Victory for Equality

By Erwin Chemerinsky

Few Supreme Court decisions this year produced the intense emotions generated by Christian Legal Society v. Martinez, 2010 DJDAR 9821. The issue was whether the University of California, Hastings College of Law could condition a student group's official recognition on its adhering to a non-discrimination policy.

The Hastings chapter of the Christian Legal Society wished to have only members who shared its religious views and to exclude "unrepentant homosexuals." Hastings College of Law sought to deny recognition of the group, which would include denying funding and use of school facilities, on the ground that it violated the school's non-discrimination policy by excluding individuals based on religion or sexual orientation.

The case thus presented a difficult conflict between two constitutional values: freedom of association and equality. The Christian Legal Society maintained that its freedom of association gave it the right to determine its members and to have only those who share its beliefs. Hastings College of Law contended that it has an overriding interest in ensuring equality within the school and that its students are not discriminated against based on race, gender, religion, sexual orientation, or other invidious categories.

I had more than an intellectual interest in this case. As the dean of a law school at a public university I strongly believe that all student organizations should be open to all my students. Money for student organizations at a public university comes either from the state or from funds provided by students. Such funds should not be used to support discriminatory student groups. Simply put, a student should not be required to contribute money to a group to which he or she is not allowed to join.

Certainly, students can decide to have groups, which formally or informally, exclude others. But they should not be officially recognized student groups and should not get the benefits, such as funding, made available to such organizations. They can meet off campus or unofficially on school grounds. They should fund themselves.

This was the essence of the Court's reasoning in ruling in favor of Hastings College of Law and its non-discrimination policy. The Court's decision was 5-4, with Justice Ruth Bader Ginsburg writing for the Court and joined by Justices John Paul Stevens, Anthony M. Kennedy, Stephen G. Breyer, and Sonia Sotomayor. Justice Samual A. Alito Jr. wrote a vehement dissent, which was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

The ideological split, of course, was not coincidental. Liberals tend to give more weight to equality interests than do conservatives and the conservative justices were more sympathetic to the underlying interest of the Christian Legal Society in excluding gays and lesbians. Nor was it surprising that Justice Kennedy was the swing vote as is usually the case in such 5-4 decisions defined by ideology.

Justice Ginsburg, writing for the Court, explained that the official recognition of a student group, and the funding and other benefits which accompany that, should be regarded as a "limited public forum." A limited public forum is a government created venue where the government can restrict its use to the purposes for which it was created. The government can regulate speech in a limited public forum so long as the government's actions are reasonable and viewpoint neutral.

The Court concluded that Hastings met both of these requirements. Justice Ginsburg explained that the school had a legitimate interest in making sure that all student organizations were open to all students. Moreover, the non-discrimination policy was by definition viewpoint neutral; it applied to all student organizations, whatever their ideology and beliefs. Justice Ginsburg noted that even without official recognition, the group could still use some school facilities and could communicate with its members electronically and in other ways.

Those who disagree with the Court's majority, including Justice Alito's forceful dissent, contend that this interferes with the ability of students to associate with whom they choose and to form groups of like-minded individuals. Justice Alito raised the specter of a takeover of a group by those with different views. What if students who don't want to exclude gays and lesbians takeover the Christian Legal Society? What if liberal students take over a law school's chapter of the Federalist Society or if conservative students take over a law school's chapter of the American Civil Liberties Union?

Justice Ginsburg dismissed this as hypothetical and unlikely. She is right in that many law schools, public and private, have had such non-discrimination policies without experiencing ideological transformations of student groups by takeovers. Yet, it is possible and likely will occur someplace at some time in the future. Justice Kennedy, in a concurring opinion, said that such a takeover for ideological reasons might be challenged as it arose. This, though, seems unrealistic; it is not clear who could bring such a challenge or how it could be resolved.

Ultimately, the Court's decision reflects a willingness to accept that risk to freedom of association in order to achieve greater equality for all students. Of course, no school is required to adopt a non-discrimination policy. The Court's decision was that it is constitutionally permissible for a school to do so.

The Supreme Court's decision does not end the possibility of challenges to such non-discrimination policies. A key difference between the majority and the dissent focused on whether Hastings actually administers its non-discrimination policy in an even-handed way. The Christian Legal Society, in its briefs and at oral argument, emphasized that Hastings had provided official recognition to discriminatory student groups and that no prior group had ever been denied this status.

But the Court concluded that this inquiry was precluded by a stipulation that the Christian Legal Society agreed to in the district court. The parties stipulated that: "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."

In light of this stipulation, the Court said that it was foreclosed from considering how the Hastings policy was actually administered. But the Court remanded the case to the 9th Circuit to allow the Christian Legal Society to raise its as applied challenge to the extent that it has been preserved. In light of the binding stipulation and the district court having entered summary judgment against it, there seems little chance of it prevailing with such a challenge in this case.

Certainly groups like the Christian Legal Society can and likely will bring challenges to schools non-discrimination policies in the future by claiming that they were not administered in a fair and even-handed manner. The effect of the Court's decision is to uphold the facial validity of policies like Hastings', but still to permit as applied challenges.

The hardest constitutional cases present a conflict between constitutional principles. Freedom of association and equality are both fundamental constitutional values. But based on my experience of 30 years as a law professor and now dean, the Court got it exactly right: a law school should be able to say that every student group should be open to all its students.

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