conflation of two private Greek organizations with its own resources without even acknowledging the categorical distinctions between private student organizations and university resources. He assumed that the school’s interest in making its institutional resources available to students justified the constraints it placed on the membership

242But even if the all-comers requirement enhanced diversity, it would still be problematic because it intrudes on the integrity of student groups.

243Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d at 9996.

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and leadership practices of private student organizations. As a result, the integrity of the private

Greek organizations received minimal attention.

The category errors discussed above have made recent public forum analysis all the more disorienting. When judges conflate student groups with university forums or resources, they blur the organizational boundaries between student groups and universities and subsume the former within the institutional apparatus of the latter. As a result, they obscure the associative interests of student groups. If we draw crisper categorical distinctions, however, we will discover important differences between student groups, university-sponsored forums, and university resources. Student groups may participate in university forums with the aid of university resources. University forums and resources may enable and enrich fruitful engagement between student groups. Student groups are more likely to interact with each other when they have appropriate campus spaces for such interaction and the resources necessary to exist and thrive on campus. A university can create a forum for dialogue among a diversity of student groups without compelling each participant in the forum to become the forum in miniature. It can make its institutional resources available to student groups without treating student groups as mere resources. These possibilities are withheld from view when student groups are contorted into forums or resources through categorical miscues.

Conclusion

When it comes to addressing university incursions upon the associational interests of student groups, public forum analysis has proven to be inadequate. As evident in Every Nation,

Martinez, and Alpha Delta, judges relying on public forum analysis have caused significant misdirection by shifting the focus from association to speech and treating university intrusions upon the membership criteria of student associations as intrusions upon speech. They have also

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caused confusion by identifying RSO programs as limited public forums, leaning heavily on a reductive “speech forum” metaphor, and lumping together student groups, university forums, and university resources through category errors. Not only so, but judges have neglected or understated the sociospatial dynamics of RSO programs as well as the regulatory force and scope of these programs. As a result, public forum analysis has enabled public universities to intrude upon the associative interests of student groups without facing any serious resistance from the judiciary.

The inadequacy of public forum analysis becomes more apparent when we contrast the approaches in the above three cases—in which public forum analysis played a starring role and determined the outcome—with Justice Powell’s more clear-eyed approach in Healy. Whereas recent public forum analysis has obscured the associative interests of student groups, Justice

Powell illuminated these interests and showed how denial of university recognition injures them.

As Justice Powell emphasized, a student group has an interest in existing and growing on campus and in remaining “a viable entity in a campus community”; this interest encompasses much more than expressing a viewpoint.244 A student group has a corresponding interest in securing what is necessary for it to exist and grow on campus in a practical sense. Denial of official recognition injures student groups and their associational freedom by cutting them off from campus spaces, resources, and community. Once we recognize how recognition programs control access to campus spaces, resources, and community, we can understand that student groups need recognition to exist and grow as viable groups on campus and within the campus community.

Justice Powell accentuated the associative interests of student groups without reducing these interests to speech or expressive association and without relying on public forum analysis at all.

244Healy v. James, 408 U.S. at 176, 181.

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He also put the onus on universities to present compelling reasons for intruding upon these associative interests. Recent public forum analysis has largely ignored or distorted the associative interests that Justice Powell delineated.245

We might respond to the failings of current public forum analysis in several ways. We might try to repair public forum doctrine. For instance, we might reformulate public forum doctrine so that it would ensure space on college campuses not only for speech but also for assembly and association. John Inazu has done important work in this direction by illuminating the connection between assembly and public forums and calling for public forums that allow

“citizens and the groups that they form to advocate, protest, and witness in common spaces.”246

In a similar vein, Michael McConnell has emphasized that seminal Supreme Court public forum cases such as Hague v. CIO involved freedom of assembly, not just speech. McConnell suggests that freedom of assembly carries with it a right of access to public spaces ranging from parks to

(public) college campuses.247 In the campus context, a repaired public forum doctrine could ensure access for student associations seeking to assemble on public campuses. But such repair would require drastic jurisprudential changes in multiple areas. Courts would have to recover the

First Amendment freedom of assembly, reconnect assembly and public forums, and reconceptualize the campuses and facilities of public colleges and universities as something other than (limited) public forums for speech.

245Student groups also have an interest not explicitly addressed in the Healy decision: an interest in maintaining their associational integrity, in part by defining their membership and leadership criteria. The university in Healy did not directly intrude upon this interest, but the universities in Every Nation, Martinez, and Alpha Delta did. Their respective RSO programs forced student groups to choose between securing campus access and maintaining their group integrity.

246Inazu, Confident Pluralism, 9. See also Inazu, “The First Amendment’s Public Forum,” 1167 (“One of the goals of this Article is to reestablish the historical and doctrinal connections between the public forum and the right of assembly.”).

247McConnell, “Freedom by Association,” 41, 43.

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In addition to or in lieu of repairing public forum doctrine, we might simply restrict its use in the university context. Aaron Caplan aptly likens public forum doctrine to a tool that has often been used for “ill-fitting functions”248 and argues that public forum doctrine is most problematic when it is stretched beyond real forums to intangible property (i.e., money) that is not a forum at all.249 On this reading, the main issue is not with public forum doctrine per se but with how it has been applied. We might allow that public forum doctrine is a decent, though imperfect, doctrine while pointing to the myriad problems caused by its misuse or overextension.

We might avert these problems by reining in how public forum doctrine is used.

We should consider, for instance, whether public forum doctrine is even the right tool for addressing RSO programs and their incursions on student associations. Ashutosh Bhagwat indicates that it is not when he remarks that, “Whatever the merits of the public forum doctrine as applied to free speech, there are powerful reasons to think that a different approach is needed when assembly and association rights are at stake.”250 He adds that modern public forum doctrine “should not be carried into the assembly and association arenas.”251 Instead, Bhagwat argues that the First Amendment right of assembly—and the derivative right of association— should include a right of access to public spaces independent of public forum doctrine. He thus calls for a right of access to public spaces (including college campuses) derived from the right of assembly, not from public forum doctrine.252 From this perspective, we might carve out

248Caplan, “Invasion of the Public Forum Doctrine,” 660.

249Whereas the Supreme Court majority in Rosenberger v. Rector treated a student activity fund as a “metaphysical” forum, Caplan argues that money is not a forum even in a metaphysical sense. See Caplan, 669.

250Bhagwat, “Associations and Forums,” 560.

251Ibid., 561–62.

252Ibid., 561 (“Thus, as with assembly, an aspect of the right of association is a right of access to public spaces.”).

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meaningful protection for student associations in the university setting without relying on public forum doctrine at all.

A third approach might be to toss out public forum doctrine altogether in the campus context. Timothy Zick raises this possibility when he questions whether “the incorporation of the public forum doctrine into campus places is entirely appropriate” and suggests that

“perhaps…places of higher learning ought to be analyzed under a different regime altogether.”253

As an alternative to public forum doctrine, Zick gestures toward a “compatibility” standard:

Under the compatibility standard, rather than parse the campus geography and categorize its sidewalks, streets, plazas, and quadrangles according to the public forum doctrine, courts could instead conclude that so long as the expression is compatible with these and other campus places it ought to be permitted there.254

Admittedly, Zick focuses on ensuring ample outdoor spaces for expressive liberties such as speech and protest, not on ensuring that student associations can exist and thrive on campus without sacrificing their associational integrity. But he raises an important possibility by proposing an alternative to public forum doctrine within places of higher learning. We might forgo public forum doctrine altogether in this setting instead of repairing it or limiting its use.

I take the following approach. On the one hand, I maintain hope that a repaired and reinvigorated public forum doctrine could ensure spaces on college campuses not only for speech but also for assembly and association. But I leave the work of fixing public forum doctrine to those more qualified to do so. On the other hand, I share Caplan’s concern that the forum metaphor has been over-extended. I also share Bhagwat’s sentiment that public forum doctrine in its current form is unsuitable for addressing associational issues in the campus context.

Moreover, while I do not suggest we should remove public forum doctrine from the campus

253Zick, Speech Out of Doors, 284.

254Ibid., 284–85.

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context entirely, Zick’s suggestion that we might do so should motivate us to think beyond the frameworks, categories, and standards tied to public forum doctrine. This is precisely what I do in the next chapter, although my purpose is not to propose an alternative legal regimen to the public forum approach. I propose a few ways to navigate the sociospatial complexities that characterize places of higher education without relying on the conceptual or evaluative apparatus of public forum doctrine.

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CHAPTER FOUR

LEARNING TO LIVE TOGETHER AS NEIGHBORS WITHIN A PLURALISTIC CAMPUS SETTING

Introduction

In chapter two I stressed the importance of meaningful association for student groups. I argued that student groups need control over their integrity and access to campus spaces in order to enjoy meaningful association as campus groups. I also took issue with how universities encroach upon meaningful association and dampen campus diversity through their practices of sociospatial governance. As a partial corrective to the problems caused by these practices, I suggested that universities should commit to capacious campus pluralism, which enables a genuine plurality of student groups to enjoy meaningful association on campus. In chapter three I explained why legal treatments of the sociospatial issues identified in chapter two have generally been insufficient. One purpose of chapter three was to push theorizing about student groups on campus beyond the confines of common legal doctrines, such as public forum doctrine.

In this chapter I address possible challenges associated with meaningful association and capacious campus pluralism. By enabling a deeper diversity of student groups to pursue meaningful association on campus, capacious campus pluralism might inadvertently open the door to increased tensions between student groups and lead to a balkanized, fractured, and fraught campus atmosphere. Capacious campus pluralism thus necessitates ways to navigate tensions between student groups without effacing the differences that might occasion these tensions. In this chapter I recommend neighborliness as one such way. Neighborliness issues

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from a cognizance of the campus as a shared place and of the people who share this place as neighbors. It encompasses place-based, space-conscious norms and practices that should guide how student groups treat their campus and each other. Neighborliness is all the more imperative in light of ongoing displays of inter-group hostility, intolerance, and violence on college and university campuses across the United States. I suggest that student groups seeking to associate on campus and participate in campus life should practice neighborliness.

