Posts Tagged ‘Student rights’

California Legislature seeks creation of “Discrimination-Free Zones” at all state universities

April 12, 2010

I have been rough on my home state in recent posts.  Whether chiding the University of California Regents over a proposed speech code or pointing out the contradictory approaches to student speech, the lack of respect for student speech in California has caused me to cringe.  But just when I thought I was being too hard on the State I love, the California Legislature moves one step closer to creating “Discrimination-Free Zones” on all public school campuses, including universities.  And now I don’t feel so guilty. 

According to the text of ACR 82, which passed another hurdle in the legislature last week, California wants all public institutions of learning to implement “discrimination-free” zones by enacting new policies, offering new counseling services and providing new conflict management groups to “provide a safe haven from intolerance or discrimination.”  Here are the relevant portions of the resolution: 

Resolved, by the Assembly of the State of California, the Senate thereof, concurring, That the Legislature of the State of California hereby encourages all public education institutions, working with students, teachers, faculty, and other members of the public education community, to designate each campus as a “Discrimination-Free Zone” to provide a safe haven from intolerance or discrimination; and be it further

Resolved, That all public education institutions, prekindergarten through university campuses, are encouraged to develop and enact policies that support tolerance and acceptance of others regardless of their race or ethnicity, religion, disability, gender, gender identity, sexual orientation, nationality, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code; and be it further

Resolved, That all public education institutions are encouraged to enact procedures, such as counseling services and conflict management, that meaningfully address acts of discrimination that occur on campus; and be it further

Resolved, That all public education institutions are encouraged to notify parents and the campus community should be notified of existing policies and procedures that encourage tolerance of others; and be it further

Resolved, That all public education institutions are encouraged to use existing resources to identify themselves as “Discrimination-Free Zones” through placards, signs, notices of available services, and other appropriate identifications to create a campus climate that welcomes diversity and supports the tolerance of others

Who is behind this, you ask?  The California Faculty Association, the University of California, Equality California, the PTA and the California State Student Association, among others

While this is only a resolution and not a binding bill, the intent of the California Legislature could not be more clear:  free speech must yield to “tolerance and acceptance of others.”  Unfortunately for California college students, the encouragement of “policies that support tolerance and acceptance of others” will inevitably result in more campus speech codes and censorship, similar to what happened at Spokane Falls Community College last year. 

It turns out I was wrong the other day when I said that California has free speech schizophrenia.  It does not.  A few colleges and universities strive to protect students’ rights.  But these are the outliers.  The Legislature has made it clear that California public policy is to dismantle the marketplace of ideas.   We will try to make sure that does not happen.

California’s Free Speech Schizophrenia

April 7, 2010

Spring is in the air in California.  While the Sierra Nevada gets a late spring snowstorm, the California golden poppies have opened along I-5.  Spring is a time of transition from one season to the next, and also a time when high school seniors eagerly await that wonderful transition from high school drama to college coolness.  At this time of year particularly, seniors await acceptance letters from their favorite college or university.  But once the letters arrive, how is a high school senior going to choose his or her school?  If the decision has anything to do with free speech policies on campus, it may be wrought with confusion, especially for students considering California schools. 

California’s public colleges and universities, it seems, have no institutional respect for freedom of speech on campus.   A series of contradictory policy decisions have made the Golden State’s higher education system a mess when it comes to freedom of speech. 

Take last week, for example.  On Friday, FIRE’s Samantha Harris wrote about the great news at San Francisco State University.  SFSU repealed its illegal speech zone policy and now allows literature distribution in the outdoor areas of campus so long as pedestrian traffic is not impeded.  Even better, SFSU removed the official free speech zones so that students can now engage in speech in most outdoor areas.  But down the street, the University of California Hastings College of the Law continues to enforce its “nondiscrimination” policy against the Christian Legal Society, banning it from campus. 

On Tuesday, I wrote that the University of California system is considering a new speech code that will give administrators great ability to censor disfavored student speech.  This comes on the heels of the UC system amending its harassment policy to protect student speech.  But at the same time, the Los Angeles Community College District, the largest community college district in the United States, fights to keep an even more speech-restrictive harassment policy. 

To top it off, we have good information that several California State University system campuses still maintain an unconstitutional speech code that was struck down and amended two years ago. 

