When Did Berkeley Decide To Start Opposing Student Freedoms?

There was a time when the University of California, Berkeley, would have embraced a group like Young Americans for Liberty just for its name alone.

Back in the '60s, Berkeley became national shorthand for college campus protests, where students by the thousands simultaneously celebrated, demonstrated, and demanded freedom of speech and expression from government officials the students considered insufficiently open to their burgeoning anti-establishment ideas and frustrations.

Times change, and now Berkeley officials — perhaps to their own bemusement — find themselves representing a new Establishment: one grounded in the idea that all students are free, but some should be more free than others.

The university is currently facing a federal lawsuit that Alliance Defending Freedom filed on behalf of students seeking official recognition for their organization, the aforementioned Young Americans for Liberty. Berkeley officials withheld that recognition, claiming YAL is too similar to an already authorized group, the "Cal Libertarians," to justify a separate existence in its own right.

It’s an interesting assessment, considering that these same officials have already formally recognized the separate identities of the "Cal Berkeley Democrats" and the "Students for Hillary at Berkeley," as well as the "Progressive Student Association" and the "Socialist Alternative at Berkeley." Nor, apparently, did they have any trouble recognizing critical distinctions between the "Queer Alliance & Resource Center" and the "Queer Student Union."

By the same token, students in YAL and the Cal Libertarians see some pretty clear differences between their respective raison d'etres, but Berkeley policy insists that they try to bridge those gaps and congeal their separate agendas into a cohesive club whole — in the meantime, no recognition for YAL.

There are two problems with Berkeley’s position. One, once a university begins recognizing clubs, it really has no place discriminating by deciding who should and who should not make up a particular club, or which clubs should be combined with each other. Students may be encouraged to consider such a combination, but in the end, it should be up to the students to decide if an existing organization sufficiently meets their group’s particular needs and desires. As YAL mentioned in its application, it is aware of the Cal Libertarian club but has opted to form its own organization.

And two, the university — if it does decide to make itself the sole arbiter of which clubs will be recognized — should have to present clear, reasonable, and (most importantly) objective criteria for granting or withholding that recognition. Unfortunately, Berkeley’s only criteria seems to be the subjective impressions of certain select officials.

For the students, having the university make these calls is a little like having your parents tell you, "No, we don’t feel right about you dating Patty, but what about Peggy? She’s blonde, too." Or like requiring the "Swing Musicians Club" to join the already established "Jazz Lovers," because, after all, both groups like old songs.

The university’s position is also at odds with well-established Supreme Court decisions. In Healy v. James (1972), for instance, the high court ruled that a school must justify any decision to deny legitimacy to a club on something other than administrators' personal distaste for that club's point of view. Otherwise, the decision comes down to institutional discrimination, not administrative discernment.

That certainly appears to be the case in this instance, in which Berkeley officials seem to be balking less at the prospect of too many overlapping clubs than at the idea of one more conservative-leaning student organization on their campus. That's a danger the high court anticipated a quarter-century ago, in its Forsyth County v. Nationalist Movement ruling, which held that "[a] government regulation that allows arbitrary application … has the potential for becoming a means of suppressing a particular point of view."

The good news for Berkeley administrators is that this legal precedent offers them a clear way out of the corner they’ve been boxing themselves into. And, more than that, an opportunity to embrace again what was once their university’s reputation for promoting free speech, free expression, free association . . . and the enduring idea of a college campus as the truly free marketplace of ideas, where students can and should choose for themselves the beliefs on which they’ll build their lives.

Caleb Dalton is legal counsel with Alliance Defending Freedom and its Center for Academic Freedom, which represents Young Americans for Liberty at UC Berkeley in its lawsuit against university officials.

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