In the first section I discuss several lineaments of neighborliness. I point out that the student groups nested within a particular campus share common ground and exist in close spatial proximity. While this common ground and spatial proximity makes student groups neighbors in a literal sense, I stress that student groups still must learn to recognize and treat each other as neighbors. This takes willingness, practice, time, and patience. I then propose some neighborly norms and practices that student groups should adopt if they want a place on campus and within the campus community. First, student groups learning to live together as neighbors should find an appropriate balance between distance and closeness by respecting each other’s privacy while also forging neighborly ties. Second, student groups should acknowledge and affirm the sociospatial complexities of the campus setting and learn to share the campus. No student group should claim the campus as its private, exclusive (safe) space. Third, student groups should temper their expressive conduct and use of disruptive tactics with a neighborly ethos. This ethos accentuates the shared interest that neighbors have in cultivating friendly relations with each other even though they may not like each other. It also introduces an important distinction between legally-permissible conduct and appropriate conduct. In general, student groups with a neighborly ethos should not intentionally provoke or offend each other even if they may have the

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right to do so. Together, these neighborly norms and practices should guide interactions between student groups and render the campus a more livable place.

In the second section I propose a new evaluative standard for determining which student groups deserve a place on campus and within the campus community. This standard shifts attention from a student group’s formal organizational structure to its ongoing, lived commitment to neighborliness. I suggest that student groups should earn their place on campus by means of such a lived commitment, not merely or mainly by aligning their formal bylaws with university policies. A key implication is that universities should focus on how student groups interact with each other, not on the internal rules governing these groups. Universities should encourage neighborly interaction among student groups— without reaching into the internal affairs of these groups—in order to cultivate campuses that are both livable and pluralistic.

Ruminations on the Basis and Practice of Campus Neighborliness

Discovering the Basis of Campus Neighborliness

I suggest that the basis for neighborliness is common ground. Although student groups within a pluralistic campus setting differ in their internal norms and practices, they still share common ground in a literal sense: they are all geographically tied to the same campus and often nested within this campus. The campus makes their existence as campus groups not only possible but meaningful. It is a key site for their respective group activities and the locus of their engagement with the campus community. It is also a place of residency for many of their student members. Over time, student groups often develop attachments to the campus where they are

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located and relationships with others who share a similar attachment to the campus.255 For these groups, the campus thus becomes a meaningful place rather than a generic space.256 It provides student groups attached to this place with common ground even though they might not share a common good.

Student groups on a particular campus are neighbors given that they share common ground and often operate in close spatial proximity. They typically use the same facilities (e.g., student unions) and common areas (e.g., campus plazas) for their respective activities. They participate in the same campus events, such as student organization fairs. They may hold adjacent office spaces. Their student members are enrolled in the same institution and often live on or near campus. This spatial proximity means that student groups are neighbors in a practical sense, not merely a figurative one. As Donald Unger and Abraham Wandersman observe,

“Neighbors are simply defined by proximity: the people who live next door, the people who live on the block.”257 Neighbors are not defined by ideological similarity, shared preferences or identities, or close social ties but by spatial proximity within the neighborhood that they inhabit.

For student groups, their proximity within the campus “neighborhood” that they co-inhabit makes them neighbors.

255For a discussion of the attachment to place felt by individuals and groups, see Donald G. Unger and Abraham Wandersman, “The Importance of Neighbors: The Social, Cognitive, and Affective Components of Neighboring,” American Journal of Community Psychology 13, no. 2 (1985): 156–58. See also Leanne G. Rivlin, “Group Membership and Place Meanings in an Urban Neighborhood,” Journal of Social Issues 38, no. 3 (1982); Lynne C. Manzo and Douglas D. Perkins, “Finding Common Ground: The Importance of Place Attachment to Community Participation and Planning,” Journal of Planning Literature 20, no. 4 (2006).

256While I sometimes use “space” and “place” interchangeably, here I distinguish the two concepts in light of Thomas Gieryn’s observation that, “Place is space filled up with people, practices, objects, and representations.” Gieryn, “A Space for Place in Sociology,” 465. John Parkinson makes a similar distinction: “‘Space’ denotes the physical setting and ‘place’ denotes the fuller social construct.” Parkinson, “How Is Space Public?,” 684.

257Unger and Wandersman, “The Importance of Neighbors,” 140.

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Although student groups are neighbors due to the mutual ground that they share and their proximity on campus, they still must learn to recognize and treat each other as neighbors. This takes willingness, practice, time, and patience. Luke Bretherton rightly points out that “being a neighbor, unlike being a friend, is a vocation…not a condition or state of being or preassigned role.”258 He adds that “we have to constantly learn how to be a neighbor.”259 In the campus context, the presence of deep-seated rivalries and hostilities between some student groups should not excuse these groups from treating each other as neighbors. Indeed, tensions between student groups make it all the more imperative that they learn to treat each other as neighbors in lieu of ignoring each other, pushing each other off campus, disrupting each other’s private activities, or resorting to violence. This does not require that members of rival groups like each other, celebrate each other’s differences, or arrive at a moral consensus. But it does require that they learn to live together. Just as good neighbors in a neighborhood find ways to live together in the midst of differences, tensions, and affronts, so too should student groups find ways to live together within a shared place that is often complex, contentious, and pluralistic.

Finding a Balance Between Distance and Closeness

Learning to be good neighbors involves finding an appropriate balance between what

David Morgan refers to as “distance” and “closeness.”260 The “distance” facet of being a neighbor points to the need for privacy and some detachment from neighbors, whereas the

“closeness” facet points to the need for sociability, involvement, and the cultivation of friendly

258Luke Bretherton, Resurrecting Democracy: Faith, Citizenship, and the Politics of a Common Life (New York: Cambridge University Press, 2015), 97.

259Ibid.

260David Morgan, Acquaintances: The Space Between Intimates and Strangers (Maidenhead, UK: Open University Press, 2009), 19, 33–34.

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ties among neighbors. Good neighbors should be neither too distant nor too close. Morgan points out that it takes time to “negotiate appropriate boundaries of closeness and distance,” especially given that these boundaries are context-specific, implicit, and often fuzzy.261 Similarly, Graham

Crow, Graham Allan, and Marcia Summers argue that it is “a skilful accomplishment for neighbours to establish and maintain a workable balance between ‘keeping one’s distance’ and

‘being there when needed.’”262 In the campus context, student groups should tend to this

“workable balance” as they learn to live together as neighbors. They should maintain a healthy distance from each other while also cultivating an appropriate closeness through neighborly interaction and involvement.

In practice, maintaining a healthy distance between student groups makes it possible for each group to carry out its private activities on campus without being disrupted or encroached upon by other groups. This requires that student groups respect each other’s privacy, which includes respecting each other’s use of campus spaces (e.g., meeting rooms) for private activities. Howard Gillman and Erwin Chemerinsky identify a helpful standard germane to this point: when it comes to “places on campus where certain activities are assigned and recognized, those who have been given access to the space for certain purposes have the right not to be disrupted in that activity.”263 In light of this standard, student groups should exhibit what Crow,

Allan, and Summers refer to as “limited reciprocity” by giving each other space. A student group

261As David Morgan observes, the appropriate balance between closeness and distance is “clearly subject to cultural variation as well as being open to individual negotiation.” Morgan, 33.

262Graham Crow, Graham Allan, and Marcia Summers, “Neither Busybodies nor Nobodies: Managing Proximity and Distance in Neighbourly Relations,” Sociology 36, no. 1 (2002): 127.

263Howard Gillman and Erwin Chemerinsky, “Does Disruption Violate Free Speech?,” The Chronicle of Higher Education, October 17, 2017, https://www.chronicle.com/article/Does-Disruption-Violate-Free/241470.

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mindful of limited reciprocity should respect the space of other student groups with the expectation that this respect will be reciprocated. It should refrain from willfully violating or disrupting the space of others on campus.

Hostilities between student groups can feed into violations of the “healthy distance” facet of neighborliness. At some universities, for instance, ongoing hostilities between pro-Israeli and pro-Palestinian student groups have sometimes translated into efforts by one group to disrupt campus events hosted by another group whose presence, viewpoints, and activities are perceived as threatening or intolerable. For example, at the University of California at Irvine, members of the campus chapter of Students for Justice in Palestine disrupted a film screening hosted by

Students Supporting Israel. “According to university officials and local press accounts, the protest of the film included shouting of obscenities, blocking some from entering the room where the film was shown and trying to push open the door to take the shouting inside the room.

Authorities were called and police had to escort the Jewish students who had gathered to watch the film from the room.”264 The film screening was shut down as a result of the disruption.

Viewed in terms of neighborliness, Students for Justice in Palestine acted in an unneighborly manner by violating the privacy of Students Supporting Israel and intruding upon the campus space its members had reserved for the film screening. In this instance, Students for

Justice in Palestine also failed to exercise the limited reciprocity that is integral to neighborliness: it intentionally violated the space of another group but would not want other groups to violate its own space in the same manner. Neighborliness does not require that student

264Scott Jaschik, “Anti-Israel Protests Disrupts Film at UC Irvine,” Inside Higher Ed, May 23, 2016, https://www.insidehighered.com/quicktakes/2016/05/23/anti-israel-protests-disrupts-film-uc-irvine. See also Ellen Wexler, “At Two Colleges, What Happens When Protesters Obstruct Free Speech,” Inside Higher Ed, May 26, 2016, https://www.insidehighered.com/news/2016/05/26/two-colleges-what-happens-when-protesters-obstruct-free- speech.

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groups like each other or approve of each other’s activities, but it does require that they respect each other’s privacy (including private space) in a spirit of reciprocity.

At the same time, student groups should cultivate a neighborly closeness by interacting with each other in common spaces on campus and making efforts to build friendly ties with each other. This will not happen if the members of these groups simply retreat to their respective groups. In lieu of reticence, retreat, or isolation, group members should take steps to cultivate relationships with members of other groups through an ongoing process of discovery.

