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Timothy J. Tracey: The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights
Michael Ramsey

Timothy J. Tracey (Ave Maria School of Law) has posted The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights (University of Memphis Law Review, forthcoming) on SSRN. Here is the abstract: 

The U.S. Supreme Court killed off equal access in Christian Legal Society v. Martinez. A religious student group, said Justice Ginsburg, “enjoys no constitutional right to state subvention.” Religious groups may form on university campuses, but they have no right to the “benefits of official recognition” — classrooms, corkboards, and money. No longer can they wield the First Amendment to second-guess the educational decisions of university administrators. University “decisions about the character of [their] student-group program are due decent respect.”

The Martinez decision marks a return to an early-American understanding of student rights. From the enactment of the Bill of Rights in 1791 until the Fifth Circuit’s decision in Dixon v. Alabama State Board of Education in 1961, courts deferred to universities by the doctrine of in loco parentis. Universities stood in the place of students’ parents. Just as courts acceded to parental authority, they acceded to university authority.

The equal access cases renounced this 170-year history of deference to university administrators. Equal access enabled religious groups to override university decisions about what student groups best further the school’s educational mission. This equal access paradigm prevailed at the Supreme Court for over 30 years. Religious groups consistently won the Court’s approval to use the First Amendment to compel university support. But Martinez abandoned equal access with its embrace of a subsidy model for university-student group relations. It freed universities to pick and choose the groups they want to support — even if it means picking secular groups over religious groups. Despite critics’ claims to the contrary, this more deferential posture toward universities is consistent with the original understanding of student rights. Early-Americans had no concept of equal access. In loco parentis controlled. No twisting of history can change that.