Ruling Is Unlikely to End Litigation Over Policies on Student Groups

June 30, 2010

Colleges should not be lulled into thinking their policies on student groups are immune to legal challenges based on the U.S. Supreme Court's decision this week to uphold the policy at a California public law school, a group of higher-education lawyers were told here on Wednesday.

"I think, generally, this litigation will not go away," Robb Jones, a prominent adviser to colleges on issues related to legal risk, said during a panel discussion of the Supreme Court's ruling held during the annual conference of the National Association of College and University Attorneys.

Whether most colleges' student-group policies would pass muster in the Supreme Court remains unclear, and the chief advocacy organizations challenging the constitutionality of such policies do not appear likely to back off as a result of the high court's latest decision, said Mr. Jones, senior vice president and general counsel for claims management at United Educators Insurance.

In the 5-to-4 ruling it handed down on Monday, the Supreme Court rejected arguments by the Christian Legal Society that the University of California's Hastings College of the Law had violated the First Amendment rights of students wishing to establish a campus chapter by requiring their proposed group to admit homosexual students as a condition for receiving the school's official recognition and financial support.

The ruling, however, focused on a type of policy Mr. Jones said is found at only a minority of colleges: an "accept all comers" policy requiring any student group seeking official recognition to be open to anyone who wishes to join. More common at colleges, Mr. Jones said, is a policy of allowing student groups to have requirements for membership and leadership as long as those requirements are not discriminatory.

The Christian Legal Society's lawyers had argued that the Hastings law school initially rejected the proposed campus chapter's application based not on an "all comers" requirement, but on a campus nondiscrimination policy that said student groups cannot have membership and leadership criteria that exclude students for reasons of religion or sexual orientation. Such nondiscrimination policies, the Christian Legal Society argued, preclude students from organizing groups based on religious beliefs, infringing on their First Amendment rights of free expression and association.

'An Open Question'

The Supreme Court ended up becoming bitterly divided over which facts it was ruling on, with the majority opinion focusing on the "all comers" policy and the minority opinion arguing that the harder-to-defend nondiscrimination policy should have been taken into account as well. The only member of the majority to specifically argue that the nondiscrimination policy was constitutional was Justice John Paul Stevens, in a concurring opinion that no other justice signed.

In his presentation on Wednesday, Mr. Jones said experts on the court disagreed over whether Justice Anthony M. Kennedy, the conservative-leaning justice who joined with more-liberal members to provide the majority's fifth vote in favor of the "all comers" policy, would have signed on to a decision upholding the other policy under consideration as constitutional. "This is an open question," he said.

In an interview, Mr. Jones added: "I would still argue that a nondiscrimination policy is constitutional," but "we can't offer anybody assurance that that is the case."

Several other colleges whose nondiscrimination policies were challenged by the Christian Legal Society have reached compromises in which they exempted religious groups from requirements to admit students of any religion or sexual orientation. As a legal matter, Mr. Jones said, those policies are "probably OK" and can remain in place following the Supreme Court's latest decision. As a practical matter, however, colleges might find it hard to retain such exemptions if students proposed forming a group based on "intolerable" religious beliefs, such as a conviction that women or black people are inferior.

In its ruling on Monday, the Supreme Court remanded the case back to the U.S. Court of Appeals for the Ninth Circuit to take up the Christian Legal Society's claims that the law school's "all comers" policy was being applied inconsistently. Mr. Jones told the lawyers gathered here that colleges may need to review the bylaws of their registered student organizations to make sure no group, including those for minority students, is rejecting students from membership or leadership for discriminatory reasons.