We recently discussed the controversy at Rutgers Law School over the reading of the “n-word” from a state supreme court opinion. Now there is a potentially serious conflict brewing over the right of the student government to demand that all student groups hold at least one event featuring critical race theory or diversity issues. The requirement (for any group receiving more than $250) presents some interesting questions in the conflict between free speech and diversity programs at such schools.On November 20, 2020, the student bar association on the Camden campus amended its constitution to add a section titled “Student Organizations Fostering Diversity and Inclusion.” The section mandates that if an organization “requests or receives $250 or more in total allocations,” they are required to “plan at least one (1) event that addresses their chosen topics through the lens of Critical Race Theory, diversity and inclusion, or cultural competency.”
That creates a direct conflict between free speech and diversity policies. What is interesting is that the language would seem to prevent a group like the Federalist Society from satisfying the requirement by “addressing” Critical Race theory or other mandates topics from an opposing viewpoint. Rather it states that the event must explore such subjects “through the lens of Critical Race Theory, diversity and inclusion, or cultural competency.”
Putting aside the clearly poor drafting of such a standard, it would apply to any group receiving as little as $250. So, as one of the listed groups at the law school, if the Rutgers Law School Softball Club asked for money for pizza after a game, it would have to hold an event on Critical Race Theory or other mandates topics.
The Foundation for Individual Rights in Education (FIRE) has sent a letter to Rutgers University President Jonathan Holloway raising the obvious free speech concerns.
In 2018, the Supreme Court handed down Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S. ___ (2018). That decision overturned Abood v. Detroit Board of Education and held that union fees required from non-union members in the public sector violate the First Amendment. The Court held the “freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” The Court further explained:
Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.
Free speech serves many ends. It is essential to our democratic form of government . . . Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.
We recently discussed an analogous problem of requiring contractors and employees in signing an anti-BDS laws passed in various states.
The poorly drafted and poorly conceived Rutgers provision crosses the line into compelled speech in my view. It is one thing to mandate anti-discrimination rules in the conduct of groups. However, this provision ties the receipt of any small amounts of support to holding events “through the lens” of approved viewpoints.
The University needs to rescind the provision in my view or face a legal challenge as a denial of free speech and associational rights protected under the First Amendment.