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The Christian Legal Society loses its 1st Amendment challenge to the accept-all-comers policy required by Hastings Law School.

Justice Ginsburg writes for the majority in Christian Legal Society v. Hastings College of the Law, answering yes to the question: "May a public law school condition its official recognition of a student group ? and the attendant use of school funds and facilities ? on the organization?s agree­ment to open eligibility for membership and leadership to all students?" The CLS wanted to restrict membership to those who would sign a "statement of faith" and to exclude those who engage in "unrepentant homosexual conduct."

Justice Ginsburg expresses deference to the law school's reasonable and "viewpoint-neutral" policymaking:

Hastings... could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes?and to build this expectation into its educa­tional approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.

That final "if" is important, and it takes a lot of the wind out of the sails of the dissenting opinion written by Justice Alito. From the dissent:

In response to the argument that the accept-all-comers-policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements ?designed to ensure that students join because of their commitment to a group?s vitality, not its demise.? With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy?it has an accept-some-dissident-comers policy?and the line between members who merely seek to change a group?s message (who apparently must be admitted) and those who seek a group?s ?demise? (who may be kept out) is hopelessly vague.

The majority is deferring to the law school, and not preemptively dealing with this other situation which hasn't happened and which it would prefer to trust the law school to deal with if in fact it ever does happen.


Note: Justice Ginsburg was present in Court for the announcement of today's opinions, even though her husband died yesterday.

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