Academic

Ninth Circuit Oral Argument in CLS v. Kane

By Calvin Massey

     I attended the oral argument this morning in Christian Legal Society v. Kane (06-15956), an appeal from a summary judgment in favor of the University of California, Hastings.  As is true of many universities and law schools, Hastings subsidizes officially recognized student groups by providing access to school faclities, e-mail lists, mail folders, and money.  To obtain official recognition and receipt of those subsidies a student group must be open to all Hastings students, regardless of (among other things) their religion or sexual orientation.  The Hastings chapter of CLS allows any Hastings student to attend meetings but limits voting rights and leadership roles to students who profess their belief in Jesus Christ as savior and who affirm that they are not practicing homosexuals.  (CLS believes that homosexual conduct is incompatible with their conception of Christianity, a belief that is not held by many Christian denominations, but which is generally held by fundamentalist Christian sects.)  Accordingly, CLS was denied official recognition.  A federal district court granted summary judgment to Hastings (the Lexis report of the opinion is here).  While the CLS appeal was pending a Ninth Circuit panel decided Truth v. Kent School District, 542 F. 3d 634 (2008) (opinion here), in which a public high school denied recognition and funding to a Christian religious group called Truth.  The court said that the school had created a limited public forum but concluded that application of a state non-discrimination policy constituted a viewpoint-neutral restriction of the forum that was reasonable in light of the forum's purposes. 

      Today's argument was before a panel of Judges Hug, Kozinski, and Bea.  Kozinski wanted to know why the CLS case was different from Truth. Timothy Tracey, arguing for CLS, stressed that the Hastings rule was a substantially greater interference with CLS's right of expressive association than the denial of recognition to Truth.  Kozinski observed that CLS could freely exercise its speech and associational rights; it just wasn't getting a subsidy.  Ethan Schulman, arguing for Hastings, stressed that the non-discrimination policy was even-handed -- it applied to all student groups -- and was thus viewpoint-neutral.  Judge Bea agreed that this was so, and expressed some skepticism about the wisdom of a policy that required student Democrats to accept Republican members, and vice versa.   Judge Kozinski observed that while the impact of the Hastings rule had no impact on the expressive association of, say, the Chess Club, it bites deeply into the expressive association of religious groups.  Kozinski inquired of counsel whether it might be prudent of the panel to delay submission of the cause until the Supreme Court disposes of a pending cert. petition in Truth.  Tracey thought this might be wise; Schulman objected. 

      The problem with such cases is that they are a unique type of disparate impact case.  As with race-neutral classifications that have a disparate racial impact, facially viewpoint-neutral rules governing access to a limited public forum impose a sharply disparate impact on some groups otherwise eligible for forum access.  Yet, rarely will it be the case that those rules are adopted for the deliberate purpose of squelching some group's expressive association.  The facts of Truth suggest that the denial of recognition in that case might actually have been out of animosity toward the group's viewpoint, but the more usual situation will be an even-handed non-discrimination policy that is adopted without any specific animosity toward any particular group, but which is known beforehand that its result will be to hamstring the expressive association of certain groups more than others.  Under those conditions, it is not quite correct to call such regulations "neutral."  Indeed, the motivation of non-discrimination policies as filters of access to a limited public forum is to ensure inclusiveness of student groups, and it is precisely that desire that pinches student groups whose message depends on shared beliefs that are not universal.  

Full post as published by The Faculty Lounge on March 10, 2009 (boomark / email).