Charlotte Allen has posted a thoughtful essay about the aftermath of the Supreme Court’s unfortunate June decision in Christian Legal  Society v. Martinez (“More Wreckage from Ginsburg’s ‘Neutral’ Ruling,” September 7, 2010).  Very much worth a read.

Last week, the Supreme Court issued a disturbing opinion that will directly impact students’ constitutional rights on public university campuses throughout the nation.  In CLS v. Martinez, the Court affirmed the facial constitutionality of a University of California-Hastings policy that forces student clubs to allow all Hastings students to become club members and leaders—even students hostile to the clubs’ purpose and core beliefs.  My colleagues have written several posts which provide in-depth analysis of the meaning and likely impact of this case.

In particular, David French aptly explains that the decision is both narrow and troubling.  Narrow, because Hastings’ “all comers” policy is virtually the only one in existence at a public university.  Troubling, because the decision’s sweeping language appears to significantly weaken the freedoms of speech and association.  But the actual impact of the decision still remains to be seen.  One of the primary concerns is that the decision will create a knee-jerk reaction in the courts to uphold standard nondiscrimination policies that were not at issue in Martinez. 

A similar trend began to emerge in the wake of Wallace v. Jaffree, a case where the Supreme Court reviewed an Alabama statute that authorized a daily moment of silence in the public schools.  The facts at issue demonstrated that this was indeed an extreme case.  Both the senate sponsor of the law and the Governor admitted that the statute’s sole purpose was to return prayer to the public schools.  Additionally, certain teachers at the plaintiff’s school had been using the period of silence to lead their classes in group prayers on a daily basis.  And the State of Alabama had previously tried multiple times to inject prayer into its public school system by passing school prayer laws, but each effort was rebuked by a federal court.  The Court explained that these factors showed that Alabama was not neutral towards religion as required by the Constitution, but was instead forcing prayer on its students.  The Court indeed made clear that under other circumstances, the protection of voluntary student prayer during moments of silence was a constitutionally permissible goal:

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every students’ right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.

Despite this clarification, because the case was the only word from the Supreme Court on moments of silence, courts immediately began to strike them down.  The same year Wallace was decided, a federal appellate court struck down a moment of silence law even though it had none of the egregious circumstances present in Wallace.  For twelve years, the legal landscape looked ominous for the moment of silence.  But finally, in 1997, the U.S. Court of Appeals for the Eleventh Circuit upheld Georgia’s moment of silence statute.  And soon after this decision, three other federal courts of appeal upheld similar statutes.

But to this day, Wallace continues to cast a shadow over federal courts and legislative bodies. Indeed, a federal district court in 2009 invalidated Illinois’ moment of silence law based on Wallace.  This decision has been appealed and the ADF Center for Academic Freedom is urging the U.S. Court of Appeals for the Seventh Circuit to reverse.  The court’s decision will go far in determining the breadth of Wallace’s impact.  Notwithstanding, opponents of religious liberty will continue to raise Wallace in court and in legislative bodies to defeat moments of silence wherever they are implemented or even considered.  

We are quite sure that university officials will invoke Martinez for as long as they can in order to push religious student groups to the fringe of the college campus.  But they should be aware, that Martinez is an extremely narrow decision that provides little refuge for the vast majority of nondiscrimination policies at American universities.  The ADF Center for Academic Freedom maintains that such policies, when used to compel belief-based groups to accept non-adherents, are unconstitutional.  We will continue to defend the constitutional rights of student groups burdened by such policies, and will insist that the courts strictly hold Martinez to its narrow terms.

Academia waits on the Supreme Court to decide CLS v Martinez, with many universities perhaps hoping that the Court will authorize a new means of excluding religious student groups from their campus.  As I’ve noted in a previous post, universities have a long history of wanting to eliminate religious student organizations and many can be expected to take any new opportunity the Supreme Court gives them. But it is worth noting that there are also a number of schools for which CLS v Martinez should change nothing.

Over on the CLS website, a post notes the long history of Universities discriminating against CLS and other religious student organizations by seeking to use nondiscrimination rules to exclude them. The litigation in CLS v. Walker, for example, terminated with a settlement agreement whereby Southern Illinois University agreed to exempt religious organizations from its religion nondiscrimination requirement and agreed that CLS’s nonmarital sexual conduct policies are not “sexual orientation” discrimination. Ohio State University, Arizona State University, Boise State University, the University of Minnesota, Penn State, Rutgers, Washburn University School of Law, and many other universities have similarly entered into binding settlement agreements that would prevent them from applying nondiscrimination rules to prohibit religious student groups from limiting leadership and voting membership to persons who share their religious beliefs. Having contracted to protect these rights, these universities would remain bound by those contracts no matter the outcome of CLS v Martinez.