The campus setting often provides many opportunities for members of different student groups to encounter each other and develop a neighborly awareness of each other. Neighborly encounters can unfold in numerous contexts, including university-sponsored programming and events, student organization fairs, and collaborative undertakings aimed at building bridges between different student groups. For example, Colgate University’s Breaking Bread program has encouraged student groups that would not normally interact with each other to share a meal together around a common table.265 Denison University’s Fund for Campus Innovation and

Action has cultivated communication and constructive interaction between dissimilar student groups.266 Student groups should take advantage of these and similar opportunities in order to discover who their neighbors are on campus and build neighborly connections with each other.

They should work toward what Jon Bannister and Ade Kearns call “engagement,” which refers to “meaningful and purposeful social interaction and collective activity, not simply co-presence

265Rebecca Costello, “Breaking Bread, Building Bridges,” The Colgate Scene, July 2005, http://www4.colgate.edu/scene/july2005/bread.html.

266Kathleen Lucadamo, “Designing Ways To Move Beyond Diversity On Campus,” Huffington Post, May 19, 2016, sec. College, https://www.huffingtonpost.com/entry/moving-beyond-diversity-on- campus_us_573b7e3de4b0ef86171c64a2.

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in space along with casual, unintended, ephemeral contact.”267 Such engagement should aid student groups as they navigate the challenges of respecting each other’s privacy while also cultivating neighborly closeness.

Recognizing and Affirming the Campus as a Complex, Shared Place

Being good neighbors also requires that student groups learn to share the campus. This is imperative given the spatial and social complexities of the campus environment. Spatially, this environment consists of an array of spaces—from classrooms to quads to dormitories to student unions to administrative offices—intended for varying purposes and governed by distinct norms.

Socially, this same environment consists of many people and groups engaging in a wide range of social activities. A university campus is not a singular kind of space designed for a singular kind of activity. Rather, it is a complex place composed of many different kinds of spaces that enable many different kinds of activities. Maintaining this sociospatial complexity on campus is critical.

Among other things, it allows student groups to exercise meaningful association without being overdetermined or subsumed by the university while simultaneously allowing the university to carry out its institutional purposes and operations. It also makes capacious pluralism possible on campus by ensuring that no single norm, viewpoint, or standard predominates all campus spaces and activities.

Student groups learning to be good neighbors should develop an awareness of the complexity of the campus setting. They should then accept being part of a complex, pluralistic campus “neighborhood” and learn to share the campus with others who live and work there. No

267Jon Bannister and Ade Kearns, “The Function and Foundations of Urban Tolerance: Encountering and Engaging with Difference in the City,” Urban Studies 50, no. 13 (2013): 2712.

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student group should claim the campus as its own or try to appropriate the entire campus for its private use. This would be akin to a neighbor in a neighborhood claiming the entire neighborhood as her own or appropriating the homes of her neighbors. Rather, each student group seeking a place within the campus neighborhood should exercise restraint. Restraint maintains the shared status of the campus and prevents the campus from being monopolized or commandeered by any particular student group.

As a negative example, Goldsmiths Islamic Society (GIS) at Goldsmiths, University of

London showed an unneighborly lack of restraint when it tried to prevent Maryam Namazie from giving a talk on campus for the school’s Atheist, Secularist and Humanist Society. Goldsmiths

Islamic Society asserted that Namazie’s presence on campus would “be a violation to our safe space” because of her supposedly Islamophobic views.268 When Namazie did come to campus, members of GIS tried to disrupt her talk. In terms of neighborliness, the problem was not that

GIS sought a safe space on campus but that it claimed the campus as its safe space. It then used safe space discourse in an effort to exclude not just an idea but a person from campus. At least in this instance, GIS disregarded the shared, complex status of the campus and construed the campus as its “safe space.” Its identification of the Goldsmiths campus as its safe space can be interpreted as an unneighborly attempt to appropriate the campus and to restrict the activities of its neighbors. Attempts by a single student group to appropriate the campus as its private “safe space” ignore (or deny) the necessarily complex character of the campus and manifest an unwillingness to share the campus with others. While a student group might reasonably carve out

268Hemant Mehta, “Activist Maryam Namazie Heckled at Talk by Muslim Students Who Say She Invaded Their ‘Safe Space,’” Friendly Atheist, accessed October 19, 2016, http://www.patheos.com/blogs/friendlyatheist/2015/12/04/activist-maryam-namazie-heckled-at-talk-by-muslim- students-who-say-she-invaded-their-safe-space/.

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a safe space on campus through voluntary association, it should avoid claiming the entire campus as its exclusive safe space.

The above incident begs further consideration given the divergent notions of safe space(s) at play in popular discourse today. Katie Byron notes that safe spaces can be characterized “both by the physical location and by the community that gathers there.”269 Morton Schapiro, the current president of Northwestern University, observes that “a safe space is a place to let down your guard, where you are surrounded by people who want you to prosper. At Northwestern, that might mean the Hillel Jewish Center, the Sheil Catholic Center, or one of the many other faith- based venues. Or perhaps it is the Black House, the Multicultural Center, or the Women’s

Center.”270 In the campus context, students can thus find safe spaces within physical, designated campus locations such as SAFE zones and within particular groups or communities. The complex character of the campus setting means that any one campus might have numerous

“spaces” where students feel safe. Indeed, a remarkable—and necessary—attribute of a campus is its spatial variety.

However, maintaining the boundedness of campus safe spaces—whether understood as designated locations or voluntary associations—is important. Conceiving of the campus in toto as a safe space for a singular value, viewpoint, or identity group cuts against an argument advanced throughout this dissertation: that a single campus can and should include different

269Katie Byron, “From Infantilizing to World Making: Safe Spaces and Trigger Warnings on Campus,” Family Relations 66, no. 1 (2017): 119. See also Sarah Brown and Katherine Mangan, “What ‘Safe Spaces’ Really Look Like on College Campuses,” The Chronicle of Higher Education, September 8, 2016, https://www.chronicle.com/article/What-Safe-Spaces-Really/237720.

270Morton Schapiro, “4 Myths about Safe Spaces at NU and Other Campuses,” chicagotribune.com, December 22, 2017, http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-safe-spaces-snowflake-myths-pc- university-universities-northwestern-university-morton-schapiro-1226-story.html.

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kinds of spaces for numerous, divergent activities. Safe spaces for solace and healing can coexist with public forums for expressive liberties and classroom spaces for critical inquiry. These spaces are compatible so long as the norms of one kind of space do not overdetermine those of other kinds of spaces.271 As John Palfrey points out, campuses can have both “brave spaces” and

“safe spaces.” According to Palfrey, brave spaces such as classrooms and public forums should be “learning environments in which the primary purpose of the interaction is a search for the truth, rather than support for a particular group of students, even insofar as some of the discussions will be uncomfortable for certain students.”272 In contrast, safe spaces such as dorm rooms and affinity groups should be “environments in which students can explore ideas and express themselves in a context with well-understood ground rules for the conversation.”273

Palfrey remarks that “most campuses do, in fact, provide a combination of safe spaces and brave spaces for students.”274

A recent report on campus free speech by PEN America pushes considerations about campus safe spaces in a fruitful direction by distinguishing between campuses as safe places and safe spaces on campus. The report’s elucidation of this distinction is worth quoting at length:

While campuses should enable and even support safe spaces established by students— such as clubs, organizations, or even small gathering areas based on common themes and lifestyles—the campus as a whole, while physically safe, should be intellectually and ideologically open. A physically safe place—like a safe town, a safe school, or a safe park—is one designated for a distinct purpose (residential, educational or recreational, for

271Tammy La Gorce notes that the University of Chicago recently ranked number one in terms of “20 Great Value Colleges with Safe Spaces” despite the university’s recent statement that it does not condone safe spaces. See Tammy La Gorce, “Oh, You Mean That Safe Space,” The New York Times, November 4, 2016, sec. Education Life, https://www.nytimes.com/2016/11/06/education/edlife/oh-you-mean-that-safe-space.html. Campus safe spaces are not necessarily at odds with Chicago’s commitment to academic freedom and critical inquiry.

272John Palfrey, Safe Spaces, Brave Spaces: Diversity and Free Expression in Education (Cambridge, MA: The MIT Press, 2017), 20.

273Ibid., 21.

274Ibid., 28.

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example) that also has the quality of being safe, as in free of danger. A safe space, on the other hand, as students use the term, is closer to something purpose-built for safety—an environment where the parameters are constructed with safety as a prime objective, more like the way the terms “safe house” or “safe zone” are used. While safe spaces serve a purpose, the campus as a whole is better conceived as a safe place. Safe spaces on campus should be entered into voluntarily by students wishing to associate with a certain group, not created or imposed to exclude unwelcome views. In general, safe spaces should be places to visit and spend time socializing, recharging, venting, enjoying solidarity, and making joint plans rather than places to dwell day in and day out to the exclusion of different views and experiences. Safe spaces should consist of constellations of the likeminded who converge for shared purposes, rather than physical rooms or centers where ideological conformity is enforced.275

This perspective rightly affirms the complexity of the campus setting: as open places, campuses can have safe spaces without being reduced to safe spaces. It also suggests that campus safe spaces should consist of voluntary associations (“constellations of the likeminded”), not physical spaces designated as safe spaces.276

My own perspective on campus safe spaces generally comports with this perspective. The need that students have for safe spaces should be met mainly through voluntary association(s).

Some students may describe the associations to which they belong as safe spaces, but the fact is that voluntary associations predate safe space discourse. Voluntary associations composed of members with shared interests, beliefs, or identities are nothing new, and contemporary safe space discourse adds little to how we conceptualize the functions and purposes of voluntary associations. Such associations have had and continue to have numerous functions and purposes, one of which may be to provide their respective members with a so-called safe space. Briefly stated, my position is that universities should let students form voluntary associations and make their campuses accessible to these associations. This does not mean, however, that universities

275“And Campus for All: Diversity, Inclusion, and Free Speech at U.S. Universities” (PEN America, October 17, 2016), 68, https://pen.org/and-campus-for-all-diversity-inclusion-and-free-speech-at-u-s-universities/.

276Ibid.

