Must Public Universities Permit Religious Groups to Discriminate?
By Kenneth L. Marcus
Director, Initiative to Combat Anti-Semitism and Anti-Israelism in America's Educational Systems
May public universities tell religious student groups whom they may include as members? For example, can state universities tell Christian student groups that they must admit atheists, gays or Jews? Can public colleges require Jewish groups to admit messianic Jews and Holocaust deniers? This is the question that the Supreme Court was expected to resolve the question on Monday, when it decided the high-profile case of Christian Legal Society v. Martinez, __ U.S. __, 2010 U.S. LEXIS 5367 (Jun. 28, 2010). Instead, it resolved only a narrower issue while leaving the big question for another day. Nevertheless, the Justices’ dueling opinions in Christian Legal Society will help to frame the issue as it recurs in subsequent cases. When the Court does finally resolve the issue, its decision may well be the opposite of what many commentators now believe.
This case arose when the University of California’s Hastings College of the Law denied school-approved status – and with it the use of school funds, facilities, and communications – to the Hastings chapter of the Christian Legal Society. CLS, as it is known, controversially requires its officers and members to endorse a "Statement of Faith." That Statement provides, among other things, that people should not have sexual activity outside of marriage between a man and a woman. Under this Statement, CLS excludes from membership anyone who engages in "unrepentant homosexual conduct" or who holds religious beliefs different from those articulated in the Statement of Faith. Hastings rejected CLS 's application for Registered Student Organization status because the group’s bylaws did not comply with Hastings' equal opportunity policy. As Hastings tells the story, its student groups must accept “all comers” for membership. In CLS’s version, Hastings selectively applies its antidiscrimination policy in a way that uniquely excludes CLS because of CLS’s religious principles. .
CLS sued Hastings in federal court, arguing that the law school’s refusal recognize the group violated CLS’s First and Fourteenth Amendment rights to free speech, free exercise of religion, and expressive association. Hastings prevailed in the lower courts, which viewed the “all comers” policy as “reasonable” and “viewpoint neutral.” Writing for an ideologically divided 5-to-4 majority, Justice Ruth Bader Ginsburg affirmed the lower courts’ decisions. “Compliance with Hastings' all-comers policy,” Justice Ginsburg wrote, “is a reasonable, viewpoint-neutral condition on access to the student-organization forum.” Ginsburg reasoned that “[i]n requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition…Hastings did not transgress constitutional limitations.” Rather pointedly, she argued that CLS “seeks not parity with other organizations, but a preferential exemption from Hastings' policy.”
The swing justice in Ginsburg’s narrow majority, Anthony Kennedy, emphasized the narrowness of the Court’s opinion and declared that the outcome might have been different if the facts had different only slightly. Based upon an early stipulation of the parties, Kennedy is persuaded that the school policy was not content-based and that it was not designed to discriminate based on viewpoint. This was a critical point of contention, because CLS had argued before the Court that Hastings based its decision, not on a neutral “all comers” policy but instead on a content-laden antidiscrimination policy. Kennedy cast the deciding vote in this case because he concludes that the stipulation precluded CLS from making this argument. As Kennedy acknowledges, this point was decisive: “were it shown to be otherwise, the case likely should have a different outcome.” The importance of this statement in Kennedy’s concurrence cannot be overstated because it suggests that a five-justice majority of the Court would likely strike down a similar case in which the university had declined to recognize CLS, or any similar group, based upon an antidiscrimination policy rather than an “all comers” policy.
Justice John Paul Stevens and Samuel Alito previewed the arguments that will be made the next time such a case appears before the High Court. Justice Alito, writing for the conservative dissenters, argued that Hastings’ treatment of CLS was not viewpoint neutral, especially if one assumes that it acted upon a nondiscrimation policy rather than an “all-comers” policy. Specifically, Alito argued that “[t]he Nondiscrimination Policy proscribes discrimination on a limited number of specified grounds, while the accept-all-comers policy outlaws all selectivity.” In this sense, nondiscrimination policies are less viewpoint neutral. Alito’s point is that nondiscrimination policies do not provide open access for all student organizations, since they address only prohibited classifications such as race and nationality. This means that most organizations would be allowed to restrict their membership to students who share their basic values, while only a small number of religious groups such as CLS will be “singled out.” Justice Stevens, concurring with the majority opinion, responds that “[a]s written, the Nondiscrimination Policy is content and viewpoint neutral.” He reasons that “[i]t does not reflect a judgment by school officials about the substance of any student group's speech. Nor does it exclude any would-be groups on the basis of their convictions.”
While many commentators view Christian Legal Society as a victory for those public universities which refuse to recognize groups like CLS, the truth is more complex. Under this week’s ruling, universities will be able to achieve their goals by establishing “all-comers” policies. One should expect such policies to become more widespread as shrewd university attorneys urge their adoption. Some institutions however will prefer not to adopt such policies, particularly at the undergraduate level, since they may encourage disruptive behavior at some organizations such as political groups. To the extent that universities rely on antidiscrimination policies to restrict groups like Christian Legal Society, the end result may be the opposite of what it seems. Despite this week’s 5-to-4 majority opinion affirming Hastings’ actions, there now appears to be a different 5-to-4 majority which would strike down similar actions based on antidiscrimination policies.
For Jewish students, this development has a three-fold significance. First, Jewish student groups lose protection, if only for the time being, from intrusive administrators who might wish to tell them whom to admit or whom to choose as officers. Second, individual Jewish students gain the dubious right, if only under some policies, to join sectarian groups like the Christian Legal Society. Third, supporters of religious-freedom-in-education legislation (to protect Jewish students from campus anti-Semitism) now have somewhat more guidance as to the constitutional parameters within which such statutes must be drafted. The Ginsburg majority in Christian Legal Society is clearly not concerned that any such legislation must have a substantial carve-out for religious organizations. Justice Kennedy’s concurrence suggests, however, that under slightly different fact patterns he might join a conservative majority which would be more stringent on this issue.
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