For a state that supposedly accords broad protection to student speech and that has one of the best public higher education systems in the country, California’s public colleges and universities remain behind the curve on free speech issues.  The Golden State can do better.

CLS v. Martinez: A Response to Professor Hamilton

April 7, 2010

There are so many things wrong with Marci Hamilton’s Findlaw column about Christian Legal Society v. Martinez that it’s hard to know where to start.  So I’ll start at the beginning and work my way through, hitting the most serious deficiencies in the column.

The column states that this case will cause the Supreme Court to “wade into the culture wars morass.”  To be sure, this case arises out of a leftwing university’s attack on a theologically orthodox religious group.  However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions.  At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure.  For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators.  In the past, groups on the Left resisted officials they perceived to be conservative.  Now the roles are reversed.  Just as the courts vindicated the Constitution in those cases, they should do so now as well.  There is no need for the Court to “choose sides” in the culture war.  It simply needs to uphold the Constitution.

Professor Hamilton declares that “no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader.”  This is simply incorrect.  CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so “unrepentantly,” which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner.  Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton’s column reveals that she read CLS’s opening brief, this misstatement of CLS’s position regarding human sexuality is surprising.  Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups (and social scientists) do likewise.  To suggest that groups like CLS embrace and impose more categorical “rules” is misleading, and in a way that does not put CLS in a good light.  Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton’s column characterizes CLS’s policies this way:  “In other words, homosexuals need not apply.”  This is, at best, grossly misleading.  Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS.  To the extent the word “homosexuals” is understood to include such persons, Professor Hamilton’s assertion that “homosexuals need not apply” is false.  To the extent that the word “homosexuals” includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton’s characterization of CLS’s policies is also false.

Next Professor Hamilton states that “[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.”  This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status:  the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed “religious discrimination.”  This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that “this case hardly seems worth the candle.”  I respectfully disagree.  First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS.  It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities.  Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton’s suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations.  If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups?  Why would student groups regularly use them to pursue their diverse missions?  I’ve spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant.  Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury.  The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive.  It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students.  The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS’s desire for the Hastings “logo and imprimatur.”

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and “sexual orientation” nondiscrimination rules.  In addition to examining the benefits denied, courts assess the effect of complying with the rule in question.  In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message.  Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that “this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements.”  Religious groups, like all others, are “entitled” to the treatment that the Constitution mandates.  And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights.  Professor Hamilton contends that such groups seek equal treatment “despite the Establishment Clause, the Constitution’s separation of church and state,” apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum.  But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS.  The Court’s decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even “irrational” – for religious groups like CLS to seek access to speech forums “from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.”  I don’t see why this is inappropriate.  CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so.  Its receipt of the benefits of recognition is entirely consistent with Hastings’ stated purpose of encouraging a robust debate on a virtually unlimited set of topics.  CLS’s use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way.  In any event, it is one thing for a government entity to “stake out a position” with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government.  That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS’s argument that Hastings violated its Free Speech Clause rights “is a real stretch.”  Again, I disagree.  Professor Hamilton fails to address the significance of the Supreme Court’s decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a “sexual orientation” non-discrimination law to an organization that considers homosexual conduct immoral.  In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive.  In Rumsfeld, the law schools lost because military recruiters would not become “members” of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism.  The Court indicated that if the government were conditioning the receipt of a benefit upon a group’s acceptance of members who oppose the group’s mission, the Constitution would be violated.  Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become “members,” but also to become officers.  Accordingly, the Rumsfeld decision supports CLS’s position.

Professor Hamilton gets one thing right:  she observes that Hastings is “openly opposed” to CLS’s beliefs.  To be sure, this observation is the starting point for her somewhat strange assertion that it is “irrational” for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy.  In any event, her observation about Hastings’ opposition to CLS’s beliefs gets to the heart of this case.  It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit.  Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message.  Under Professor Hamilton’s logic, it would be “rational” for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint.  Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be “fully satisfied,” needs the law school to entirely eliminate “sexual orientation” from its non-discrimination policy and wonders whether its civil rights action is just “stage one” in some larger “campaign” at the school.  First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position.  CLS’s lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message.  Second, neither CLS national nor any student chapter has mounted any sort of larger “campaign.”  On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom.  Once that happened, they did not take any additional actions regarding non-discrimination policies.  They simply went about the business of pursuing their mission.  Simply put, CLS does not object to law schools’ recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS “misstated the Law School’s policy:  That policy states that no organization is permitted to put its – or its members’ – discriminatory beliefs into action.”  I am afraid that it is Professor Hamilton who misunderstands the law school’s policy – and the nature of CLS’s argument.  At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004.  When Hastings withheld recognition from CLS in 2004, it invoked the religion and “sexual orientation” provisions of its written non-discrimination policy.  CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles.  For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles.  CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional.  In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no group could exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings’ violation of the right of expressive association.