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should create designated safe spaces on campus.277 Indeed, it seems odd for universities to create physical, designated safe spaces that are exclusively for students of a certain status/identity while simultaneously sanctioning (some) student groups organized around a shared set of beliefs or status for being exclusive.278

In terms of neighborliness, it is unproblematic that students seek out safe spaces through voluntary association. But it is problematic when a group of students claims the campus as their safe space with the intent of excluding other persons or groups from campus or policing the private activities of their neighbors. This claim confuses a home within a neighborhood with the neighborhood itself. The campus is more fittingly conceived as a neighborhood, not as a home solely for a particular group. Student groups committed to neighborliness should affirm the necessary complexity of this neighborhood.

Tempering Expressive Conduct and Disruptive Tactics with a Neighborly Ethos

While peaceful protest, assembly, and other forms of expressive collective action should generally be permitted and even encouraged on college campuses, neighborly considerations should shape the manner in which student groups engage in such expressive actions— particularly when these actions are aimed at other student groups. Student groups should have ample freedom to express their viewpoints and to vigorously criticize opposing viewpoints, but

277None of the arguments in my dissertation support the creation of designated, brick-and-mortar safe spaces on campus that are exclusively for students of a particular identity/status. One problem with safe spaces (understood in this sense) is that universities validate and feed student demands for such spaces once they create a safe space exclusively for students of a particular status/identity. In practice, it seems difficult if not impossible to satisfy these demands. As an example, after UNC-Chapel Hill created a space exclusively for black students, members of the Latinx community demanded that the university create a center for the Latinx community. A fuller critique of safe spaces is beyond the scope of this chapter.

278If voluntary associations composed of like-minded students function as safe spaces (among other things) for students, current RSO policies inhibit this function by sanctioning and displacing some such associations.

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their expressive activities should be informed and tempered by a neighborly ethos. This ethos should include what Luke Bretherton describes as a “convivial interest” in “maintaining friendly relations” among neighbors.279 Neighbors have a shared interest in fostering friendly ties with each other regardless of whether they share similar worldviews.

A neighborly ethos reflective of this shared interest should dissuade rival student groups from engaging in expressive activities intended to provoke, vilify, offend, and demean each other. It should encourage student groups to discover more tactful ways to conduct their respective expressive activities on campus. In practice, this means that a fundamentalist Christian student group might refrain from parading around campus with banners proclaiming that God hates gay people even if this expressive message reflects their sincerely-held religious convictions. A pro-Palestinian student group might think twice about posting signs and flyers throughout campus that equate Zionism with Nazism.280 Student groups might reconsider hosting provocative guest speakers known for intentionally using inflammatory language.281 Student groups conscious of their neighbors certainly would not spread racist flyers on campus meant to intimidate or demean student-neighbors of a particular race.282

279Bretherton, Resurrecting Democracy, 95.

280See, e.g., “Anti-Israel Activity Prevalent on Massachusetts Campuses This Year,” Anti-Defamation League New England (blog), November 21, 2014, https://newengland.adl.org/anti-israel-activity-prevalent-on-massachusetts- campuses-this-year/.

281See, e.g., Lili Johnston, “Protest and Counter-Protest to Be Held against ‘Change My Mind’ Speaker Steven Crowder – SMU Daily Campus,” SMU Daily Campus, March 22, 2018, https://www.smudailycampus.com/news/protest-and-counter-protest-to-be-held-against-change-my-mind-speaker- steven-crowder. For an example of a student group inviting and then voluntarily disinviting a controversial speaker, see Conor Friedersdorf, “A Mentor’s Advice to UCLA’s College Republicans,” The Atlantic, February 20, 2018, https://www.theatlantic.com/politics/archive/2018/02/a-mentors-sage-advice-for-uclas-campus-republicans/553724/.

282Student groups seem less inclined to post racist flyers, but campus outsiders such as white supremacist groups continue to post such flyers at college campuses across the United States. See Tovia Smith, “As White Supremacists Push Onto Campuses, Schools Wrestle With Response,” NPR.org, May 12, 2017, https://www.npr.org/2017/05/12/527985172/as-white-supremacists-push-onto-campuses-schools-wrestle-with- response.

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At the same time, a neighborly ethos should inform the (re)actions of student groups who feel threatened, triggered, or offended by the expressive acts of other student groups. Such groups should generally refrain from shouting down guest speakers,283 shutting down events hosted by other groups,284 destroying campus newspapers,285 or vandalizing flyers and displays.286 While these disruptive tactics may be effective and may seem necessary from a political activism standpoint, they are antithetical to the cultivation of friendly ties among campus neighbors. They are likely to corrode neighborly relations, heighten inter-group animosity, and make the campus a less livable place as a result. Student groups should thus weigh the trade-off between aggressively countering the viewpoints and activities of other student groups on the one hand and cultivating neighborly relations with these groups on the other hand. In the interests of easing campus tensions and de-escalating inter-group conflict, student groups should try to cultivate neighborly ties even with those groups whose values, viewpoints, or activities they find distasteful, odd, or wrong-headed. This can certainly be

283See, e.g., Jeremy Bauer-Wolf, “ACLU Speaker Shouted Down at William & Mary,” Inside Higher Ed, October 5, 2017, https://www.insidehighered.com/quicktakes/2017/10/05/aclu-speaker-shouted-down-william-mary; Peter Beinart, “A Violent Attack on Free Speech at Middlebury,” The Atlantic, March 6, 2017, https://www.theatlantic.com/politics/archive/2017/03/middlebury-free-speech-violence/518667/; Emily Fagan and Myles Sauer, “Protesters Crash Effective Altruism Debate,” The Martlet, March 6, 2017, http://www.martlet.ca/protesters-crash-effective-altruism-debate/.

284See, e.g., Jaschik, “Anti-Israel Protests Disrupts Film at UC Irvine”; Scott Jaschik, “Who Gets Shouted Down on Campus,” Inside Higher Ed, February 26, 2018, https://www.insidehighered.com/news/2018/02/26/event-sponsored- jewish-and-pro-israel-groups-university-virginia-disrupted-and.

285See, e.g., Linh Tah, “Student Newspapers Destroyed over Ad,” Des Moines Register, September 26, 2014, https://www.desmoinesregister.com/story/news/crime-and-courts/2014/09/26/times-delphic-agape-pregnancy- destroyed/16287011/; Will Creeley, “Student Press Law Center: Another Semester, Another Rash of Newspaper Theft,” FIRE (blog), December 9, 2016, https://www.thefire.org/student-press-law-center-another-semester-another- rash-of-newspaper-theft/.

286See, e.g., Eugene Volokh, “UC Santa Barbara Professor Steals Young Anti-Abortion Protester’s Sign, Apparently Assaults Protesters, Says She ‘Set a Good Example for Her Students,’” Washington Post, March 20, 2014, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/20/uc-santa-barbara-professor-steals-young- anti-abortion-protesters-sign-apparently-assaults-protesters-says-she-set-a-good-example-for-her-students/; “Anti- Israel Activity Prevalent on Massachusetts Campuses This Year.”

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challenging, and it often requires a good deal of neighborly tolerance, forbearance, and give-and- take. As discussed earlier, it also calls for members of rival student groups to recognize each other as neighbors who share common ground if little else. In some cases, student groups might simply avoid groups they find obnoxious or offensive.

None of this is to say that a neighborly ethos should chill expressive activities and political activism on campus. Freedom of expression holds an important place within the campus setting and is often integral to institutions of higher education. At least at public colleges and universities, students have First Amendment rights that enable them—in concert with others—to criticize, challenge, and oppose various ideas, persons, and groups on campus. These rights are critical and worthy of protection. But student groups committed to neighborliness should not engage in expressive activities with the intent of offending or provoking their neighbors simply because they may have the right to do so. Neighborliness operates according to a different logic than that of rights: it speaks to how student groups ought to treat each other once they see each other as neighbors, not to how they can treat each other as a matter of legal right. The distinction between appropriate conduct and legally-permissible conduct is an important one, and the neighborly ethos I have prescribed fits firmly within the former category. As neighbors conscious of the place where they live and of the other people who live there, student groups should transcend the impulse to offend or provoke their neighbors simply because they might have the right to do so.

A recent incident at Southern Methodist University offers a heartening example of a student group acting according to a neighborly ethos; this example should render some of the above prescriptions more concrete. In the spring of 2018, the SMU College Republicans invited provocateur and political commentator Steven Crowder to speak on campus. In response,

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members of OUTlaw—an LGBTQ+ group of SMU law students—expressed concerns about

Crowder’s use of homophobic language and argued that inviting Crowder would undermine dialogue rather than facilitate it. OUTlaw also took issue with a poster the College Republicans created to advertise the event because the poster included a derisive epithet. (The College

Republicans responded by revising the poster so that the epithet was no longer visible.) At the same time, however, OUTlaw affirmed its commitment to free speech and “emphasized that the group in no way objects to Crowder’s legal right to speak on campus, or to College Republicans’ right to invite him.”287 During the Crowder event, OUTlaw held a peaceful protest without blocking entry to the event or shutting it down. Viewed in terms of neighborliness, OUTlaw displayed a neighborly ethos by interacting constructively with neighboring student groups, resisting the impulse to shut down a campus event it found offensive, refusing to deride the group hosting the event, and engaging in peaceful expressive action. OUTlaw also respected the rights of its fellow neighbors while encouraging its neighbors to move beyond a purely rights- driven mindset. As OUTlaw’s president put it: “the right to say something doesn’t mean you should.”288

Some colleges and universities have well-reasoned policies that encourage students to engage in lively expressive activities but also discourage them from disrupting or obstructing the activities of others on campus.289 Such policies might help to foster the neighborly ethos I have

287Alex Petsche, “LGBT Students Protesting Steven Crowder Speaking Event at SMU,” D Magazine, March 22, 2018, https://www.dmagazine.com/frontburner/2018/03/steven-crowder-smu-dallas/. See also Johnston, “Protest and Counter-Protest to Be Held against ‘Change My Mind’ Speaker Steven Crowder – SMU Daily Campus.”

288Lili Johnston and Keagan Snively, “Stephen Crowder Films Live Broadcast of Louder with Crowder on SMU Campus,” SMU Daily Campus (blog), March 28, 2018, https://www.smudailycampus.com/news/stephen-crowder- films-live-broadcast-of-louder-with-crowder-on-smu-campus.

289See, e.g., “Event Disruption Protocol,” Brown University, accessed November 7, 2018, https://www.brown.edu/about/administration/policies/event-disruption-protocol.

