Tennessee Attorney General Says Bill To Force Colleges To Allow Discrimination Is Unconstitutional

Later today, a Tennessee House subcommittee is scheduled to consider a bill that would take away university police departments unless those institutions permit religious student organizations to engage in anti-gay discrimination. The bill arises from a conflict between Vanderbilt University and anti-gay lawmakers led by state Rep. Mark Pody (R), who object to Vanderbilt’s policy which requires student organizations to accept “all comers” if they wish to be subsidized by the school.

Last week, however, Tennessee Attorney General Robert Cooper (D) threw cold water on Pody’s efforts with an official opinion explaining that the bill is unconstitutional, at least as-applied to private universities such as Vanderbilt. As Cooper’s opinion explains, private universities generally have a right to decide which student organizations they wish to be associated with, and that includes the right to take a stand against discrimination:

It is well established that the State may not condition continued receipt of a valuable state benefit (here, the exercise of the State’s police power to commission and maintain a police force) on a private institution’s compliance with an unconstitutional condition. . . .

As previously discussed SB1241 impacts a private university’s First Amendment right of free association and distinguishes between those universities that organize their student groups in conformity with SB1241 and those that do not. This classification thus impacts a fundamental right – a private university’s First Amendment right to free association – and would be reviewed under the strict scrutiny standard. The General Assembly has an interest in how the State delegates its police power to a private university. Even if that interest is compelling, the General Assembly cannot assert that interest through an unrelated requirement that a private university abandon its right of free association.

Cooper also concludes that Pody’s anti-gay law would be constitutional as-applied to public universities, because Tennessee is allowed to decide that it does want to associate itself and its universities with anti-gay discrimination. This conclusion, however, is likely not correct. Just as the federal government cannot discriminate against gay couples when it doles out marriage benefits — that’s why the Defense of Marriage Act is unconstitutional — a state government also cannot form official groups that engage in anti-gay discrimination. Thus, to the extent that a student group at a Tennessee university is an arm of the state itself, such as group is not permitted to engage in anti-gay discrimination.