One of the most awkward and painful truths in American higher education is that it is perfectly legal for private colleges and universities — on the left and right — to discriminate against people who refuse to follow, or at least respect, the teachings at the core of these voluntary associations. However, and this is the tricky part for many journalists, these institutions must use a truth-in-advertising approach when dealing with potential students, faculty and the public.
In other words, if a liberal school is going to limit free speech, it must say that right up front when students sign documents to be enrolled. The same thing is true for, obviously, religious schools that want to defend their faith’s moral teachings on marriage, family and sex.
At the moment, the newspaper that lands in my front yard is covering a controversy at Johns Hopkins University that is a perfect example of this legal puzzle.
To my shock, the Baltimore Sun team found a voice on the legal left that perfectly stated most of the crucial legal equation in this battle over a voluntary association’s efforts — perhaps — to practice “viewpoint discrimination” among competing student groups. But first, here is the set up for the current debate (warning: this material includes “scare quotes”):
A group of students at the Johns Hopkins University is reviving a campus anti-abortion group that members say will perform “sidewalk counseling” — attempting to discourage pregnant women entering clinics from going through with the procedure.
But critics worry that the tactics of Voice for Life will harm the vulnerable women the group says it is trying to help.
On Tuesday, a panel of undergraduates will review a decision by the Hopkins Student Government Association to deny recognition to the group. At stake are university funding and privileges that are available to officially sanctioned student clubs, with advantages that include the ability to use the university logo and host events and raise money on campus.
The effort has sparked a debate at Hopkins about abortion rights, free speech and the role of the university in accommodating a controversial group.
Now, the story makes it clear that no one disputes the free-speech rights of these students, when it comes to legal protests on public sidewalks. The issue here is whether this chapter of Voice for Life will be denied status, and funds, as a student organization promoting debate on a controversial issue. Needless to say, the campus already recognizes a wide variety of similar groups on other issues.
Enter, to my relief, a logical legal voice to discuss these issues:
David Rocah, a staff attorney at the American Civil Liberties Union of Maryland, said it the university has the legal right to deny recognition to Voice for Life but would be “profoundly wrong” to do so.
“Even though private colleges and universities are not subject to the First Amendment, they hold themselves out as institutionally committed to the same principle of free speech and free inquiry and respect,” he said. “The student government’s actions in denying reorganization to this club because they don’t like their form of political protest is offensive, misguided and wrong, and completely antithetical to being an institution that values a diversity of opinions and viewpoints.”
Hopkins spokesman Dennis O’Shea said the student government should be “afforded the opportunity to review the earlier decision under its own policies and in light of the university’s commitment to broad debate and freedom of expression.”
Notice that, as a liberal private school, Johns Hopkins has every right to practice viewpoint discrimination. What this story does not address, however, is whether conservative students at this prestigious school are warned in advance that their rights would be — legally — limited. Was truth-in-advertising practiced here? That quote from the JHU spokesperson is not very enlightening.
So the story gets a difficult point about 75 percent right, which is a high score — unfortunately — on this type of culture wars story.
Meanwhile, I should mention that many readers will be outraged when they hit one other section of this story, a passage in which this pro-life group is compared with (wait for it):