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proposed. But student groups should generally adhere to a neighborly ethos in their interaction with each other even if the policies of their host institution allow conduct antithetical to this ethos. Student groups should also recognize that there are pragmatic reasons for practicing neighborliness. Groups that eschew neighborliness—whether by deliberately provoking their campus neighbors or by responding violently when provoked—often incur closer administrative scrutiny. Moreover, their unneighborly practices often come at a high financial cost for their host universities. For instance, universities sometimes pay millions of dollars in security fees for a campus event involving a controversial speaker.290 The point is not to fault student groups for these expenses but to observe that unneighborliness can be expensive.

A Reoriented Standard for Evaluating Student Groups

The considerations I have offered regarding neighborliness feed into a new evaluative standard for determining which student groups deserve a place on campus and within the campus community. This standard shifts attention from a student group’s formal organizational structure—including its membership criteria—to its actual orientation and behavior toward other student groups and the campus community more generally. The guiding intuition is that a student group’s lived commitment to neighborliness should carry more weight than its formal characteristics. Student groups should earn their place on campus by means of such a lived commitment, not merely or mainly by aligning their formal bylaws with university policies.

This standard distinguishes between a group’s internal (private) organizational characteristics and its external (public) conduct. It eschews efforts to draw conclusions about the

290For example, the University of California, Berkeley spent almost $4 million in security during a month of free speech events in 2017. The university spent $2.7 million in security for a “Free Speech Week” event that was ultimately canceled. See Jocelyn Gecker, “UC Berkeley Spent $4M for Security on Free Speech Events,” NECN, February 6, 2018, http://www.necn.com/news/national-international/UC-Berkeley-Spent-4-Million-for-Free-Speech- Event-Security-472955423.html.

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latter based on the former. It also reflects a wariness of associational classifications more generally.291 In an empirical sense, it is difficult to predict how a student group will interact with others on campus based purely on its formal characteristics. A student group with unpopular, controversial internal values or membership requirements might prove to be a good neighbor in practice. The group might engage constructively with other campus groups. It might show a real, sustained commitment to cultivating neighborly ties with other groups and making the campus a more livable place. In contrast, a student group with popular, uncontroversial formal characteristics might prove to be an indifferent, antagonistic, or appetitive neighbor. It might show a complete disregard for the campus, refuse to share the campus with others, or repeatedly disrupt the private activities of neighboring student groups. Moreover, a student group with purportedly exclusive membership criteria might support an inclusive campus environment open to a diversity of student groups. In contrast, a student group with purportedly inclusive membership criteria might undermine an inclusive campus environment by attempting to exclude rival student groups from campus and campus life. The basic point here is that there may be little or no correspondence between a student group’s internal features and its external orientation and conduct.

Additionally, it is helpful to view and evaluate student groups from an ecological perspective. Student groups at a particular campus should be viewed as members of a pluralistic associational ecology.292 They should then be partially evaluated in terms of their respective

291Nancy Rosenblum takes issue with general classifications of associations. She elucidates the “mixed makeup” of most groups and argues that “there are always alternative understandings of an association’s nature and purposes, and competing classifications.” Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America, 6.

292I adapt the phrase “associational ecology” from Warren, Democracy and Association, 208. Warren theorizes about the democratic effects of voluntary associations within an associational ecology and prescribes a democratic associational ecology. However, Warren does not theorize about associational ecologies within the specific context

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influence on the broader campus ecology and the amount of power they wield. Not every student group should be expected to play the same role within this ecology or to exert the same influence. No single group should wield so much influence that it monopolizes the campus ecology or crowds out other groups. From an ecological perspective, it is difficult to tell what effects a student group will have within the broader campus ecology based on its internal purposes alone. As Mark E. Warren observes in his work on democracy and association, there is an important distinction between an association’s purpose(s) and its effects or functions.293 An association might not have democratic purposes but might still produce democratic effects or perform democratic functions. The converse might also be true. Within the campus context, a student group’s purpose is a weak indicator of its effects within the broader campus ecology. If a university wanted to cultivate a democratic associational ecology on its campus, for instance, it would need to consider the various effects of student groups rather than their purposes. My intention here, however, is not to theorize about what effects would be conducive to a healthy campus ecology but to suggest that a student group’s effects matter more than its purposes from an ecological perspective.

The above standard is not meant to be comprehensive; neither is it meant to replace all other evaluative standards. But it is meant to challenge prevailing evaluative standards used to determine which student groups merit campus access. As discussed in chapter two, universities routinely employ standards that are hyper-attentive to the formal membership criteria of student groups but much less attentive to other features of student groups. As a result, student groups that

of the university as I suggest we should. The word “ecology” alerts us to the presence and interdependence of a plurality of associations within the shared space of the university campus.

293Warren, 37.

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may be committed to neighborliness are denied full campus access and marginalized from campus life based solely on their formal membership criteria. Meanwhile, student groups that may be opposed to neighborliness are granted campus access based purely on their formal (and perhaps meaningless) compliance with university nondiscrimination or all-comers stipulations.

As a way of reorienting how student groups are evaluated, the standard I have proposed shifts attention from the formal, internal characteristics of student groups to their actual treatment of neighboring student groups and other members of the campus community. This standard allows student groups more control over their internal purposes and structures. At the same time, it assigns more weight to neighborliness and expects student groups to practice neighborliness irrespective of their internal purposes and structures. A key implication is that universities should focus on how student groups interact with each other, not on the internal rules governing these groups. Universities should encourage neighborly interaction among student groups—without reaching into the internal affairs of these groups—in order to cultivate livable and pluralistic campuses.

Conclusion

I have prescribed neighborliness as a place-specific means of navigating inter-group differences on university campuses without disrupting meaningful association or dampening campus pluralism. A twofold intuition has been that the student groups nested within a particular campus need to discover ways to live together and that neighborliness—based upon mutual ground and spatial proximity—provides one such way. While the neighborly practices I have proposed may be rudimentary, they strike me as underappreciated on many college and university campuses today. These practices should enable a diversity of student groups to live together without requiring them to dilute their internal values or subscribe to a common

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worldview. Universities can and should foster neighborly practices among student groups without encroaching upon the internal affairs of these groups.

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CHAPTER FIVE

CONCLUDING REMARKS

The twofold purpose of this dissertation has been to motivate a sociospatial perspective and to evaluate contemporary campus issues involving student groups and their host institutions from this perspective. I have drawn on a wide range of scholarly insights in order to elucidate the complexity of these campus issues. Some of these insights have stressed the importance and dynamics of voluntary association. Other insights have shed light on how public liberties and public spaces intersect. Still others have uncovered how spatial tactics effectuate social and political control. My intuition has been that blending these insights equips us to address the campus challenges at the center of this dissertation in a more satisfactory, rounded manner.

Several key moves have given this dissertation a sharper focus and a more distinctive character. First, I merged considerations about voluntary associations and concrete social spaces, proposing that the activities of these associations have a necessary spatial component. I then suggested that the practice of meaningful association hinges upon amenable, accessible spaces.

Second, I zeroed in on university campuses, which are socially and spatially complex places that have received insufficient attention from political theorists. To narrow the scope of analysis even further, I focused on associational issues that unfold beyond the university classroom.

Third, I stressed the importance of meaningful association (as something distinct from speech) for student groups in order to countervail common tendencies to either subsume the associative interests of student groups under speech interests, misconstrue associative interests as speech interests, or ignore these associative interests altogether. At least in the U.S., the speech

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interests of students and student groups receive ample and ongoing attention while their associative interests often receive little or none. Relatedly, I offered a conception of meaningful association that is not informed or constrained by common First Amendment doctrines such as expressive association doctrine. While expression is often integral to meaningful association, meaningful association encompasses more than expression. Students have important reasons for practicing meaningful association (e.g., finding belonging and purpose) that are distinct from their desire to express a viewpoint.

Fourth, I explained how RSO policies in particular function as sociospatial regulations. I argued that these policies can impose unfair burdens on meaningful association for a diversity of student groups. These burdens become more visible—and less defensible—once we grasp the importance and dynamics of meaningful campus association. I focused on RSO policies not only because of their pervasiveness and detrimental effects but also because their normative underpinnings need revision. I also envisaged capacious pluralism as a campus-specific conception of pluralism that should guide universities in their treatment of student groups.

As a final move, I proposed a few neighborly practices that could help student groups as they learn to live together in the midst of inter-group tensions and differences. In discussing neighborliness, I shifted the focus from the internal characteristics of student groups to their interactions with each other and the campus environment more generally. I argued that student groups seeking a place on campus should practice neighborliness irrespective of their internal characteristics. I also suggested that universities should encourage neighborliness among student groups without unduly encroaching upon their internal affairs.

I conclude this dissertation by offering six prescriptions that encapsulate some of the central ideas presented in chapters two through four. Some of these prescriptions are followed by

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acknowledgments and clarifying examples. I then recommend two already-existing practices that could make campuses more pluralistic, public, and democratic places.

Concluding Prescriptions and Acknowledgments

Prescription One: In order to enable meaningful campus association, universities should respect the coherence interests of student groups, recognizing that student groups need to maintain cohesion between their respective purposes, values, and membership/leadership. Identificatory student groups in particular should have substantial autonomy in maintaining their coherence interests. Outsiders who find the purposes, values, and membership/leadership standards of a particular identificatory student group to be abhorrent or wrong-headed rarely have compelling reasons for joining or leading such a group. In contrast, identificatory student groups often have compelling reasons for preventing such outsiders from joining or leading their groups.

A few examples should clarify this prescription and its implications. As a first example, consider Black Campus Ministries at San Diego State University. The group provides “a space for black students to explore the relevance of God as they pursue justice and reconciliation both within and outside of the black community on the campus of San Diego State University (SDSU) by creating an environment that is supportive, but challenging for students of African descent on the campus of San Diego State University, organizing programs that enhance an individual’s spiritual growth, social support, and personal confidence, and exposing the students of African descent to role models that exemplify and glorify Christ in their everyday lives.”294 Given its core purpose, the group should be able to restrict its membership and/or leadership to students of

294“Recognized Student Organizations | San Diego State University,” accessed February 24, 2019, https://stuapp.sdsu.edu/rso/search/list.