Professor Hamilton asserts that CLS’s argument “rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure.”  This assertion reflects a serious misunderstanding of CLS’s argument.  As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group’s political views while denying religious groups the freedom to deny leadership to individuals who rejected the group’s religious views.  The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS’s pursuit of equal treatment contradicts what she characterizes as the traditional “Republican Party” view that religious organizations should not accept government benefits.  CLS is not the Republican Party and is not a Republican group.  As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles.  Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups.  However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly.  At Hastings, it has not been administered fairly, and that is what CLS has challenged.

Note:  This column was submitted to FindLaw Writ, but it did not agree to publish it.

First CLS, Then the Klan?

March 2, 2010

Today, Professor Marci Hamilton and I debated Christian Legal Society v. Martinez at Cardozo School of Law in New York City.  Professor Hamilton argued that the Supreme Court should not hold that Hastings College of the Law violated the Constitution by refusing to confer registered student organization status on its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.

Prof. Hamilton asserted that the “bottom line question” in this case is as follows:  if the Court orders Hastings to recognize CLS, will public law schools be required to recognize the Ku Klux Klan?

Although it is not difficult to imagine that a Justice might ask such a question during oral argument, I find it hard to agree that this question is the “bottom line” in the case.  The bottom line is whether Hastings violated the Constitution by pressuring a religious group to subordinate its religious character.

During the “equal access” debates in the 1980s, opponents argued that requiring public schools to give student Bible clubs access to meeting space would lead to the proliferation of Nazi, skinhead, and Klan groups on campus.  Over 25 years after the adoption of the federal Equal Access Act, we can safely say that these fears were utterly unfounded.  The notion that groups of racist law students are poised to seek official recognition from America’s public law schools, just waiting for the Supreme Court to rule in CLS’s favor, is frankly preposterous.

More fundamentally, there is an enormous distinction between an entity engaging in invidious race discrimination and religious organization requiring its leaders and members to share its religious views.  A synagogue that requires its rabbi to be Jewish is not like the Klan.  A mosque that requires its imam to be Muslim is not like the Klan.  And a CLS chapter that requires its Bible study leaders to be a Christian is not like the Klan.  Sometimes, unfortunately, it is necessary to say what ought to be self-evident.

Jewish Groups Split on CLS v. Martinez

February 21, 2010

JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

CLS v. Martinez: A Debate at SMU Law

February 18, 2010

CLS v. Martinez Debate - ADF Attorney Greg Baylor, Professor Maureen Armour , Professor Linda Eads

Earlier this week, I participated in a debate regarding Christian Legal Society v. Martinez at Southern Methodist University’s Dedman School of Law in Dallas.  I argued that the U.S. Supreme Court should rule that Hastings College of the Law violated the Constitution when it refused to recognize its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.  SMU law professor Linda Eads energetically but graciously advocated a contrary result.

In my prepared remarks, I shared my belief that Hastings’ disagreement with CLS’s counter-cultural positions on religious doctrine and sexual morality was at least in part behind the school’s treatment of the CLS chapter.  Professor Eads essentially agreed with me, but then said something that truly surprised me – that Hastings should have the power to punish a counter-cultural group like CLS in order to promote “the culture it wants to foster.”

As I see it, a private educational institution, such a religious one, does have (and should have) the power to foster a certain kind of culture, free from the restraints the Constitution imposes upon government educational institutions.  But the First Amendment forbids the government from using its power to restrain the expressive activity of a group whose views contradict the government’s simply because of that disagreement.

My experience has been that many public university administrators fail to adequately grasp that the Constitution limits their power – something their  private school counterparts do not experience.  A greater understanding of this reality by America’s public colleges and universities would go a long way towards restoring freedom of speech on those campuses.

