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Supreme Court Upholds Hastings Law School's All-Comers Policy for Registered Student Organizations

By Howard M. Friedman

The U.S. Supreme Court today in a 5-4 decision upheld the non-discrimination policy of Hastings College of Law that requires registered student organizations to allow any student to participate. The policy was challenged by the Christian Legal Society which requires members to sign a Statement of Faith and abide by it, so that non-Christians and those who engage in "unrepentant homosexual conduct" are excluded. Registered student organizations get the advantage of being able to meet on school premises, and of communicating with its member through sending e-mails to the student body and through other official forums.

In Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez, (Sup. Ct., June 28, 2010), CLS argued that all-comers rule violates its rights to free speech, expressive association and free exercise of religion. The majority ruled only on the "all comers" rule that the parties specified applied in their stipulation of facts. It refused to pass on the question of whether the narrower non-discrimination policy as written that prohibits discrimination only on specified bases, including religion and sexual orientation, is unconstitutional because it targets beliefs based on religion or having to do with particular kinds of sexual behavior.

The majority in an opinion written by Justice Ginsburg, held that Hastings' policy is a reasonable, viewpoint-neutral condition on access to a limited public forum for registered student organizations. She summarized:

The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

Responding to concerns about a takeover of a group by opponents who wish to sabotage it, Justice Ginsburg wrote that membership or leadership positions can be conditioned on "requirements designed to ensure that students join because of their commitment to a group?s vitality, not its demise."

Justices Stevens and Kennedy filed separate concurring opinions. Justice Stevens argued that even as written, the non-discrimination policy is constitutional. Justice Kennedy emphasized the informal learning that is furthered through student interaction by the all-comers policy.

Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas. The dissent argued that the Court should focus on the non-discrimination policy as written, since that was the policy originally invoked to deny CLS registration. That policy, the dissent argues, amounts to viewpoint discrimination since only religious groups are required to admit students who do not share their views. Political groups or groups formed around other causes can limit membership. The dissent goes on to argue that even limiting the analysis to the broader all-comers rule, the policy is unconstitutional. It was adopted as a pretext to suppress a particular viewpoint and it is not reasonable in light of the purposes of the student organization policy which is promoting diversity among student organizations.

Full post as published by Religion Clause on June 28, 2010 (boomark / email).