Law school group must accept all

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Public law schools can compel registered student organizations (RSOs) to admit as members and leaders all students who wish to participate.

Because of a procedural twist, however, the impact may be limited, inasmuch as the respondent, Hastings College of the Law, is the only public law school with such a policy.

Due to a stipulation that the petitioner, the Christian Legal Society (CLS), entered, the court concluded that it could not challenge the law school’s written nondiscrimination policy, which most law schools do have in one form or another.

Instead, the court only considered the school’s unwritten policy that all groups must accept all students who wish to join.

When the suit was brought in 2004, Hastings had a written nondiscrimination policy that prohibited RSOs from discriminating “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”

CLS was denied RSO status because its bylaws require members and officers to sign a statement of faith including the tenet that sexual activity should not occur outside of marriage between a man and a woman.

CLS alleged that the refusal to grant it RSO status violated its rights to free speech, expressive association and free exercise of religion.

In a June 28 opinion by Justice Ruth Bader Ginsburg, the U.S. Supreme Court sided with Hastings.

The court emphasized that it was not ruling on the merits of the written policy, but on Hastings’ unwritten interpretation of it to mean that all RSOs must accept as members all who wish to join.

At the summary judgment stage in the district court, the parties entered a joint stipulation, stating, “Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.”

By entering this stipulation, the majority concluded that the written policy was not at issue, but only the unwritten “all-comers requirement.”

Turning to the merits, the court gave four reasons for holding the policy constitutional.

First, the court found that the policy reasonably ensures that no student is forced to fund a group that would reject him as a member.

Second, the court found that it would be unduly burdensome on the law school to police whether an RSO excludes members because status or belief.

Third, the court found the policy “encourages tolerance, cooperation, and learning among students.”

And finally, the court found that the policy merely incorporates state law bans on discrimination.

The court then found that CLS’s objections were insufficient to outweigh these four legitimate purposes.

CLS argued that the all-comers policy would permit saboteurs to infiltrate groups to subvert their mission and message, but the court found this supposition “more hypothetical than real.”

The court further noted that groups may condition membership and leadership on neutral requirements, such as attendance or the payment of dues.

The court added, “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.”

Instead of affirming the Ninth Circuit outright, however, the court affirmed and remanded the case to the Ninth Circuit to consider whether, in fact, Hastings’ enforcement of the policy is selective, rather than neutral.

Justice Samuel Alito dissented, in an opinion joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

Alito began, “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

The dissent took issue with the majority’s characterization of what was at issue. The dissent found that CLS was denied RSO status pursuant to the written nondiscrimination policy, and the all-comers policy was only adopted after litigation began, during the deposition of the school’s dean.

The dissenters also noted that the law school routinely registered groups with bylaws limiting membership to those who agreed with the groups’ viewpoints.

Turning to the merits of the unwritten all-comers policy, nonetheless, the dissenters concluded it was unconstitutional.

Alito wrote, “While there can be no question that the State of California could not impose such restrictions on all religious groups in the State, the Court now holds that Hastings, a state institution, may impose these very same requirements on students who wish to participate in a forum that is designed to foster the expression of diverse viewpoints.”

Alito added, “Hastings’ accept-all-comers policy is not reasonable in light of the stipulated purpose of the RSO forum: to promote a diversity of viewpoints ‘among’ — not within — ‘registered student organizations.’ (emphasis added by court).”

Kim Colby, senior counsel for CLS, and co-counsel on the case, said that she expects to prevail on remand by proving that the all-comers policy is pretextual.

“We started out litigating the written policy, and as the litigation went on, Hastings’ policy morphed to the all-comers policy,” Colby said.

Case analysis

The University of Wisconsin Law School’s policy on recognition of student organizations could be changed as a result of the opinion.

According to Nancy Lynch, an attorney for the University of Wisconsin, the university at one time had a policy similar to Hastings’ written policy.

It was changed in 2006, however, in response to a Seventh Circuit opinion involving the CLS and the Southern Illinois University School of Law, Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).

CLS brought suit after its student registration was revoked because it required members and officers to adhere to its statement of faith.

The Seventh Circuit enjoined enforcement of SIU’s policy, concluding that CLS was likely to succeed on the merits — that the university’s policy violated its rights to expressive association and free speech.

After Walker was decided, Lynch said that UW clarified its policy to forbid discrimination based on status, but to permit organizations to limit membership and participation to those who share the organization’s objectives.

The current rule, Section 30-6, provides, “Student organizations that select their members or officers on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership, officer positions, or participation in the organization to students who affirm that they support the organization’s goals and agree with its beliefs, so long as no student is excluded from membership, officer positions, or participation on the basis of his or her race, color, creed other than commitment to the beliefs of the organization, religion, national origin, disability, ancestry, age, sexual orientation, pregnancy, marital status or parental status, or, unless exempt under Title IX, sex.”