Legal Commentary

Mike Dorf has an interesting post on Christian Legal Society v. Martinez, in which the Court just granted cert.  Here's one paragraph I found particularly interesting:

The Hastings opp cert relies on district court findings showing that until a few years ago, CLS had no problem with openly gay and lesbian members.  The trouble arose when the national CLS started insisting that its chapters make prospective members take a pledge that, as interpreted by the national organization, required excluding "unrepentant" sexual minorities.  In a sense, there is a battle here for the moral high ground.  The CLS imagines itself as a small band of Christians dissenting from the politically correct law school orthodoxy and being thrown to the lions for it.  Hastings envisions the CLS students themselves as pawns or dupes of a national organization that is simply itching for a fight.  Whether any of this is relevant to the legal question is unclear.

This has overtones to me of FAIR v. Rumsfeld, the so-called "Solomon Amendment" case.  There, too, FAIR described itself as a group of schools whose decision to bar on-campus access to military recruiters was essentially the result of home-grown policies, arrived at through internal discussion about what would best suit the teaching missions of the law schools involved.  Although this point was not emphasized by the government in response, there was a counterpoint involved that was similar to that raised here by Hastings: namely, that these policies were related to, and in some cases perhaps the result of, pressure imposed by a central organization -- the AALS.  

Mike says it's "unclear" whether any of this is relevant to the legal question.  I think it can be portrayed as relevant, and that some groups and commentators will end up making some form of this argument, but ultimately that it's wrong.  The argument will go something like this: The Hastings CLS argues that it needs to discriminate in its membership because this discrimination is essential to its nature and purpose, and this conclusion is the result of genuine thought on the part of the CLS chapter about what it wants and needs as an expressive association.  But if it is just the tool of a larger group, or changed its policies only to receive funding and other goods from the national CLS, then the Court hardly need defer, Dale-style, to its own statement about its expressive purposes.

Two things need to be said about this.  First, note the parallels to FAIR.  FAIR and its member schools argued strongly on the basis that they were making considered academic judgments about what their policies required with respect to on-campus recruiters, and that this judgment deserved deference, whether under Dale or under the Court's academic freedom jurisprudence.  But if they were in fact acting out of pressure from some association, like the AALS, that is composed of law schools but is not itself a law school, if their decisions were the result of external pressures rather than internal deliberation, then why defer?  I suspect that some commentators who try to make this point about CLS were less willing to see the same point in the FAIR case, although that is speculation on my part.

Second, I think the point is wrong.  However much they may have welcomed the money and the association with the national CLS, the Hastings chapter still made its own judgment that doing so, and changing its admissions policies in accordance with the national body's requirements, was an important thing to do.  The same thing can be said about the AALS in the FAIR case, although I think we should be more willing to expect independence of mind from law schools than from student clubs, and FAIR raised largely unacknowledged questions about whether, if universities or law schools are going to make arguments based on academic freedom, they are obliged to make genuinely independent decisions about what academic freedom requires rather than letting those decisions be made elsewhere.  My final view is that the issues Mike raises should not be legally relevant, even if the case is decided on the basis of associational freedom rather than (as I think more likely) public forum and government speech doctrine, but that they are important for considering the nature of freedom of association as a broader matter.