1st Amendment: Rights of Assembly and Association

Recognized student organizations enjoy the First Amendment rights of free expression, assembly and association. These serve as the bedrock principles that govern the relationship between recognized student organizations and public universities

Nearly fifty years ago, Healy v. James articulated First Amendment expectations for university-recognized student organizations, and a large body of case law has followed in its wake, further defining First Amendment protections for these groups. Recognized student organizations also fall within the reach of several federal civil rights laws and policies.

The following are some of the rights and responsibilities of student organizations at public institutions, as recognized by US courts.

A public university can...

• Create and enforce viewpoint-neutral, educationally-based requirements for RSOs, so long as they do not inhibit freedoms of expression or speech (Rosenberger v. Rectors of the University of Virginia).
• Require an RSO to provide a list of officers and the purpose of the organization, and this information can be made public (Elsen v. Regents of University of California).
• Require RSOs to adhere to the university’s nondiscrimination policy or enforce an institutional “all-comers” policy, in which RSOs are required to be open in membership to all students (Christian Legal Society v. Martinez).
• Require disclosure of the membership list of RSO if there is a rational connection between the disclosure and a legitimate governmental end, and that the governmental interest in the disclosure is convincing and compelling. (Light of the World Gospel Ministries, Inc. v. Vill. of Walthill, Nebraska).

A public university cannot...

• Deny an RSO’s request for recognition based upon the political or social viewpoint of the organization. (Healy v. James; Gay Student Services v. Texas A&M University; Tex. Educ. Code Sec. 51.9315).
• Permit RSOs to discriminate based upon sex or gender, unless they qualify for a social fraternity or athletic membership exemption (Title IX, Educational Amendments of 1972).
• Permit RSOs to discriminate based upon race, ethnicity, or national origin (Title VI, Civil Rights Act).
• Require disclosure of the membership list of an RSO that is engaged in advocacy if the group can show a reasonable probability that compelled disclosure will lead to threats, harassment, or reprisals. (Buckley v. Valeo).
• Engage in viewpoint discrimination when allocating funding or resources to RSOs (Rosenberger v. Rectors of the University of Virginia; Tex. Educ. Code Sec. 51.9315).
• Prohibit an RSO’s dissemination of content deemed offensive (Papish v. Board of Curators at University of Missouri; Tex. Educ. Code Sec. 51.9315).

Recognized student organizations also fall within the reach of several federal civil rights laws and policies. Each of the three civil rights statutes below have varying degrees of applicability to RSOs, though the burden should be on the university to ensure equal educational opportunity through co-curricular involvement.

Title VI of the 1964 Civil Rights Act - Bars discrimination based upon race, color, or national origin in a university program or activity
Americans with Disabilities Act - Prohibits discrimination on the basis of disability in a university program or activity
Title IX - see in section below

Case Law Citations:

• Buckley v. Valeo, 424 U.S. 1 (1976).
• Christian Legal Society v. Martinez, 561 U.S. 661 (2010).
• Elsen v. Regents of University of California, 269 Cal. App 2d 696 (Ct. App. 1969).
• Gay Student Services v. Texas A&M, 612 F. 2d 160 (5th Cir. 1980).
• Healy v. James, 408 U.S. 169 (1972).
• Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F. 2d 386 (4th Cir. [Va.] 1993).
• Light of the World Gospel Ministries, Inc. v. Vill. of Walthill, Nebraska, 336 F.R.D. 567, 571–72 (D. Neb. 2020).
• Papish v. Board of Curators at University of Missouri, 410 U.S. 667 (1973).
• Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

Policy Citations:

• (Title VI) Title VI Statute, 42 U.S.C §§ 2000d - 2000d-7.
• (Title IX) Education Amendments Act of 1972, 20 U.S.C. §§1681 - 1688 (2018).

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Senate Bill 15
Biological Sex and Participation in Intercollegiate Sports
“Save Women’s Sports Act”

During the Spring 2023 Texas legislative session, Senate Bill 15 was passed with an effective date of January 1, 2024. This bill mandates that intercollegiate teams authorized or sponsored by a Texas institution of higher education must have their roster and participation limited on the basis of biological sex. The only exception being if a biological female athlete wants to compete and there is not a female specific team available. Biological male athletes may not compete on teams designated for biological females.

National governing bodies exist for all intercollegiate sports and may or may not restrict participation in their sport based on biological sex.

