Supreme Court Decision on Law School's Anti-Bias Policy May Have Limited Impact

Photograph by Noah Berger for The Chronicle

The case, a challenge filed by a student group at the U. of California's Hastings College of the Law, pitted colleges' non­discrimination policies against student organizations with belief-based membership criteria.
June 28, 2010

A bitterly divided U.S. Supreme Court held Monday that a California public law school did not violate the First Amendment in denying official recognition to a Christian student group that effectively excluded homosexual students from membership based on their beliefs and behaviors. But the parties involved in the case, as well as experts on student organizations, disagree over whether many colleges have policies similar enough to the one at issue in the case to be affected by the decision.

In its 5-to-4 ruling, the Supreme Court held that the University of California's Hastings College of the Law acted reasonably, and in a viewpoint-neutral manner, in refusing to officially recognize and give funds to a campus chapter of the Christian Legal Society because the group refused to abide by the school's requirement that student groups open their membership to all.

Justice Anthony M. Kennedy joined the court's liberal wing in rejecting the Christian Legal Society's argument that the policy infringed on the student group's First Amendment freedoms of expression and association. The majority opinion, written by Justice Ruth Bader Ginsburg, declared that it is "hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers," although it left open the possibility that the lower courts may still determine that the policy has been inconsistently applied.

"Hastings, caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership," the majority opinion says.

In a harshly worded dissent, the four other justices on the court denounced the majority opinion as resting on the principle of "no freedom of expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

The minority opinion, written by Justice Samuel A. Alito Jr., called the court's decision "a serious setback for freedom of expression in this country" and accused the majority of selectively interpreting the factual record to ignore evidence that Hastings had discriminated against the Christian student group based on its views. "The court's treatment of this case is deeply disappointing," and its decision "arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups," the minority opinion says.

Reactions and Reach

The case had been widely watched partly because similar conflicts have popped up at a long list of other colleges where students have tried to set up Christian Legal Society chapters. Although the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of Hastings in the dispute before the Supreme Court, the U.S. Court of Appeals for the Seventh Circuit had held that a similar policy at Southern Illinois University at Carbondale infringed on Christian Legal Society's freedom of expressive association, and some colleges had carved out exceptions to their antidiscrimination policies in response to similar challenges from religious groups.

Leo Martinez, who was named as the defendant in the lawsuit as the Hastings law school's acting chancellor and dean, issued a written statement on Monday welcoming the court's ruling as validating a policy "rooted in equity and fairness." His statement said the law school's intent "has always been to ensure the leadership, educational and social opportunities afforded by officially recognized student organizations are available to all students attending public institutions."

The Supreme Court's decision was similarly welcomed by Edris W.I. Rodriguez, a spokesman for Hastings Outlaw, a registered organization for gay, lesbian, and bisexual Hastings law students that had intervened as a defendant in the case. In an e-mail message, he said, "We are pleased that no student will be forced to have his or her student-activity funds support an organization in which he or she cannot participate."

But Michael W. McConnell, a lawyer who argued the Christian Legal Society's case before the Supreme Court, predicted that the ruling actually would have a limited impact on colleges, because, he argued, few actually have the sort of all-comers policy for student groups that the majority ruled on.

"The policy that the Supreme Court addressed is highly abstract and hypothetical," said Mr. McConnell, director of the Stanford Law School's Constitutional Law Center. He expressed confidence that the Christian Legal Society would be able to demonstrate in the lower court that Hastings has enforced its policies selectively, in a manner that hurts religious groups.

The Alliance Defense Fund, which helped represent the Christian Legal Society members seeking recognition on campus, similarly predicted that Monday's decision would have limited impact because few other institutions have exactly the same policy. In a written statement, Gregory S. Baylor, the group's senior legal counsel, said the Hastings policy requires the Christian Legal Society to allow atheists to lead Bible studies or the College Democrats to allow the election of Republican officers. "We agree with Justice Alito in his dissent that the court should have rejected this as absurd," Mr. Baylor said.

Among the organizations that had submitted friend-of-the court briefs in support of the Christian Legal Society, the Foundation for Individual Rights in Education on Monday issued a statement predicting the court's ruling will lead colleges to withdraw recognition from devoutly religious groups. It called the ruling "a loss for diversity and pluralism on campus, not a win."

By contrast, the American Civil Liberties Union, which submitted a friend-of-the-court brief supporting the law school, issued a statement praising the decision. "Today's ruling sends a message that public universities need not lend their name and support to groups that discriminate," its legal director, Steven R. Shapiro, said.

Justice Ginsburg was joined in the majority opinion by Justices Kennedy, Stephen G. Breyer, John Paul Stevens, and Sonia M. Sotomayor. In the dissenting opinion, Justice Alito was joined by Chief Justice John G. Roberts Jr., and Justices Antonin Scalia and Clarence Thomas.

Fighting over Facts

One of the central disputes in the case had been the question of which policy the Supreme Court should rule on: the "accept all comers" policy that Hastings had testified to having, or the written nondiscrimination policy on its books, which prohibited registered student organizations from having belief- or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual. The Christian Legal Society's lawyers and the court's dissenting minority had argued that the court should focus on the written antidiscrimination policy, which appeared much harder to defend as viewpoint-neutral.

