High court questions scope of campus policy on student clubs

Tuesday, April 20, 2010

WASHINGTON — A difficult contest between freedom of association and a state university’s effort to discourage discrimination was laid before the Supreme Court yesterday. By the end of the hourlong argument in the case of Christian Legal Society v. Martinez, it was unclear which side would prevail.

The case, which drew more than 30 friend-of-the-court briefs, began when the University of California Hastings College of the Law in San Francisco denied official recognition and benefits to the Christian Legal Society because the group’s bylaws did not conform to the school’s nondiscrimination policy.

The club denies membership to non-Christians and to those who advocate or participate in sexual activity outside marriage between a man and a woman. The university policy was upheld by the 9th U.S. Circuit Court of Appeals.

Representing the Christian group, Stanford Law School professor Michael McConnell said the university’s policy and its action amounted to a “frontal assault on the freedom of association. Freedom of association is the right to form around shared beliefs.”

But the argument bogged down over how broadly the university policy sweeps. Early in the litigation, the parties had agreed the policy requires recognized student groups to allow “all comers” to join and even lead their organizations — including allowing Republicans to lead a Democratic club.

McConnell said that as applied, however, the policy had singled out religious groups as the only ones that were barred from excluding non-adherents. Though he said both versions of the policy were unconstitutional, he stressed the policy’s disparate impact on religious clubs.

It’s an important point, because an all-comers policy might have a better chance of being upheld as a viewpoint-neutral rule that is evenly enforced on all groups, not just religious ones.

Gregory Garre, who was representing the university, said at one point that “all parties agree that the current policy is the all-comers policy,” provoking an angry response from Chief Justice John Roberts. “No, I’m sorry. All parties do not agree that the policy is the all-comers policy.”

The issue seemingly went unresolved, with justices getting frustrated about the confusion. “What is the case that we have here?” Justice Anthony Kennedy asked early in the argument. His is a crucial and unpredictable vote in the case.

Justice Stephen Breyer also complained about the “great unclarity” of the facts, suggesting that he might urge that the case be sent back to the lower courts to determine the exact nature of the policy.

Garre said the university’s nondiscrimination policy was “not uncommon and a reasonable policy,” which is replicated at private institutions such as Georgetown University Law Center and Columbia Law School.

But justices on the conservative wing of the Court criticized it severely.

“It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership; to require this Christian society to allow atheists not just to join, but to conduct Bible classes, right?” Justice Antonin Scalia told Garre. “That’s crazy.”

Justice Samuel Alito also posited the situation of a small Muslim student group on campus, with 10 members. Under the university’s policy, he said, “50 students who hate Muslims and show up and they want to take over that group, you say the First Amendment allows that?”

Garre said that kind of “takeover hypothetical” has never happened in the 20-year history of the university’s policy.

But that response did not sit well with Roberts, who wondered aloud whether, in other contexts, the unlikelihood of a bad scenario happening would matter.

“So if you have a law that says every newspaper that is published in the United States must be reviewed by the government’s censor board, and the fact that the … board decides not to do it, then that law is OK?” asked Roberts.

For their part, the more liberal justices were also skeptical of the implications of McConnell’s opposition to the nondiscrimination policy on behalf of the Christian club.

“Are you suggesting,” said Justice Sonia Sotomayor, “that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other forms of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?”

McConnell replied that Hastings was “able to enforce” its rules barring discrimination on the basis of status, such as race. He added that he was only challenging the rule barring discrimination on the basis of beliefs.

“What if the belief is that African-Americans are inferior?” asked Justice John Paul Stevens. McConnell indicated that would be a status bias that could be barred, but some justices appeared unconvinced.