Expressive Association Claims for Private Universities. (Corry v. Stanford) (Speech at Twenty-First Century Schools and Universities)

• Date: 01 July 2024
• Author: Barker, Taylor J.
• Published date: 01 July 2024

Table of Contents
                Introduction
                I. The Leonard Law
                 A. Text and Context
                 B. Historical Applications
                 1. The failed constitutional challenge
                 2. Subsequent applications in state court
                II. Challenging the Leonard Law
                 A. The Right of Expressive Association
                 1. Contemporary doctrine and application in Corry v. Stanford
                 2. Post-Corry case law
                 B. Establishing a Violation
                 1. Facial challenge
                 2. Strict scrutiny
                 3. Intermediate scrutiny
                III. Implications for Title VI
                 A. The Rise and Fall of First Amendment
                 Deference to University Admissions
                 B. Contours of a Freedom of Association Challenge to Title VI
                 1. Hard: showing that Title VI significantly
                 burdens associational freedom
                 2. Harder: the state interest in ending racial
                 discrimination in education
                 3. Hardest: the reasonableness of not funding
                 discriminatory schools
                Conclusion
                

Introduction

The Constitution protects speech from state interference. Because public universities are the state, they are subject to constitutional limits. But private universities are just that: private. They are not subject to constitutional limits on state power; rather, they are protected by constitutional limits on state power. These constitutional protections are well recognized: freedom of speech, freedom of expression, freedom of association. These First Amendment freedoms give private universities the right to choose and control their membership, even when such restrictions would be unconstitutional if imposed by the state.

This Essay considers whether two laws extending constitutional limits on state power to private universities may violate the First Amendment rights of those universities: California's Leonard Law and Title VI of the 1964 Civil Rights Act. The Leonard Law requires private universities in California to adhere to the First Amendment, thus limiting their ability to discipline and expel students for speech that the state would itself be unable to restrict. (1) Title VI conditions federal aid on universities' refraining from racial discrimination, which SFFA v. Harvard held forbids race-conscious admissions. (2) SFFA curtailed the peculiar freedom enjoyed by private and public universities to choose students on the basis of race. This Essay argues that the general freedom of expressive association extends to private universities, shielding them from some, but not all, restrictions on their ability to choose and discipline their students.

Part I discusses the text and history of the Leonard Law. This history begins with the statute's enactment, a response to politically correct campus speech codes. It continues with the first claim under the Leonard Law, one brought against Stanford University; that claim produced the singular, failed challenge to the law's constitutionality. That history culminates in the present application of the Leonard Law by California state courts, which construe the law to limit private universities' ability to restrict student speech on the basis of viewpoint discrimination.

Part II argues that the development of First Amendment jurisprudence over the last twenty-five years has clarified the right of expressive association and revealed the Leonard Law to be unconstitutional. When Stanford University challenged the Leonard Law, its asserted First Amendment interests were dismissed by the court as internally inconsistent. Though this dismissal reflected contemporary doctrine, its logic has not withstood the test of time. As this Essay shows, successful challenges to public accommodation laws demonstrate that the Leonard Law infringes universities' right of expressive association--an infringement that cannot withstand constitutional scrutiny.

Part III shows that the principles that make the Leonard Law unconstitutional do not extend to Title VI. While the Leonard Law is a pure restriction on university's ability to (dis)associate, Title VI is a conditional funding scheme--providing the government correspondingly vastly more discretion in how it regulates. Furthermore, the government's narrow and compelling interest in preventing race discrimination in higher education fares far better under the relevant doctrinal frameworks than the vague interests motivating the Leonard Law. These differences serve to provide limiting principles for an expressive association claim.

I. The Leonard Law

Part I.A reviews the text and historical context of the Leonard Law. Part I.B describes the sole constitutional challenge to the Leonard Law and its subsequent applications in California state court.