Justice Alito's dissent argued that the courts had been presented "overwhelming evidence" that Hastings denied recognition to the proposed Christian Legal Society chapter pursuant to the written nondiscrimination policy. Although Hastings said its "accept all comers" policy had been in place since 1990, there was no evidence of its having been put in writing or brought to the attention of others at the law school prior to the July 2005 deposition of Mary Kay Kane, then the dean of the law school, in connection with the Christian Legal Society's lawsuit. Moreover, the justices in the minority argued, the courts had been offered evidence that Hastings had routinely registered student groups with viewpoint-based membership and leadership criteria, and had taken steps to ensure that groups accept all comers only after the Christian Legal Society chapter pointed out a double standard in response to Dean Kane's assertion that an all-comers policy was in place.

The majority opinion, Justice Alito wrote, "ignores strong evidence that the accept-all-comers policy is not viewpoint-neutral because it was announced as a pretext to justify viewpoint discrimination."

The majority opinion argued that the Christian Legal Society had itself stipulated, in U.S. District Court, that the all-comers policy was the only one at issue. The majority rejected the society's "unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as written," but the court could not even reach agreement on what the lower-court stipulation had been. The justices in the minority said the Christian Legal Society had conceded the existence of an all-comers policy but had not abandoned the argument that the nondiscrimination policy had been used.

The question of whether many public colleges even have all-comers policies was unsettled Monday after the court handed its decision down. Gregory Roberts, executive director of the American College Personnel Association, a group that represents student-affairs professionals at private and public colleges, said it is common for colleges to require student groups to follow nondiscrimination policies, but he was unfamiliar with all-comers policies such as the one Hastings said it applied. But Ada Meloy, general counsel for the American Council on Education, said, "I think that both are relatively common."

Questioning Motives

The majority opinion praised the all-comers policy for ensuring that the opportunities offered by student groups are available to all students and that no Hastings student is forced to provide financial support to a group that would not have him or her as a member. The opinion said the all-comers policy also helps Hastings police its written nondiscrimination policy without having to take on the "daunting labor" of trying to determine whether a group had excluded someone based on its biases or the person's beliefs.

The Christian Legal Society had proposed that Hastings prohibit discrimination based on a person's sexual orientation but allow exclusions from membership based on beliefs or behavior—in essence allowing religious groups to bar from membership people who endorse or unrepentantly engage in homosexual behavior. In response, the majority opinion cited Supreme Court precedents holding that laws against certain conduct can amount to invitations to discrimination, that a law barring homosexual behavior opens the door to discrimination against gay and lesbian people.

In seeking to exclude people based on beliefs, the Christian Legal Society "seeks not parity with other organizations, but a preferential exemption from Hastings' policy," the majority said.

The minority opinion challenged the idea that Hastings even had a true "accept all comers" policy, arguing that the law school had acknowledged that it lets student groups have certain membership and conduct requirements that are not discriminatory.

In addition to signing on with the majority, Justice Stevens wrote a separate opinion in which he argued that even the written nondiscrimination policy challenged by the Christian Legal Society was "plainly legitimate" and "meant to promote, not to undermine, religious freedom." While a free society must tolerate the existence of groups that exclude or mistreat people based on race, religion, or gender, it "need not subsidize them, give them its official imprimatur, or grant them equal access to law-school facilities," Justice Stevens said.

Justice Kennedy wrote a separate concurring opinion in which he made clear that he had accepted the law school's characterization of the factual record, and that is what swayed him. If the court had evidence before it that the purpose or effect of the policy was to stifle or undermine speech, that "would present a case different from the one before us," he said.

Carrot or Stick?

The justices in the majority and minority also disagreed strongly with each other over the question of whether the law school's requirements had imposed a serious hardship on the students seeking to form a campus chapter of the Christian Legal Society.

The majority said the Hastings policy "is dangling the carrot of subsidy, not wielding the stick of prohibition," because it leaves such groups free to exclude anyone they wish, so long as they are willing to go without the various benefits that come with official recognition, such as institutional financial support and the use of campus chalkboards and bulletin boards to advertise meetings.

"Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation," said the majority opinion, which argued that the emergence of electronic media and online social networking sites has removed much of student groups' needs for access to officially sponsored communications channels.

In an article published Monday on the Huffington Post Web site, Adam Goldstein, a lawyer for the Student Press Law Center, challenged such logic as akin to justifying racial discrimination at lunch counters on the grounds that people can eat at some other location. "The existence of places where rights aren't being violated can't be held up to defend the violation of rights occurring somewhere else," he said.

The majority also discounted as "more hypothetical than real" the Christian Legal Society's argument that requiring student groups to accept everyone will leave them vulnerable to being infiltrated and subverted by students who oppose them. "Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs," the majority said.

The dissenters challenged the law school's assertions that it had made sincere efforts to try to accommodate students who belonged to the Christian Legal Society, citing evidence showing that administrators at the school had responded to requests for access to facilities by dragging their feet until the planned events had passed.

"The Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad," the minority opinion said.