The U.S. Court of Appeals for the Ninth Circuit weighed in Tuesday on whether nondiscrimination policies for student groups can be more narrowly written than the one addressed in an important 2010 Supreme Court decision.
The unanimous ruling, by a three-judge panel of the appeals court, upheld San Diego State University’s policy for recognizing student groups. But the panel questioned whether the university had applied its policy fairly.
Two religious groups, a fraternity and a sorority, had challenged the policy in federal court, arguing that the university had violated their First Amendment rights by not officially recognizing them. Both groups limit membership to students who affirm their Christian beliefs. Official recognition gives student groups access to various benefits, such as free meeting space, publicity in student publications, and use of the university logo.
The ruling in the case, Alpha Delta Chi-Delta Chapter v. Charles Reed, is the first major decision to rely on last year’s U.S. Supreme Court decision upholding the nondiscrimination policy for student groups at the University of California’s Hastings College of the Law.
In that 5-to-4 ruling, Christian Legal Society v. Martinez, handed down in June 2010, the justices rejected arguments by the Christian Legal Society that the law school had violated the First Amendment rights of students by denying official recognition and financial support to groups that barred gay students.
That ruling focused on a type of policy that is found at only some colleges: an “accept all comers” rule, requiring any student group seeking official recognition to be open to anyone who wishes to join.
San Diego State’s policy, however, is more narrowly written. Instead of “prohibiting all membership restrictions,” it prohibits membership restrictions “only on certain specified bases, for example, race, gender, religion, and sexual orientation,” wrote Judge Harry Pregerson of the appeals-court panel.
The plaintiffs in the case said that the university policy “allows secular belief-based discrimination while prohibiting religious belief-based discrimination,” according to the court’s summary of the Christian groups’ arguments.
For example, a student Republican group would be allowed to exclude Democrats because the policy does not prohibit discrimination on the basis of political belief. “But a Christian group could not exclude a Muslim student because that would discriminate on the basis of religious belief,” the summary said.
That sounds convincing, Judge Pregerson wrote, but there is no evidence that the policy was meant to suppress any viewpoints. And the university was not requiring the Christian groups to accept non-Christian members, the court wrote, but was setting conditions for recognition as an official student group.
“Were San Diego State compelling plaintiffs to include non-Christians, plaintiffs might have a sound argument. But as Christian Legal Society makes clear, there is a difference ‘between policies that require action and those that withhold benefits,’” Judge Pregerson wrote.
The appeals court did strike one note in favor of the Christian groups today, sending the case back to the federal district court to decide whether the university had applied its policy fairly to all student groups.
“Plaintiffs also offer evidence that San Diego State has granted official recognition to some religious student groups even though those groups, like plaintiffs, restrict membership or eligibility to hold office based on religious belief,” said the court’s opinion.
For example, officers of a campus group for Catholic students must be “members, in good standing,” with the Catholic Church. And even some nonreligious student groups may be discriminating in violation of the policy, the court said. For instance, leaders of the African Student Drama Association must be from Africa, the court noted.