Additionally, the University of Florida amended its policies to exempt religious groups after oral argument in the Eleventh Circuit in BYX v. Machen. They have subsequently and repeatedly argued to the Court that they will not go back to their former discriminatory policy – an argument the Court accepted as true in dismissing the case as moot. In light of this, one must assume that UF would not again change their policy even if the Supreme Court issued a decision in favor of UC Hastings. The University of Iowa’s General Counsel has stated that to enforce a religion nondiscrimination rule to derecognize CLS would not only violate its First Amendment rights, but also CLS’s rights under the University’s own Human Rights Policy. And the University of Idaho’s SBA Judiciary has determined that CLS’s faith requirements for voting membership and officer positions does not constitute “discrimination” at all within the meaning of the school’s policies. In each of these cases, a victory for Hastings should not authorize the universities to reverse course and discriminate against religious student groups.

Finally, there are a myriad of universities across the country that have more quietly informed religious student groups over the years that they will not apply their nondiscrimination rules to deny recognition to religious student groups. The American Association of University Professors has after all, since 1967, recommended exempting religious organizations’ faith requirements from religion nondiscrimination rules [Student Affairs 1(e)] and many universities have followed AAUP’s advice.

If Hastings’ claims were true we should expect that each of these universities must suffer from a lack of intellectual diversity. Clearly, they must struggle to enforce their nondiscrimination rules to prohibit truly invidious discrimination since they make exceptions for faith requirements for religious groups. They must be inundated with calls from confused members of the community who believe that student groups speak for (and hence “discriminate” for) the universities themselves. Undoubtedly, each of these schools must have encountered KKK and other racist student groups seeking to piggyback on their exemptions for religious groups.

Of course, there is exactly no evidence of any of this at any of these universities. Their recognition of CLS and other religious student organizations – even while permitting these organizations to limit officers and voting members to those who share CLS’s religious views has apparently not harmed these universities’ educational missions in any way. Not one of these universities provided evidence in any amicus brief that their inability to enforce their nondiscrimination rules to deny recognition to religious student groups had harmed the schools in any way. Their silence speaks volumes about the reality of Hastings’ arguments.

The point here is that despite the rhetoric of Hastings and its ideological allies, CLS is not seeking to exercise any new and untested right.  As the experience of the dozens of major universities and law schools across the country that have already made the decision to respect associational freedom attests, Hastings and other universities simply have no legitimate basis for preventing religious student groups from associating around shared beliefs. Given the Supreme Court’s previous decisions protecting First Amendment rights on campus, I look forward to a decisive victory in CLS v Martinez. But even if the Supreme Court somehow sided with Hastings, students at these universities would remain protected in the exercise of their fundamental right of association.

Back in the early 1990s, Canon launched an ad campaign for its “Rebel” line of cameras featuring tennis star Andre Agassi.  In the ads, he executes a series of “rebellious” moves:  tousling that crazy mullet he had back then, driving a jeep with no doors, throwing his shirt into the crowd, braving the streets of Las Vegas, etc.  (No, they don’ t show him on a date with Barbra Streisand.  Thankfully.)  The tag line uttered by Agassi while adjusting his oh-so-cool black shades was, “Image is Everything.”

Apparently, Martha Minow and Leo Martinez, deans of Harvard and Hastings law schools, respectively, have drunk deeply at the Agassian fount of wisdom.

In a Weekly Standard, Peter Berkowitz opens his essay entitled “Harvard Law vs. Free Inquiry” as follows:

Late last month, controversy erupted at Harvard Law School after a private email written in November was leaked to the law school community. In it, a third year student, clarifying her views after a dinner conversation with two close friends, explained to them that she wanted to understand the science and research on whether intelligence may have a genetic component and whether African Americans may be “less intelligent on a genetic level.”

The private email was leaked, and it became a subject of discussion among Harvard’s students.  Dean Minow felt compelled to issue a statement condemning the email.  Berkowitz’s piece powerfully argues that Minow’s move was inappropriate, as have numerous others.

Berkowitz’s story quotes Dean Minow’s statement:  “one student’s comment does not reflect the views of the school or the overwhelming majority of the members of this community.”  Well, of course not.  Is there any serious risk that the world would somehow attribute the ”views” of the student (who, by the way, was simply asking a question, albeit a provocative and sensitive one) to Harvard Law School itself or to the majority of its students?

My hypothesis is that Dean Minow was really saying, “this isn’t Harvard.  We’re not like this student.  We disagree with her so strongly that we must condemn her.  We probably blew it when we admitted her.  We’re sorry we failed to teach her not to ask such questions.  We won’t let it happen again. You can hate her, but please, pretty please, don’t hate Harvard, ok?”  Harvard felt that the email reflected poorly on Harvard, and Harvard needed to take decisive action to restore Harvard’s reputation.  Image is everything.