Intercollegiate competition is competition occurring between two or more universities. Intercollegiate competition may occur within Sport Clubs that are recognized as such as well as within sport focused, recognized student organizations. Intercollegiate competition is not drop-in recreation or intramural play.

As with most student organizations, application and membership in Sport Clubs are open to any A&M student, however their ability to play or compete is subject to the law and rules above.

Senate Bill 15: SECTION 2. Subchapter B,:
Education Code Sec. 51.980
Section 2
Subsection (b): Except as provided by Subsection (c), an intercollegiate athletic team sponsored or authorized by an institution of higher education may not allow:

1. a student to compete on the team in an intercollegiate athletic competition sponsored or authorized by the institution that is designated for the biological sex opposite to the student's biological sex; or
2. a male student to compete on the team in a mixed-sex intercollegiate athletic competition sponsored or authorized by the institution in a position that is designated by rule or procedure for female students.

Subsection (c): An intercollegiate athletic team described by Subsection (b) may allow a female student to compete in an intercollegiate athletic competition that is designated for male students if a corresponding intercollegiate athletic competition designated for female students is not offered or available.

Source

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Senate Bill 17
Diversity, Equity, and Inclusion

During the Spring 2023 Texas legislative session, Senate Bill 17 was passed with an effective date of January 1, 2024. This bill restricted Institutions of higher education from establishing or maintaining a diversity, equity, and inclusion office in addition to restrictions on required trainings and other programs pertaining to race, color, ethnicity, gender identity or sexual orientation. Within the bill are specific exemptions to these restrictions including the exemption of activities of registered student organizations.

Prior to the enactment of Senate Bill 17, Senate Bill 18, which took effect on September 1, 2019, reinforced constitutional protections pertaining to students and student organizations. The bill expressly prohibits institutions of higher education from denying benefits to student organizations based on a “political, religious, philosophical, ideological, or academic viewpoint expressed by the organization.”

In summary, recognized student organizations are not restricted by SB 17, and the institution is restricted from denying these groups benefits afforded to all recognized student organizations including, but not limited to, the use of the Texas A&M University brand, advising, access to funds, and use of university space.

Senate Bill 17: SECTION 1. Subchapter G, Chapter 51, Education Code: Sec. 51.3525

Subsection (b): The governing board of an institution of higher education shall ensure that each unit of the institution:

1. does not, except as required by federal law:
   1. establish or maintain a diversity, equity, and inclusion office;
   2. hire or assign an employee of the institution or contract with a third party to perform the duties of a diversity, equity, and inclusion office;
   3. compel, require, induce, or solicit any person to provide a diversity, equity, and inclusion statement or give preferential consideration to any person based on the provision of a diversity, equity, and inclusion statement;
   4. give preference on the basis of race, sex, color, ethnicity, or national origin to an applicant for employment, an employee, or a participant in any function of the institution; or
   5. require as a condition of enrolling at the institution or performing any institution function any person to participate in diversity, equity, and inclusion training, which:
      1. includes a training, program, or activity designed or implemented in reference to race, color, ethnicity, gender identity, or sexual orientation; and
      2. does not include a training, program, or activity developed by an attorney and approved in writing by the institution’s general counsel and the Texas Higher Education Coordinator Board for the sole purpose of ensuring compliance with any applicable court order or state or federal law;

Subsection (d):  Subsection (b)(1) may not be construed to apply to:

1. academic course instruction;
2. scholarly research or creative work by an institution of higher education’s students, faculty, or other research personnel or the dissemination of that research or work;
3. an activity of a student organization registered with or recognized by an institution of higher education;
4. guest speakers or performers on short-term engagements;
5. a policy, practice, procedure, program, or activity to enhance student academic achievement or postgraduate outcomes that is designed and implemented without regard to race, sex, color, or ethnicity;
6. data collection; or
7. student recruitment or admissions.

The full text of Senate Bill 17 as enrolled may be found at: https://capitol.texas.gov/tlodocs/88R/billtext/html/SB00017F.htm

Senate Bill 18: SECTION 2. Subchapter Z, Chapter 51, Education Code: Sec. 51.9315
Subsection (g): An institutions of higher education may not take action against a student organization or deny the organization any benefit generally available to other student organizations at the institution on the basis of a political, religious, philosophical, ideological, or academic viewpoint expressed by the organization or of any expressive activities of the organization.

