Progressive, antisubordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions' nondiscrimination policies. The leading cases addressing the conflicts between nondiscrimination policies and exclusionary student groups are polarized and distorted by their culture war context. That context tainted the leading authority, Boy Scouts of America v. Dale, and is especially salient in the student expressive association cases, many of which are being aggressively litigated by religious groups with strong antihomosexuality goals. The strength of these First Amendment claims can be difficult to recognize in this context. Dean Howarth attempts to hold new ground, in which protecting the First Amendment association rights of exclusion by even antihomosexual student groups is consistent with a deep commitment to improved justice for sexual minorities. Dean Howarth discusses the leading high school and law school cases, and presents the strong First Amendment doctrinal analysis that should control. She critiques as weak the equality claim at stake in preventing a faith-based student group from limiting its membership and officers to adherents of that faith. To the contrary, nondiscrimination and equality for sexual minorities may be strengthened by greater separation between the expressive identities of educational institutions and those of student groups in the public forums established by the schools or universities. This is especially true in light of Establishment Clause developments that now protect religious groups within public schools and universities. Further, implementation principles can control the discriminatory impact within an institution of a discriminatory student group. In sum, forcing faith-based student organizations to abide by school or university nondiscrimination policies does not significantly advance equality and nondiscrimination rights for sexual minorities. Recognizing the First Amendment rights of even antihomosexual student organizations may be, in fact, the better path to LGBT rights and school environments in which LGBT students will have the safety, security, and support in which they can thrive.
Joan W. Howarth, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U.C. Davis L. Rev. 889 (2008-2009).