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African descent. The group might decide to open its membership and/or leadership to students who are not of African descent, but this decision should be made internally.

As a second example, consider student chapters of Christian Legal Society. The stated purpose of these chapters is “to develop and maintain a vibrant Christian law student presence on campus, enabling its members, individually and as a group, to love the Lord with their whole beings--hearts, souls, and minds--and to love their neighbors as themselves.”295 Consonant with this purpose, officers are required to subscribe to the CLS Statement of Faith and to affirm the

CLS Community Life Statement.296 Given the cohesion between their core purpose and their belief/conduct requirements, student chapters of CLS should be able to restrict leadership to students who adhere to the stipulated belief/conduct requirements. Students who reject these requirements do not have compelling reasons to lead the group and can simply join or form other student groups.

The Women of Color Initiative at the University of California Hastings College of the

Law provides a third example. The group defines itself as “a safe and confidential space for self- identified women of color at UC Hastings College of Law” with the mission to “create a support system for self-identified women of color law students so that each woman of color thrives while at law school and thereafter.”297 Given that the group is “for self-identified women of color law students,” it should be able to restrict its membership and/or leadership to self-identified women

295See documents at https://www.clsnet.org/document.doc?id=380.

296“Community Life Statement - Christian Legal Society,” accessed December 2, 2018, https://www.clsnet.org/page.aspx?pid=494.

297“Women of Color Initiative at UC Hastings College of the Law (WOCI).”

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of color law students. The group might decide to open its membership and/or leadership to law student who are not self-identified women of color, but this decision should be made internally.

Several acknowledgements are in order. First, as seen in the above examples, there should be a correspondence between the purposes, values, and membership/leadership criteria of a student group. A group’s membership/leadership criteria might warrant scrutiny when it does not align with the group’s core purposes and values. Given their respective purposes, Black

Campus Ministries would not have a compelling reason for restricting its membership or leadership to men, but the Women of Color Initiative would have a compelling reason for restricting its membership or leadership to (self-identified) women. A lack of cohesion between a group’s purposes and its membership/leadership criteria could be evidence of insidious discrimination.298 But a student group’s selection of members and leaders who align with its core purposes should not be taken as proof of such discrimination.

Second, the most alarming feature of a student group might be its purposes and values rather than its membership/leadership criteria. Consider a “white student union” like the one founded (unofficially) at Georgia State University. The group’s purpose is to “provide a place for like-minded White students to come together and not only celebrate their common

European/Euro-American cultures, but to discuss issues that affect white people in the world today.”299 The presence of such a student group on campus should elicit concern. But the main cause of concern should not be the group’s membership/leadership criteria but its core purpose and values. The group would be no less disturbing if it were to open its membership and

298Cécile Laborde defines “insidious discrimination” as “discrimination undertaken for pretextual reasons that have nothing to do with the association’s commitments.” Laborde, Liberalism’s Religion, 188.

299Hunter Stuart, “Unofficial White Student Union Forms at Georgia State University,” Huffington Post, August 1, 2013, sec. College, https://www.huffingtonpost.com/2013/08/01/white-student-union-georgia-state- university_n_3689174.html.

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leadership to all students regardless of race. It may, in fact, have formally open membership and leadership.

It should be noted that university policies aimed at making student groups more inclusive do not resolve or even address concerns about white supremacist student groups or other student groups with malignant ideologies. Perhaps one reason for this is that, under current First

Amendment free speech doctrine, public colleges and universities in the U.S. are not allowed to discriminate against a student group based on the group’s viewpoint. This means that a student group committed to white supremacy could probably secure official recognition at a public college or university so long as it complied with the formal stipulations attached to recognition, including membership/leadership stipulations. My purpose here, however, is not to consider whether public colleges and universities should be allowed to discriminate based on viewpoint.

This issue has been discussed extensively by other scholars and has not been a focal point of this dissertation.300

Third, I suggest that public and private universities alike should respect the coherence interests of student groups absent clear, compelling reasons or commitments to the contrary. The coherence interests of student groups are no less important at private universities than at public ones. Admittedly, I have not delved into questions about whether universities should be legally obligated to respect the coherence interests of student groups. But it does seem that student groups need legal protection in order to safeguard their integrity from undue university encroachment.

300See, e.g., Chemerinsky and Gillman, Free Speech on Campus; Whittington, Speak Freely: Why Universities Must Defend Free Speech.

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Prescription Two: Universities should make their campuses generally accessible to student groups, recognizing that campus space is essential to meaningful association. As much as possible, campus spaces should enable both the private and public activities of student groups.

This means that student groups should have easy, affordable access to meeting rooms and other on-campus spaces. But this does not mean that universities need to create designated, brick-and- mortar safe spaces for particular student groups. Access to campus spaces integral to meaningful association should not be construed as a privilege, benefit, or amenity.

Prescription Three: Universities should draw sharp, clear distinctions between student groups and their own institutional structures, programs, and operations, recognizing that student groups are not only distinct from universities but also markedly different types of entities than universities. Universities should not confuse student groups with university forums or resources.

Universities that characterize student groups as official units of their institutions risk compromising the integrity of student groups as well as their own institutional integrity.

Prescription Four: Universities should revise their practices of sociospatial campus governance—and the assumptions that inform these practices—in light of the above considerations. In particular, universities should revise their registered student organization programs. They should then apply the policies related to these programs in a fair, even-handed manner rather than targeting certain student groups through the selective application of their policies. They should also avoid using their registered student organization programs to co-opt or instrumentalize student groups.

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I offer two acknowledgments related to this prescription. First, a student group’s exercise of meaningful association on campus should not intrude upon the meaningful association of other groups, inflict physical harm, or disrupt normal campus operations. On this point, Healy v.

James offers useful guidance: “Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.”301

Second, I recognize that universities may have compelling reasons for employing time, place, and manner regulations in order to ensure campus safety, protect property, and enable normal campus operations.302 These regulations should always be used carefully and transparently. They should not be used to chill expressive activities, target particular student groups, or shut down unpopular or dissenting viewpoints.

Prescription Five: Universities should respect student groups as major sources of the plurality constitutive of campus pluralism, recognizing that the distinctive viewpoints, values, frames of reference, and practices of these groups are the basic ingredients of genuine pluralism. An institutional commitment to campus pluralism should enable meaningful association for a diversity of student groups on campus. Such a commitment should restrict—rather than rationalize—institutional interference with the internal purposes, structures, and practices of student groups.

301Healy v. James, 408 U.S. 169 (U.S. 1972) at 189.

302A time, place, or manner restriction is a “restriction on the time, place, or manner of expression that is justified when it is neutral as to content and serves a significant government interest and leaves open ample alternative channels of communication [an injunction excluding demonstrators from the front of the building was held to be a reasonable time, place, or manner restriction] called also time, place, and manner restriction.” “Time, Place, Or Manner Restriction,” Findlaw, accessed December 2, 2018, https://dictionary.findlaw.com/definition/time-place-or- manner-restriction.html.

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Two acknowledgements are in order. First, a university might commit to capacious campus pluralism but take issue with particular student groups whose purposes or viewpoints are at odds with its core institutional values. Its institutional values might therefore color its enactment of capacious campus pluralism. In general, however, I suggest that universities should adopt a tolerant posture even toward dissenting or nonconforming student groups. The presence of such groups on campus could place healthy limits on the university’s institutional power, prevent the university from overdetermining the campus environment, and ensure that the university models its own institutional values. Student groups at odds with university values are often most vulnerable and most in need of protection from the university.

Second, I have not argued that all universities must commit to capacious campus pluralism but that they should commit to it. Capacious campus pluralism is a prescription, not a mandate. Universities should not be compelled to enact capacious campus pluralism, but they should be encouraged to do so. Overall, I suggest that public and private universities alike should foster capacious campus pluralism absent transparent, compelling reasons or commitments to the contrary.

Prescription Six: Universities should foster neighborliness among student groups by commending neighborly norms and practices and maintaining the sociospatial complexity of the campus setting. In their assessment of student groups, universities should assign more weight to a group’s actual and ongoing commitment to neighborliness and less weight to its formal organizational characteristics (e.g., membership criteria).

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Final Considerations

I conclude by recommending two constructive possibilities—“placemaking” and

“common life” politics—that are compatible with the arguments presented in the previous chapters. Though distinct, placemaking and common life politics are similar in that they are place-based, sensitive to local cultures, amenable to plurality, nonpartisan, and practice-driven.

My purpose here is not to detail the philosophical or practical features of either placemaking or common life politics. Rather, my purpose is to suggest that placemaking and common life politics can make campuses more vibrant, meaningful places while also fostering a sense of community among the people and groups attached to these places.

Project for Public Spaces (PPS), which has been a leading proponent of placemaking for decades, offers the following overview of placemaking:

Placemaking inspires people to collectively reimagine and reinvent public spaces as the heart of every community. Strengthening the connection between people and the places they share, placemaking refers to a collaborative process by which we can shape our public realm in order to maximize shared value. More than just promoting better urban design, placemaking facilitates creative patterns of use, paying particular attention to the physical, cultural, and social identities that define a place and support its ongoing evolution.303

Understood in this sense, a key feature of placemaking is that it is a place-led, community-based process. According to PPS, this process “turns proximity into purpose, and the planning and management of shared public spaces into a group activity that builds social capital and shared values. Local participants in this process feel invested in the resulting public space, and are more likely to serve as its stewards.”304 Community stakeholders do not merely give input to experts such as designers and architects. Rather, they lead the entire process of placemaking, and the

303“What Is Placemaking,” Project for Public Spaces, accessed December 2, 2018, https://www.pps.org/category/placemaking.

304“Placemaking: What If We Built Our Cities around Places?” (Project for Public Spaces, October 2016), 20.

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success of placemaking hinges on their ongoing engagement. This community-led process corresponds with an important observation made by Stephen Carr: that “meaningful connections between people and places are promoted by user participation in design and management.”305

Project for Public Spaces has inspired placemaking efforts within thousands of communities, including some of Detroit’s neighborhoods. For instance, the citizen group People for Palmers Park recently collaborated with the Detroit Recreation Department to “transform an historic but long-neglected green space into a bustling neighborhood center.”306 The vitalization of Palmers Park hinged on the sustained efforts of neighborhood volunteers; these volunteers did the actual work of transforming Palmers Park into a meaningful place. The park’s transformation was also attuned to specific concerns raised by people living in the surrounding neighborhoods.