From “In Loco Parentis” to Just Plain Loco

December 8, 2009

If it weren’t bad enough that some colleges and universities think they need to tell students how to think and what to believe, one public university has actually tried to force students deemed overweight—by the university—to exercise.

Beginning with entering students in 2006, Lincoln University, a public university in Pennsylvania, instituted a requirement that any student with a Body Mass Index (BMI) of 30 or more would be required to take a physical fitness course called “Fitness for Life” in order to graduate.  The students’ BMI was not self-determined—rather, it was determined through a mandatory exam by college officials.  If a student had a BMI of 30 or higher, they were required to take the fitness course in order to graduate.

Student Tiana Lawson protested the requirement in The Lincolnian:

I didn’t come to Lincoln to be told that my weight is not in an acceptable range. I came here to get an education which, as a three time honor student, is something I have been doing quite well, despite the fact that I have a slightly high Body Mass Index.

Ms. Lawson’s editorial brought national attention to this policy, and it was thankfully repealed last week after the university received several complaints. 

This is one of the more ridiculous university policies I’ve ever heard of—it is condescending, paternalistic, and intrusive, as Temple University Law Professor David Kairys points out.  There is nothing wrong with encouraging students to adopt a healthy lifestyle, but this policy crosses the line.  As Ms. Lawson pointed out, the students are there to receive an education, not to have their personal characteristics scrutinized by a “nanny” university.

Given their recent attempts to control the bodies and exercise schedules of their students, it is not surprising that the school also apparently attempts to control student speech.  Lincoln University has a “red light” rating  from FIRE with regard to its policies affecting speech.  One policy prohibits “actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic.” 

The irony of prohibiting students from simply making a “comment” about someone’s characteristics but essentially calling some of its students too “fat” to graduate was apparently lost on Lincoln.  Let’s hope Lincoln’s speech code soon goes the way of the fitness requirement, and Lincoln students are as free to exercise their First Amendment rights as they are to choose whether they want to exercise.

U.S. Supreme Court agrees to hear lawsuit against UC-Hastings

December 7, 2009

The Supreme Court will decide whether the Constitution allows a public university to use a “non-discrimination” rule to punish a religious student group that draws its leaders and voting members from among those who share its religious commitments.  The Court announced today that it will review a lower court decision in Christian Legal Society v. Martinez, a case involving the University of California’s Hastings College of the Law.

Christian Legal Society (CLS) is an association of Christian lawyers, law students, judges, and law professors.  The foundation of CLS is faith in Jesus Christ.  Like many religious organizations, it adopted a statement of faith setting forth its basic religious beliefs.  In addition, CLS has expressed its adherence to the traditional Christian view of human sexuality, i.e., that sexual intimacy should occur only within the bond of a marriage between one man and one woman.

Hastings encourages the formation of student groups by offering them numerous benefits, including access to meeting space, communications mechanisms, and funding.  A group of CLS law student members at Hastings formed a CLS chapter and sought recognition from law school officials.  CLS indicated that all are welcome to attend CLS meetings but that the chapter’s leaders – as well as those who select them – must be CLS members.  One must sign the statement of faith to be a CLS member.

Hastings concluded that CLS’s religious standards for leadership and voting membership constitute “discrimination” on the basis of religion and “sexual orientation.” In response, CLS pointed out that its leadership and membership policies are not “discrimination,” which is properly defined as the invidious reliance upon irrelevant personal characteristics.  CLS also argued that its sexual morality standards do not constitute “sexual orientation,” given their emphasis on conduct rather than “orientation” and given that all extramarital sexual conduct is considered sinful, whether same-sex or opposite-sex.

Hastings rejected these arguments, and CLS asked the federal courts to vindicate its constitutional rights.  Both the federal district court in San Francisco and the U.S. Court of Appeals for the Ninth Circuit sided with Hastings.  And now the Supreme Court will consider the case.

Much is at stake.  CLS itself has numerous chapters at law schools across the country.  Many of them have fought successfully for their religious freedom, often through litigation.  Many other campus religious groups draw their leaders from among those who share their religious commitments.  If the Court rules against CLS, public universities could force student groups to accept as leaders and voting members individuals who oppose the groups’ beliefs.

More broadly, the freedom of all religious groups – not just campus organizations – to associate around shared religious commitment is under attack.  For example, the ACLU and its allies are working to exclude faith-based social service providers from federally funded programs on the ground that they “discriminate” on the basis of religion and “sexual orientation.”

