To: Senate Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: Senate Bill 2201 - Student Journalists on Private Campuses
Date: January 23, 2017

The North Dakota Catholic Conference opposes Senate Bill 2201 as an unconstitutional and troubling intrusion into the rights of a private institution.

Senate Bill 2201 dictates to universities how they should handle certain student expressions of speech. As applied to public universities, this a proper function of the state. The public universities and colleges are government institutions. As applied to private institutions, however, such attempts are impermissible infringements upon the rights of a private entity. The Legislative Assembly last session wisely rejected language to include private colleges and universities in the law. This body should do the same.

In
Boy Scouts of America v. Dale (1), the U.S. Supreme Court held that private, non-profit entities have a First Amendment right to prevent dilution of its message through government actions, even if the government was attempting to further a legitimate government interest. In short, the state may want to protect rights of students but it cannot do so by trampling on the rights of a private college or university.

Proponents of SB 2201 have pointed to California’s Leonard Law(2) to support their contention that private colleges and universities have no First Amendment protection against legislation like SB 2201. That state’s Leonard Law was used by a lower court to strike down Stanford University’s speech code.

That case, however, was decided before
Boy Scouts of America v. Dale. As one law professor has put it, “the opinion is clearly not good law after Dale” because a private university “has an expressive association right to . . . enforce rules banning speech.”(3) In fact, the Stanford case has since been unpublished, meaning it cannot be cited as good law.

The North Dakota Catholic Conference has no position on the other portions of the bill, but so long as the sections applying to private colleges and universities remain in the bill, we strongly oppose the bill and urge a Do Not Pass recommendation.(5)

1. 120 S. Ct. 2446 (2000)
2. Cal. Educ. Code Sec. 94367.
3.
Robert J. Corry, et al. v. The Leland Stanford Junior University, et al., No. 740309 (Cal. Super. Ct. Feb. 27, 1995) [Unpublished.]
4. David E. Bernstein,
The Right of Expressive Association and Private Universities' Racial Preferences and Speech Codes, 9 Wm. & Mary Bill Rts. J. 619 (2001), http://scholarship.law.wm.edu/wmborj/vol9/iss3/5
5. Proponents have indicated they might seek to have the following language inserted into the bill:
“This section does not apply to any postsecondary educational institution that is controlled by a religious organization, to the extent the application of this section would not be consistent with the religious tenets of the organization.”
This language does not resolve the problems. In fact, it compounds them.
First of all, as
Dale indicates, the right of a private entity to regulate its own affairs exists by virtue of it being private, not because it is religious. Second, the provision impermissibly invites courts to review the “religious tenets” of a religious organization. Such review is clearly unconstitutional under the First Amendment. See, e.g. Presbyterian Church v. Hull Church, 393 U.S. 440 (1969).