The U.S. Supreme Court recently upheld a California public law school’s nondiscrimination policy for student groups. But its ruling does not necessarily mean that other colleges’ policies are now immune to legal challenges.
The uncertainty stems in part from the type of policy that the justices ruled on. In the 5-to-4 ruling handed down on June 28, the 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 by requiring their proposed chapter to admit homosexual students as a condition for receiving official recognition and financial support.
The ruling, however, 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. More common at colleges, some experts and advocates say, is a policy of allowing student groups to have requirements for membership and leadership as long as those requirements are not discriminatory.
And the chief advocacy organizations challenging the constitutionality of such policies do not appear likely to back off. “I think, generally, this litigation will not go away,” Robb Jones, a prominent adviser to colleges on issues related to legal risk, recently told college lawyers at the annual meeting of the National Association of College and University Attorneys.
Further complicating the picture, the Supreme Court did not address the Christian Legal Society’s claim that Hastings applied its all-comers policy inconsistently. Rather, the court remanded the case to the U.S. Court of Appeals for the Ninth Circuit to take up that issue.
The case has been widely watched in part because similar conflicts have popped up at a long list of other colleges where students have tried to set up chapters of the Christian Legal Society or other religiously affiliated student groups. Although the Ninth Circuit court 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 the Christian Legal Society’s freedom of expressive association. Some colleges have carved out exceptions to their antidiscrimination policies in response to such challenges.
Fighting Over Facts
One of the central disputes in the Hastings case had been the question of which policy the Supreme Court should rule on: “accept all comers,” which Hastings had testified to having, or the written nondiscrimination policy on its books, which prohibited registered student organizations from having belief-based or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual. The Christian Legal Society’s lawyers had argued that the court should focus on the written antidiscrimination policy, which appeared much harder to defend as viewpoint-neutral.
The Supreme Court ended up becoming bitterly divided over which facts it was ruling on, with the majority opinion focusing on the accept-all-comers policy and the minority opinion arguing that the nondiscrimination policy should have been taken into account as well.
Justice Anthony M. Kennedy joined the court’s liberal wing in rejecting the Christian Legal Society’s argument that the policy infringed on its 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 the opinion left open the possibility that the lower courts might still determine that the policy had 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 said.
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 said.
The only member of the majority to argue specifically that the nondiscrimination policy was constitutional was John Paul Stevens, in a concurring opinion that no other justice signed.
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.
Reactions and Reach
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 welcoming the court’s ruling as validating a policy “rooted in equity and fairness.”
But Michael W. McConnell, a lawyer who argued the Christian Legal Society’s case before the Supreme Court, said “the policy that the Supreme Court addressed is highly abstract and hypothetical.” He expressed confidence that the student group would be able to demonstrate in the lower court that Hastings had enforced its policies selectively, in a manner that hurt religious groups.
Among the organizations that had submitted friend-of-the court briefs in support of the plaintiff, the Foundation for Individual Rights in Education issued a statement predicting that the court’s ruling would 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. The ruling “sends a message that public universities need not lend their name and support to groups that discriminate,” said the ACLU’s legal director, Steven R. Shapiro.
But it is unclear exactly what portion of public colleges even have all-comers policies. Mr. Jones, senior vice president and general counsel for claims management at United Educators Insurance, said such policies are far less common than those prohibiting student groups from discriminating on the basis of traits such as race or gender. And Gregory Roberts, executive director of the ACPA—College Student Educators International, offered a similar assessment, though the general counsel for the American Council on Education said both types of policies were relatively common.
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 networks has removed much of student groups’ needs for access to officially sponsored communications channels.
In an article published 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 Supreme Court’s majority also discounted as “more hypothetical than real” the Christian Legal Society’s argument that requiring student groups to accept everyone leaves 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.