A. Text and Context

The Leonard Law is named for its sponsor, California State Senator Bill Leonard, who wished to combat university student speech codes. (3) Notwithstanding its conservative sponsor, the law enjoyed widespread and bipartisan support. Passing 24-0 in the State Senate and 64-1 in the Assembly, the law had something for everyone. (4) On the one hand, conservatives had worried that university speech codes "encourage[d] students to conform to a 'politically correct' view" and "add[ed] to an atmosphere of intolerance on campus." (5) These concerns were substantiated by reports of conservatives resigning from student groups for fear of administrative reprisal and strong support for the bill from the California College Republicans. (6) On the other hand, liberals had long supported imposing public free-speech norms on private universities. (7) As Erwin Chemerinsky argued, "[s]peech can be chilled and lost as much by private sanctions as public ones"; because "[a]ll schools-- public and private--perform an essential public function," "[a]ll should be obligated to follow the United States Constitution." (8)

To be precise, the "Leonard Law" is the colloquial name for three statutes that collectively prohibit California secondary and postsecondary schools, public and private, from disciplining students for speech that, "when engaged in outside of the campus," would be protected by the First Amendment of the Constitution. (9) This Essay focuses on the component of the Leonard Law, California Education Code section 94367, applying to private universities. (10)

B. Historical Applications

1. The failed constitutional challenge

Doubts about the Leonard Law's constitutionality were put to bed by the successful challenge under the Leonard Law to Stanford University's speech code in 1995.

The Stanford speech code had prohibited insulting or "fighting" words intended to stigmatize on the basis of "sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin." (11) The code reflected Stanford's institutional judgment twice over: first, that speech targeting these characteristics was particularly harmful; (12) second, that prohibiting such speech was a constitutionally permissible regulation of "fighting words" and an "expressive means ... of bolstering the credibility of [Stanford's] antiracist statements]." (13)

The California Superior Court of Santa Clara County rejected Stanford's defense of its speech code in Corry v. Stanford. The threshold question of whether the code would survive First Amendment scrutiny if enacted by a government was resolved by the Court's then-recent decision in R.A.V v. City of St. Paul, which held a nearly identical municipal hate speech ordinance to be unconstitutional. (14) Mirroring the reasoning in R.A.V., Corry held that the code improperly constrained speech that merely "conveys a message of hatred and contempt" and "prohibit[ed] speech based on the content of the underlying expression." (15) Corry also rejected Stanford's arguments for the facial invalidity of the Leonard Law. Part II.A will address the court's reasoning in greater depth, but the core finding was straightforward: The "Leonard Law simply does not restrict speech or ideas in any way" and, in fact, "expands the realm of speech without favoring one side over the other." (16)

2. Subsequent applications in state court

Subsequent case law has modestly clarified the ambit of the Leonard Law. Relevant here are a pair of challenges, Omicron I and Omicron II, alleging that the University of Southern California (USC) violated the Leonard Law by delaying students from joining a fraternity or sorority until the spring semester of their freshman year. (17)

The Omicron challenges provide a de facto "as applied" challenge to the Leonard Law. As the court explained, there were "First Amendment considerations on both sides": on plaintiffs' side, "statutory protections for student free speech rights"; on USC's side, "the constitutional First Amendment deference owed to a university's academic decisions." (18) Relying on Grutter v. Bollinger, Omicron I held that USC's policy merited First Amendment protection so long as it was a "genuine academic judgment." (19) The court warned this protection would be forfeited if the "policy arises not from a genuine academic judgment but from viewpoint discrimination" against the "viewpoint plaintiffs espouse." (20) The court also analyzed the policy under a "limited public forum framework," which allows the government--and, by application of the Leonard Law, the university--to thereby restrict speech activity within dedicated spaces so long as the restriction is not on the basis of viewpoint. (21) Because this framework likewise turned on the existence of viewpoint discrimination, the court ultimately granted summary judgment to USC because there was no viewpoint discrimination. (22)

II. Challenging the Leonard Law

This Essay revives the strongest of Stanford's constitutional challenges under Corry to the Leonard Law: that it violates universities' First Amendment right of expressive association and cannot survive strict scrutiny. Part II.A details Corrys rationale for rejecting Stanford's expressive association defense and shows how Corry's rationale has been significantly superseded by the Court's subsequent decisions in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc. (23) and Boy...