Universities including Harvard University and Wayne State University have also fostered placemaking on their campuses. In collaboration with Project for Public Spaces, Harvard

University began the Common Spaces Initiative in 2008 with the view of “transforming its public spaces into gathering places that could connect the campus and its students with the larger

Harvard Square neighborhood.”307 As part of this initiative, members of the Harvard community worked with PPS to transform “The Plaza” into a lively social hub where different groups could gather, interact, and develop connections. Whereas “The Plaza” had previously been a mere utility that people passed through to get from one place to another on Harvard’s campus, it is now an “open and integrated gathering place for undergraduates, grad students, faculty, staff, and

305Carr et al., Public Space, 204.

306“Detroiters Work: The Lighter, Quicker, Cheaper Regeneration of a Great American City,” Project for Public Spaces, November 9, 2013, https://www.pps.org/article/detroiters-work-the-lighter-quicker-cheaper-regeneration-of- a-great-american-city.

307“Meet Me at The Plaza: New Seats, New Scene at Harvard University,” Project for Public Spaces, March 18, 2015, https://www.pps.org/blog/meet-me-at-the-plaza-new-seats-new-scene-at-harvard-university/.

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the larger community.”308 As another example, Wayne State University formed a Placemaking

Steering Committee in 2014 in order to make its campus a better place and to help revitalize

Midtown Detroit. 309 The university has worked to engage at least ten percent of its students, faculty, staff, and alumni in its placemaking endeavor. It has also formed a team of student leaders to help lead its placemaking initiatives. Moreover, Wayne State University has successfully used Neighborland, which is a communications platform, as a tool to broaden and heighten engagement among campus stakeholders.

Campus placemaking initiatives can help universities create public places (e.g., campus squares) on their campuses that attract all kinds of people and foster a sense of connection. Such on-campus gathering places can “bridge the gap between the distinct and diverse communities within the academic institution” and also “help build or heal town-gown relations.”310 I suggest that campus placemaking could benefit students and the groups they form in multiple ways.

Members of diverse student groups are more likely to encounter each other when there are gathering places on campus that invite such encounters. The encounters that unfold within these places could reduce some of the friction between rival student groups. Moreover, as students actively participate in placemaking, they can develop a sense of attachment to (and responsibility for) their campus. They can also forge neighborly ties with other stakeholders who are similarly invested in creating better public places on campus. These neighborly ties are generated and sustained through the collaborative process of placemaking. They are rooted in a shared

308Ibid.

309“Placemaking - Economic Development,” Wayne State University, accessed January 16, 2019, http://economicdevelopment.wayne.edu/placemaking.php.

310Phil Myrick, “PPS Goes Back to College,” Project for Public Spaces, November 30, 2005, https://www.pps.org/article/campusesprogram.

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commitment to a particular place, not in a shared political ideology, social identity, or associational affiliation.

I am cautiously optimistic that more institutions of higher learning will recognize the benefits of placemaking and find ways to involve students in their placemaking endeavors.

Placemaking is not a magic pill, but it could strengthen students’ sense of place and help to cultivate campus neighborliness. A key feature of campus placemaking is that it enables diverse people and groups within a particular campus to develop neighborly ties and a sense of community without requiring them to share similar worldviews or achieve a moral consensus. It is therefore compatible with the conceptions of meaningful association and capacious campus pluralism presented in chapter two.

In addition to placemaking, places of higher education might benefit from what Luke

Bretherton has described as “the politics of a common life.” Politics understood in this sense is place-based, practice-driven, premised upon plurality, and rooted in institutions such as churches and universities, which help to create and structure the space of politics.311 It is also attuned to the dynamics of rival universalisms, power, conflict, and anger.312 An aspirational feature of common life politics is that it “generates a common world of meaning and action between diverse traditions in a particular place” through non-statist, democratic practices, such as those exemplified in broad-based community organizing.313 Diverse groups and institutions build a

311See Luke Bretherton, Resurrecting Democracy: Faith, Citizenship, and the Politics of a Common Life (New York: Cambridge University Press, 2015), 192 (“What the rules and practices of organizing define is the space of politics: that is, the process through which to maintain commonality and recognize and conciliate conflict with others in the mutual pursuit of shared goods.”).

312Ibid., 179.

313Ibid. For an account of some of these democratic practices, as seen in the community organizing efforts of Citizens UK, see ibid., 111–76.

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common life by participating in “shared, reciprocal, and public work.”314 Their participation in this work enables them to identify mutual goods and interests—such as safer streets and better public spaces—specific to their time and place.315 It also equips them to take appropriate, effective action. Importantly, this work does not require participants to share a singular worldview, dilute their respective particularities, or engage in consensus-building. But it does require that they cultivate relations “characterized by mutuality and connected to a common world of meaning and action.”316 Through the democratic practices constitutive of common life politics, Bretherton suggests that “a common life can be forged and some kind of mutual identification crafted between individuals and groups dispersed by class, sexual orientation, religion, ethnicity, and legal status.”317

A salient feature of Bretherton’s common life politics is that it incorporates notions of neighborliness and helps to “neighbor” people and groups within a particular place through shared democratic practices. Bretherton remarks that,

Being a neighbor does not necessitate being either friends or denying differences and conflicts, but neither does it mean being wholly defined or overdetermined by them. Being a neighbor entails recognizing enmity and difference (and their consequences and costs) while at the same time acknowledging that ‘we’ exist in a common world of meaning and action and then acting in ways that broker a common life amid enmity and move toward reconciliation and reciprocity.318

While neighbors might be dissimilar and might not even like each other, Bretherton rightly points out that “a shared commitment to a particular place provides further grounds for common

314Ibid., 92.

315Ibid., 95.

316Ibid., 146.

317Ibid., 213.

318Ibid.

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action.”319 Common action is thus generated and sustained by a mutual commitment to a particular place, not by a shared ideology or partisan affiliation.

While the neighborly practices I recommended in chapter four are important, I think that additional practices are needed to constitute the people and groups within a particular campus as neighbors and mediate conflicts between them. Common life politics strikes me as an appealing way to cultivate relationships among rival student groups (and other campus stakeholders) without dampening capacious campus pluralism, further empowering university administrators, or naively expecting these groups to celebrate each other’s differences. Common life politics could render campuses more pluralistic and democratic places through shared political action rather than through administrative procedures, programs, and mandates. Moreover, common life politics seems suited to places of higher education because—as stressed in previous chapters— many people with mixed, multiple loyalties not only work but also live within these places.

Through common life politics, these people can learn to live together as neighbors on campuses that are pluralistic, complex, and dynamic.

At present, some civically-engaged institutions of higher learning in the U.S. train their students to engage in democratic practices constitutive of “public work,” which bears some resemblance to common life politics.320 Harry Boyte describes public work as “work with public meanings, purposes, and aspects” that consists of a “sustained effort by a mix of people who solve public problems or create goods, material or cultural, of general benefit.”321 Along with

319Bretherton, 95.

320On some of the differences between Bretherton’s conception of common life politics and Boyte’s conception of everyday politics and public work, see Bretherton, 327–28, n. 152.

321Harry C. Boyte, Everyday Politics: Reconnecting Citizens and Public Life (Philadelphia: University of Pennsylvania Press, 2004), xvii, 5. Public work is central to what Boyte refers to as “everyday politics,” which involves “ordinary people of different views and interests working together to define and to solve problems.” Ibid., xiii.

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organizations such as Campus Compact, universities including Augsburg University and

Denison University have fostered public work for years. For example, Denison University trains its students “to work with people they know, people they don’t know, and people they know but who see the world differently” and “to take effective action across lines of difference.”322 At

Denison University, public work develops students’ civic capacities, orients students toward public issues, and cultivates democratic ways of life without requiring students to give up their diverse associational attachments or to share the same moral values. Members of different student groups can learn to work across differences through their joint participation in public work and their shared interest in solving public problems. As a result, they can deepen their sense of community and make the campus a more vibrant public place. Denison University has also engaged in public work beyond its campus. For instance, it has worked with civic organizations and neighborhood associations to make the downtown square of Newark, Ohio a better public space.323

While public work has potential, university commitments to public work should complement rather than disrupt meaningful association and capacious campus pluralism.

Universities should avoid pressuring student groups to function as laboratories of democracy or re-tooling the internal structures of these groups to make them more democratic or public. They should also avoid subordinating student groups to a pre-determined, univocal conception of democracy. Indeed, one risk of public work is that universities might treat it as a program and

322Adam Weinberg, “Promoting Civic Agency and Free Speech on College Campuses,” Huffington Post (blog), February 15, 2017, https://www.huffingtonpost.com/entry/civic-agency-and-free-speech-on-college- campuses_us_58a4ad3be4b080bf74f0439e.

323Adam Weinberg, “A Civically Engaged College Contributes to Democratic Ways,” Denison University, December 1, 2017, https://denison.edu/campus/president/speeches/98028.

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then press student groups into the service of this program. Student groups should be encouraged to participate in public work—in part by finding common ground with other members of the campus community and displaying communicative intent toward them. But this should not require that student groups create open membership or leadership policies, dilute their respective particularities, forgo their private campus activities, or function as public spaces in miniature.