The full text of Senate Bill 18 as enrolled may be found at: https://capitol.texas.gov/tlodocs/86R/billtext/html/SB00018F.htm

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Student Organization Funding Opportunities

While primary funding for Recognized Student Organizations (RSOs) is the responsibility of each RSO, a few funding opportunities centering around risk reduction, planning, and implementation of student activities are available in the Division of Student Affairs. These opportunities are made available for any RSO to apply, are content-neutral in how they are applied, and require organizations to be good stewards of funds should funds be awarded. The majority of funds are made available through donations from former students.

Funding opportunities have content-neutral criteria. This practice was developed in light of the Supreme Court Ruling in Rosenberger v. Rectors of the University of Virginia. Specifically the court determined that denying a group funding because of the ideas that it advocates is unconstitutional “viewpoint discrimination.”

Examples of available funding opportunities for RSOs include, but are not limited to, The Good Bull Fund, established to cover or offset expenses related to the planning and implementation of student organization activities, and Risk Initiative Funding to compensate for those unexpected, but important, aspects of events that need to be addressed without having a negative impact on the budget. Funding opportunities are available to all RSOs at Texas A&M University.

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Privileges That Come With Recognition

In 1969, many colleges and universities adopted a Statement on Rights, Freedoms and Responsibilities of Students. This statement, commonly referred to as the "Student Bill of Rights," is printed as an Appendix to the Second Circuit's majority opinion in this case, 445 F.2d 1135-1139, see n 2, supra. Part V of that statement establishes the standards for approval of campus organizations and imposes several basic limitations on their campus activities, including but not limited to:

"College students and student organizations shall have the right to examine and discuss all questions of interest to them, to express opinion publicly and privately, and to support causes by orderly means. They may organize public demonstrations and protest gatherings and utilize the right of petition. Students do not have the right to deprive others of the opportunity to speak or be heard, to invade the privacy of others, to damage the property of others, to disrupt the regular and essential operation of the college, or to interfere with the rights of others."
As defined in Texas A&M Student Rule 41.1, “Texas A&M University acknowledges that self-governing student organizations contribute significantly to the educational, social, and personal development of students, as well as to the vibrant culture of the institution. The University further recognizes that students may freely establish and participate in these organizations within the context of local, state, and federal law, as well as University policies and Student Rules.”

Student organizations must meet certain annual requirements to receive and retain official recognition and, in turn, are granted specific privileges of recognition which can be found in the Student Organization Manual - Oct 2023 (tamu.edu).

As defined by Texas Senate Bill 18, benefits provided to ensure protected expression on campus include:

• Recognition by or registration with an institution of higher education;
• The use of an institution of higher education's facilities for meetings or speaking purposes;
• The use of channels of communication controlled by an institution of higher education; and
• Funding sources made generally available to student organizations at an institution of higher education.

Limited Restrictions in Membership

All comer policy information:

• Student Rule 41.3: Student organizations and their advisors are responsible for compliance with University student rules and local, state, and federal laws, as well as expectations and additional guidelines outlined in the Student Organization Manual.
• Student Org Manual: Be open in membership unless otherwise permitted under applicable state or federal law through specific University exemption.
• University Statement on Harassment and Discrimination: Texas A&M is committed to the fundamental principles of academic freedom, equality of opportunity and human dignity. To fulfill its multiple missions as an institution of higher learning, Texas A&M encourages a climate that values and nurtures collegiality, diversity, pluralism and the uniqueness of the individual within our state, nation and world. All decisions and actions involving students and employees should be based on applicable law and individual merit. Texas A&M University, in accordance with applicable federal and state law, prohibits discrimination, including harassment, on the basis of race, color, national or ethnic origin, religion, sex, disability, age, sexual orientation, or veteran status in employment, educational programs, and admissions.

TIX language re: F/S, athletics, religious organizations:

• Title IX exemptions for social fraternities or sororities, based upon meeting two criteria:
  • The active members of the organization are primarily students at a higher education institution;
  • The organization is a social fraternity or sorority exempt from taxation under section 501(a) of the IRS code. To be considered a social fraternity/sorority, the organization must answer “no” to the following questions:
    • Is the organization’s membership limited to persons pursuing or having interest in a particular field of study, profession, or academic discipline?
    • Is the membership limited to individuals who have a high level of achievement in scholarship or any other endeavor?
    • Are the members permitted to hold membership in other fraternities or sororities at the same level of education?
• Title IX exemptions for Athletics & Rec Sport Clubs
  • University interscholastic, intercollegiate, club or intramural athletics may be single-sex groups, so long as equal athletic opportunity and funding for members of both sexes is provided.

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