I’ve always thought something similar was at work at Hastings in its dispute with Christian Legal Society over CLS’s statement of faith requirement, which Hastings labeled “discrimination.”  In its Supreme Court brief, Hastings remarkably argued that it needed to punish CLS in order to protect its own reputation.  It was intolerable to Hastings for others to think that it tolerated the allegedly intolerant.  It is reasonable to infer that Hastings was simply embarrassed that its student body included those who held religious and moral beliefs it deemed retrograde.  Hastings was unmoved by the fact that so many other public universities had accommodated the associational freedom of their religious student groups.  Indeed, there was sometimes a whiff of ”we’re going to be the ones who won’t back down to the evil Religious Right.”  In short, image was everything.

At schools like Hastings, if “image” gets in a fight with the Constitution, the Constitution sadly loses.

In a house editorial, the New York Times urged the U.S. Supreme Court to rule against Christian Legal Society and for Hastings College of the Law in CLS v. Martinez.   What follows is a response, submitted to but not published by The Times.

In the case just argued before the U.S. Supreme Court, Christian Legal Society v. Martinez, the public should be wary of any superficial analysis that the case is all about “discrimination” by a Christian student club and a law school that wants to stop it.  While it’s true that Hastings College of the Law in California prohibits “discrimination,” this assertion of what Hastings does is terribly misleading.

Hastings doesn’t just prohibit discrimination on the basis of the nine protected characteristics listed in its written Policy on Nondiscrimination; it also requires registered student organizations to confer voting membership and leadership upon everyone—even people who reject an organization’s core beliefs.  As the Hastings dean stated in a PBS interview, this means that a black student organization would be required to allow adherents of the Ku Klux Klan to become voting members.  Such a nonsensical policy goes far beyond preventing the sort of invidious reliance upon irrelevant characteristics that non-discrimination policies are designed to prevent.

A recent New York Times editorial referred to CLS as a “Christian group that bars non-Christian and gay students.”  While CLS limits leadership and voting membership to those that share its values as many student clubs do, it allows everyone to attend its meetings and participate in its events.  Moreover, CLS’s sexual conduct rule for officers and voting members does not target “gay students.”  Tiger Woods and Mark Sanford, for example, aren’t “gay,” but if they were students, they would have trouble becoming CLS officers.

The Times editorial also stated, “For years, the Christian Legal Society chapter at Hastings adhered to this [non-discrimination] policy.”  In reality, the two groups calling themselves “Christian Legal Society” at Hastings prior to the onset of the current dispute were not affiliated with the national CLS organization and are not the same as the one involved in the current lawsuit.  Furthermore, the first one required its officers and voting members to sign its statement of faith, too—the very same one that the current CLS chapter uses.

So, is this case really just all about funding?  No.  The CLS chapter didn’t even intend to seek funding until the Hastings director of student services, after learning that two chapter leaders were going to the annual CLS conference, offered them travel funds—a $250 grant that was later revoked.  The chapter is far more interested in access to meeting space and communications mechanisms—access that the Supreme Court has already ruled in Healy v. James cannot be denied to clubs like CLS.

And when money is involved, it is not used to pay “for discrimination.”  Money used to pay for pizza at an event open to the public, for example, doesn’t become money for “discrimination” just because the event is sponsored by a group that wants leaders who share its views just like other clubs do.

It’s also not true that Hastings determined in 2004 that state law requires it to ensure that its student organizations do not permit discrimination.  In fact, until this case reached the Supreme Court, Hastings never argued that the law required it to exclude CLS.  And even if a state law did require Hastings to punish CLS, a state statute decidedly does not trump the obligations imposed upon Hastings by the U.S. Constitution.

In the end, the idea that Hastings has a valid interest in protecting its own reputation by distancing itself from groups that depart from its own views is, to put it mildly, disconcerting.  At the heart of the Free Speech Clause of the First Amendment is a recognition that the government cannot use its considerable power to disfavor messages with which it disagrees, simply because it disagrees with them.  While it is true that a government school can pursue a policy of “promoting diversity” and “opposing discrimination,” it is not free to use whatever means it chooses to pursue those objectives.

Because Hastings could not identify anyone who wanted to serve as a leader or voting member of CLS while rejecting its religious commitments, the school found it necessary to trot out its own “reputational interest” to justify its treatment of CLS.  But if the First Amendment permits the government to punish a group so that the government can “make a statement” about its disapproval of the group’s speech, may God help us all.  Any government punishment of dissenting speech becomes self-justifying.

Hastings wants to argue that it isn’t so terrible for a group not to be recognized.  But would it accept that argument if, say, a university in the deep South in 1975 refused to recognize a student group formed for people involved in homosexual behavior?  The fact of the matter is that CLS members pay student activities fees like all other students do.  Access to meeting space and the use of communications mechanisms are vitally important.  If they aren’t, why does Hastings (and virtually every other university and college in the country) confer such benefits upon student groups?

For these reasons, it’s logical for people of all beliefs to support a Supreme Court ruling in CLS’s favor.  And that’s precisely why 14 state attorneys general and nearly 100 diverse groups representing a wide variety of beliefs and practices filed briefs in support of CLS in this case.

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