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APPENDIX: AN ANALYSIS OF HARVARD’S RECENT SANCTIONS POLICY

In May 2016, Harvard introduced a policy that would sanction students who belong to unrecognized single-gender social organizations (“USGSOs”), which include “final clubs,” fraternities, and sororities. The architect of the policy, College dean Rakesh Khurana, stressed that single-gendered organizations are simply not appropriate for Harvard.324 In voicing her support for the policy, Harvard president Drew Faust identified “exclusion and discrimination” as the fundamental issue with these final clubs.325 According to Khurana and Faust, unrecognized single-gender social organizations are problematic mainly because of their discriminatory membership practices. The primary purpose of the policy is to press single-gender social organizations into becoming coed in order to fix perceived gender inequities. A secondary purpose is to combat sexual assault. Based on a report released in March 2016 by Harvard’s Task

Force on the Prevention of Sexual Assault, Harvard administrators have alleged that final clubs are disproportionately associated with sexual assault.326 Although the factual basis for this allegation has since been questioned, some incidents of sexual assault have been tied to final clubs. After nineteen months of faculty debate, President Faust announced that Harvard would implement the policy introduced in May 2016. According to this policy, “current freshmen and their successors will be prohibited from serving as leaders of recognized social organizations and

324Theodore Delwiche and Noah Delwiche, “Unrecognized but Engaged,” The Harvard Crimson, March 30, 2015, http://www.thecrimson.com/article/2015/3/30/final-club-administration-khurana/.

325Andrew M. Duehren and Daphne C. Thompson, “With End of Year Approaching, Faust Sharpens Final Club Critiques,” The Harvard Crimson, May 5, 2016, http://www.thecrimson.com/article/2016/5/5/faust-criticizes-clubs- again/.

326The report on sexual assault is available at https://sexualassaulttaskforce.harvard.edu/Final-Report.

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clubs, or as captains of athletic teams, and from receiving the required endorsement for academic fellowships such as the Rhodes and Marshall scholarships, if they belong to a USGSO.”327

Since its introduction in 2016, Harvard’s policy has generated a great deal of controversy, debate, and commentary. The various motivations and justifications for the policy, as well as its visible effects and possible implications, have been discussed in hundreds of news articles, opinion pieces, and faculty motions, as well as in pending legal cases filed by some of the social organizations harmed by the policy. I will not summarize or review what has already been said about the policy. Rather, after providing some background information, I will offer a brief assessment of Harvard’s policy.

Final clubs are exclusive, historically single-gender social clubs composed of Harvard students and alumni. The clubs are notorious for their exclusivity. Membership is by invitation only, and members are selected and vetted through a drawn-out process.328 Final clubs are independently owned and have been officially unaffiliated with Harvard since 1984.329 Most final clubs are Massachusetts corporations. Prior to the implementation of Harvard’s policy, there were six all-male final clubs, five all-female final clubs, and two coed final clubs. The all- male final clubs own off-campus property near Harvard, whereas the all-female clubs lease off- campus property.330 Like final clubs, fraternities and sororities are not recognized by Harvard and have no official affiliation with it.

327John S. Rosenberg, “Final-Club Finality,” Harvard Magazine, February 7, 2018, https://harvardmagazine.com/2018/03/harvard-final-clubs-sanctions.

328C. Ramsey Fahs, “A Guide to Harvard’s Relationship with Final Clubs,” The Harvard Crimson, May 6, 2016, http://www.thecrimson.com/article/2016/5/6/final-clubs-explained/.

329Ibid.

330Ibid.

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Since Harvard’s policy took effect, all four of Harvard’s sororities have shut down, although one has since reopened with limited membership. The all-female final clubs have either begun the process of going coed or been disbanded.331 As of August 2018, there are no female- only social groups at Harvard.332 Harvard’s strategy has been less successful with male-only social groups. While some historically male-only final clubs have agreed to become coed, most male-only social organizations have resisted.333 Some of the organizations harmed by Harvard’s policy have filed lawsuits against Harvard.334

The Harvard policy under consideration raises different issues than those addressed in the previous chapters. Whereas the focus in those chapters was on student groups seeking to associate on campus, the Harvard case involves groups located off campus. Moreover, Harvard’s newest strategy for regulating these off-campus groups differs from the sociospatial strategies that were central to the analysis in the previous chapters. In the immediate instance, Harvard is not leveraging its control over campus access to push gender-exclusive student groups off campus. These groups are already off campus. Rather, Harvard is trying to control private, off- campus associations by sanctioning student members of these associations. It is discouraging students from affiliating with single-gender social organizations by withholding opportunities from those that do.

331Sarah Brown, “Harvard Cracks Down on All-Male Clubs. But It’s Women’s Groups That Have Vanished.,” The Chronicle of Higher Education, January 8, 2019, https://www.chronicle.com/article/Harvard-Cracks-Down- on/245436.

332Shera S. Avi-Yonah, Jonah S. Berger, and Caroline S. Engelmayer, “Harvard Is Without All-Female Social Groups After Last Three Holdouts Agree to Go Co-Ed,” The Harvard Crimson, August 24, 2018, http://www.thecrimson.com/article/2018/8/24/no-more-female-clubs/.

333Ibid.

334Nate Raymond, “Fraternities, Sororities Sue Harvard over Single-Sex Club Crackdown,” Reuters, December 5, 2018, https://www.reuters.com/article/us-harvard-lawsuit-idUSKBN1O228L.

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The immediate case thus illustrates an alternative means of regulating students’ associational attachments. Instead of using spatial strategies to regulate student groups within the geographic space of the campus, Harvard is relying upon non-spatial strategies to control private associations that have their own property and are therefore independent of Harvard not only legally and organizationally but also spatially. With its new strategy, Harvard has found an effective means of controlling off-campus associations that are less susceptible to spatial tactics involving campus access barriers and conditional access policies. Put simply, Harvard can exert control over private, off-campus associations by penalizing Harvard students who affiliate with them.

Harvard’s policy sets a significant precedent: students at Harvard can be penalized because of their membership in a private, lawful association. Students’ private associational attachments are now Harvard’s business—even when these attachments are realized off campus.

Although it is unclear how Harvard will enforce its policy, it is clear that some students will be sanctioned based purely on their membership in disapproved private associations. They will be cut off from academic scholarships and other benefits not because of academic failure or unlawful conduct but solely because their associational choices cut against Harvard values.

The sanctions policy has unsettling implications. At Harvard, student membership in lawful, private associations is now subject to Harvard’s oversight. While Harvard might decide to limit its oversight to student membership in single-gender final clubs, sororities, and fraternities, some of the justifications Harvard has offered for its present policy point toward more expansive control. Harvard administrators have indicated that nondiscrimination and inclusivity are integral to Harvard’s mission, which centers around the intellectual, personal, and

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social transformation of its students.335 As seen in its new policy, Harvard’s transformative efforts apparently include steering students away from private organizations whose values are at odds with Harvard’s and penalizing students who choose to associate with disapproved organizations. While the present list of disapproved organizations is short, it could be lengthened to include other private, off-campus organizations that—according to Harvard administrators— are deemed discriminatory and/or exclusive. Numerous social, political, and religious organizations in the U.S. discriminate or exclude on the basis of gender, sexual orientation, belief, and/or status, among other things.336 Harvard could sanction students who affiliate with these organizations. While this might seem improbable, it is possible given that Harvard now monitors students’ membership in private, lawful, off-campus organizations as part of its larger transformative mission.

On balance, Harvard’s policy might have narrower implications if the underlying concern is that USGSOs have outsized, negative effects on Harvard’s campus culture—even though they are located off campus. Harvard does have a reasonable interest in cultivating a campus culture that corresponds with its educational mission and values. It also has a strong interest in combatting sexual assault. It could be that USGSOs have a pervasive, deleterious influence on

Harvard’s campus culture. If this is the case, Harvard’s sanctions policy might represent little more than one means of reducing this influence. If USGSOs do, in fact, have an outsized influence on Harvard’s campus culture, I think Harvard has a valid reason for trying to diminish this influence.

335 Patricia Hurtado, “Harvard Fires Back in Legal Battle Over Single-Sex Greek Clubs,” Bloomberg, February 9, 2019, https://www.bloomberg.com/news/articles/2019-02-09/harvard-fires-back-in-legal-battle-over-single-sex- greek-clubs; “Mission, Vision, and History,” Harvard College, accessed April 23, 2019, https://college.harvard.edu/about/mission-and-vision.

336The Roman Catholic Church, for instance, prohibits women from being ordained as priests and therefore seems at odds with Harvard’s commitments to gender inclusivity and nondiscrimination.

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However, measuring the actual influence of USGSOs—and identifying the characteristics that make this influence problematic—is a complicated task. This task raises empirical questions about causality that cannot be addressed in this brief analysis. Specifically, it raises questions about whether all unrecognized single-gender student organizations have a similar—and negative—influence on Harvard’s campus culture and whether this influence can be attributed to the gender-exclusive practices of these organizations. It seems unlikely that all of the social organizations targeted by Harvard’s policy have the same effects on Harvard’s culture. In particular, it seems unlikely that female-only final clubs perpetuate the same problems (e.g., misogynistic attitudes) that have been linked to male-only final clubs.

If Harvard wants to change its campus culture, it should do so without penalizing students for affiliating with lawful, private associations located beyond its campus. Members of the Harvard community have identified some good strategies for improving Harvard’s culture, such as creating more inclusive on-campus social spaces and improving the residential culture associated with Harvard’s dormitories.337 Harvard could pursue these strategies without resorting to sanctions.

In conclusion, the Harvard issue reaffirms my conviction that college and university campuses are fertile settings for political theorists to study. It also raises salient questions about students’ freedom of association. Harvard has taken the step of penalizing students for affiliating with private, off-campus organizations that have been deemed incompatible with Harvard values.

Technically, Harvard is not prohibiting students from associating with these disapproved organizations. But it is withholding opportunities from students who choose to associate with them. As an elite institution that controls a wealth of resources and privileges, Harvard can

337Some of these strategies are discussed in the report on sexual assault referenced earlier. The report is available at https://sexualassaulttaskforce.harvard.edu/Final-Report.

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leverage this control in order to manage students’ associational affiliations. My position is that

Harvard should refrain from doing so even if its actions are legally permissible. It will be interesting to see whether other private institutions of higher learning follow Harvard’s lead, and how courts handle these issues if and when they arise.

The precedent set by Harvard should worry those who think that people—including college students—should be allowed to hold mixed, multiple associational attachments and loyalties. Universities should educate students and foster campus environments conducive to learning, but they should not use their institutional powers to regulate and shape students’ membership in private, lawful associations. Moreover, while universities like Harvard might view the personal, social, and intellectual transformation of students as essential to their institutional missions, their transformative efforts should be limited. Among other things, universities should avoid sanctioning students based on their membership in private organizations.

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