It is no secret that theologically conservative Christianity is not particularly popular with the elites who control much of America’s higher educational system.  The traditional view of human sexuality is seen as a particularly galling departure from the prevailing campus orthodoxy.  University administrators, moreover, seem to have a lot a trouble complying with the First Amendment.  Let us pray that the Supreme Court will vindicate the foundational principles underlying our first freedom.

Who’s talking about this case?
The Volokh Conspiracy
NRO:Phi Beta Cons
The Chronicle of Higher Education
The Fire

Is the Supreme Court Getting Ready to Rule on the Rights of Campus Student Groups?

November 13, 2009

Observers of the United States Supreme Court are noting the unusually-long scrutiny the justices are giving to Christian Legal Society v. Martinez, the case where the University of California-Hastings (in San Francisco) denied permission to the Christian Legal Society to meet on campus because it ran afoul of its nondiscrimination policy, as ADF has seen on other university campuses.  Specifically, CLS requires its leadership to agree with the Christian group’s statement of faith in Christ and to obey the Bible’s teachings to abstain from sexual relations outside of marriage, defined as one man and one woman.  UC-Hastings claims CLS engages in “religious discrimination” because atheists and Buddhists cannot become leaders of the Christian Legal Society.  Of course, environmentalist groups or other ideological student groups are free to require that potential officers or members agree with the viewpoints they advocate in order to join.  UC-Hastings also views CLS’s views on sexual purity before marriage as “sexual orientation” discrimination. 

The Christian Legal Society sued, claiming that UC-Hastings was violating its First Amendment right to expressive association.  The federal district court ruled against CLS.  The U.S. Court of Appeals for the Ninth Circuit also earlier this year ruled against the Christian Legal Society, in a decision shorter than a haiku.  The decision, in its entirety, states:

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group.  The conditions on recognition are therefore viewpoint neutral and reasonable.  Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).

So CLS appealed to the U.S. Supreme Court.  The respected SCOTUSblog highlighted this case as an important one to watch at the Supreme Court.  According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September.  But no one imagined that by mid-November we would still be waiting for the Supreme Court to act.  Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices).  A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.

However, the Supreme Court has now delayed deciding what to do with the case for six conferences.  This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his law.com blog about what is going on with the case.

The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case.  Calling for the record is also an odd and unusual step for the justices to take.  What is going on here?  Are the justices agonizing over some issue or fact?  Are they struggling to reach a consensus on what to do with the case?

For what it’s worth, here is my speculation.  We know for sure that at least one or more justice is interested in the case because it takes a conscious, affirmative act by the justices to pull a case off the orders list, especially when it happens six times in a row.

Possibly, the justices want to examine the record to see what exactly is UC-Hastings’ policy.  UC-Hastings has shifted between two positions on what its policy is.  At times in the litigation, the University has claimed that it singled out CLS for exclusion from campus becasue CLS was “guilty” of religious and “sexual orientation” discrimination by the way it limits its membership to conform with its beliefs.  At other times, UC-Hastings has stated (as the Ninth Circuit’s decision reflects) that its policy was to require all student organizations to accept any students as members.  So the vegetarian club would have to accept deer hunters and steak lovers as members, the Socialist club would have to accept free market libertarians as members, etc.

The latter policy (all groups must accept any student as a member) is massively overbroad and shockingly unconstitutional.  The University cannot possibly justify a policy that prohibits all students from forming any group limited to like-minded individuals.  If the Supreme Court accepts the case for review and addresses that policy, we might have a 9–0 reversal of the Ninth Circuit.  But is that the policy UC-Hastings has or not?  Maybe that is why the high court has called for the record from the lower courts.

ADF has other cases in the pipeline that the Supreme Court could take to address the more limited question of how the nondiscrimination policy banning religious and “sexual orientation” discrimination apply to private student groups meeting on a public university campus.  The Supreme Court does not necessarily need to address that question in the UC-Hastings case.

So, what will happen?  Will the Supreme Court grant review and hear oral arguments?  Will it summarily reverse and reject the horribly unconstitutional policy of UC-Hastings requiring all student groups to accept any student?  Will it simply deny review after examining the case for weeks?  And when will that happen?  We simply don’t know, so the speculation mounts.  Maybe we will get some clarity from the Supreme Court on Monday, but who knows?  Stay tuned.


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