I haven't posted since the dreadful decision in the Martinez case two weeks ago, so I thought I ought to say a word or two.
On June 28, the Supreme Court issued its opinion affirming the 9th Circuit's decision that Hastings College of Law could de-recognize a CLS law student chapter because it required its members and leaders to sign a statement of faith and adhere to that statement in their conduct.
Much of the commentary has focused, of course, on CLS as a group that "bans gays," but this is of course a distortion, since no homosexual has ever been "banned" from a meeting. It is true that CLS has behavioral standards for its leaders and members, which include abstention from unrepentant extramarital sexual activity, for example, but it would be just as accurate to call CLS a group that "bans atheists." Hastings Law School kicked CLS off campus, not as a result of any action it took against individuals or groups, but because its constitution included a requirement that members sign a statement of faith and engage in conduct consistent with that statement. In short, despite media coverage to the contrary, CLS groups do not "ban gays" from attending meetings or concern themselves with "sexual orientation." The requirement of chastity outside of marriage is something that the law school seized upon as "discriminatory" even though it is a rule that CLS has applied to all, regardless of sexual orientation.
Because no other group has ever been singled out for this sort of treatment on the basis of the administration's reading a student group constitution, the Court remanded the case, giving CLS the opportunity to prove that Hastings' "unique" policy was a mere pretext, including whether the policy was applied to other groups or just CLS. Initially, the college claimed that CLS "discriminated" because of its requirements to sign a statement of faith and attempt to live by it.
The court did not reach a decision, however, regarding the school's written discrimination policy, merely that Hastings had de-recognized CLS because it did not comply with the law school's unwritten (and heretofore un-applied) "accept-all-comers" policy for student groups. The policy, according to Hastings, requires all groups to let any student join, regardless of their adherence to the group's principles. White supremacists must be permitted to join the Black Law Students Association, and Democrats must allow Republicans to join-- or lead-- their group. Because CLS is the only group in the history of the school to be de-recognized under this policy, and because it is hard to believe that any institution of higher learning would have such a policy, CLS argued that the policy was a mere pretext. Justice Ginsberg, writing for the Court, held that this issue was not fully heard in the lower court, and CLS may raise it on remand. The record seems to demonstrate that Hastings did in fact single out CLS for application of its "all comers" "policy" and that other groups had constitutions that required their members to adhere to their core beliefs, but that were nonetheless granted recognized student group status.
In addition, the holding is very narrow, and applies only to the Hastings-style "all comers" policy, which does not exist at any other public university. This means that CLS v. Walker 453 F.3d 853 (7th Cir. 2006) is still good law. Walker held that a traditional non-discrimination policy may not be applied to religious groups who require a statement of faith from members.
Justice Alito, writing in dissent for four justices, summarizes:
The Court's treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS's application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups-- groups to which, as Hastings candidly puts it, these institutions "do not wish to . . . lend their name[s]."
Free speech perspective: FIRE and Huffington Post.
The legal status of most non-discrimination policies: The Chronicle of Higher Education