As we detailed last month, the Supreme Court issued a disappointing but narrow ruling in Christian Legal Society v. Martinez. The Court held that public universities may require student organizations to accept all students as voting members and allow all members to run for leadership positions, regardless of whether these students share the group’s core beliefs. The majority opinion’s reasoning hinged on the fact that the so-called "all-comers" policy was viewpoint neutral-in other words, that it applied to all student organizations regardless of their views. This principle of viewpoint neutrality was crucial to the Court’s determination that the all-comers policy implemented by the University of California Hastings College of the Law (Hastings) did not violate the Christian Legal Society’s freedom of expressive association.
In the lower courts and before the Supreme Court, however, the Christian Legal Society (CLS) argued that Hastings was enforcing this policy selectively to interfere with CLS’ ability to express its viewpoint. CLS believed that the all-comers policy was a mere pretext for forcing it to accept those who did not adhere to its views on Christianity and sexual relations, and argued that other student groups, such as the Hastings Democratic Caucus, continued to exclude students who did not support the particular group’s mission. The Supreme Court did not consider these arguments, but instead stated:
In its reply brief, CLS contends that "[t]he peculiarity, incoherence, and suspect history of the all-comers policy all point to pretext." Reply Brief 23. Neither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved.
Over the past few weeks, CLS, Hastings, and the Hastings student group Outlaw have filed motions before the Ninth Circuit on the issue of whether CLS’ argument that Hastings selectively enforced its all-comers policy to discriminate against certain viewpoints is properly preserved for consideration by the lower courts.
CLS’ motion and reply motion cite Justice Alito’s dissent in Martinez, which noted that CLS made a strong showing that "Hastings’ sudden adoption and selective application of its accept-all-comers policy was a pretext for the law school’s unlawful denial of CLS’s registration application . . . ." Further, CLS’ motions contend that it has consistently raised this issue before the trial court, the Ninth Circuit, and the Supreme Court.
In response, Hastings and Outlaw argue that the trial court’s and Ninth Circuit’s prior rulings and findings of fact should not be disturbed and that CLS did not take the necessary steps to preserve this issue.
The Ninth Circuit must now decide whether it should address this factual dispute over whether Hastings selectively enforced its all-comers policy against CLS. However, even if the Ninth Circuit refuses to consider this issue, CLS can always bring a new case if, in the future, Hastings selectively enforces-or fails to enforce-its all-comers policy against any student group. All-comers policies are constitutional under Martinez only if they are enforced in a viewpoint-neutral way, and student groups should remain alert to safeguard their rights against selective enforcement.
Stay tuned for more coverage on developments in Martinez as they arise.