New Venue for Anti-Bias Debate

June 29, 2010

The U.S. Supreme Court’s decision Monday settled a key question about the anti-bias rules of public colleges and universities. Under the ruling, public colleges and universities may limit recognition to student groups that abide by anti-bias rules — even when the groups are religious and they object on religious grounds to some of the rules.

The ruling rejected an appeal by the Christian Legal Society, which has sought at many public campuses to be recognized as a student group even though — in violation of many colleges’ anti-bias policies — it bars as members gay people and those who do not meet a variety of requirements related to their religious beliefs.

That finding represented a huge victory for the Hastings College of Law of the University of California, whose anti-bias rules were at issue, and for civil rights and education groups that backed the law school. Hastings fought for the principle at a time when many other law schools and public universities — facing threatened lawsuits or losing court decisions — backed down, effectively agreeing to exempt religious groups from some aspects of anti-bias rules.

Still, the issue before the Supreme Court was the permissibility of public colleges’ enforcing their anti-bias codes when they interfere with the beliefs of religious groups — not a requirement that they do so. And no legal experts appear to be reading Monday’s decision as requiring public colleges to enforce their anti-bias policies in that way.

So the debate over these policies — far from being settled — actually shifted Monday, from courts to campuses. Several colleges indicated toInside Higher Ed after the decision came down that, while they are reviewing the ruling, they didn’t expect to change their policies, and they plan to continue to exempt religious groups from some anti-bias rules. Officials at other colleges declined to comment, or simply said that they were studying the issue. And advocates for gay students and other minority groups called on public colleges that have backed down in the past to once again enforce their policies.

What the Ruling Said

The 5-to-4 ruling, with the lead opinion by Justice Ruth Bader Ginsburg, solidly backed most of the arguments put forth by Hastings and many higher education groups, and rejected the arguments offered by the Christian Legal Society and many of its religious allies.

Justice Ginsburg focused on Hastings’ “all comers” approach to student activities, in which it requires all organizations seeking recognition as an official student group to be open to anyone who wants to participate. While the Christian Legal Society argued that this policy denied it the freedom of religion and association rights it should be provided under the First Amendment, Justice Ginsburg said that as long as the policy is enforced consistently, it is valid for a public college or university.

The decision rejected the idea that the Christian Legal Society (referred to by its acronym CLS) is being forced to do anything. “CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition,” Justice Ginsburg wrote. “The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out.”

Justice Ginsburg also wrote that it would be impossible for a public college or university to do as the CLS requested, and permit organizations to deny membership or leadership to various people based on belief. This was a key part of the CLS argument, as the society said repeatedly that it was not rejecting anyone on the basis of their status.

“How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?” she asked. Further, Ginsburg rejected the CLS argument that it doesn’t discriminate against gay people, but only against those who have gay sex. She quoted the Supreme Court decision barring the criminalization of gay sexual acts: “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”

As to the argument that the Hastings rules would make it impossible for CLS to function as a student organization, Ginsburg noted that many student groups function for years without official recognition and that in the era of e-mail and Web pages, the CLS would have no problem promoting its views and communicating with members.

Finally, Ginsburg wrote that it was entirely legitimate for Hastings to have as a requirement that all organizations be open to all. She said CLS was effectively trying to have its own set of rules, and that a public college or university may insist that everyone follow the same regulations.
“CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides. Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership,” she wrote. (On one issue — whether Hastings applies its rules consistently, the decision ordered additional court hearings, but Hastings officials expressed confidence that they would prevail, especially since the courts that will consider the issue have already upheld the law school’s policies.)

Justice Ginsburg was joined in the decision by the other three justices generally viewed as the liberal wing of the court, and by Justice Anthony Kennedy, the swing vote. The four traditionally conservative justices joined a dissent by Justice Samuel Alito that blasted the majority opinion, saying that it would set a standard of “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

Where Colleges Go From Here

Michael W. McConnell, lead counsel for the Alliance Defense Fund, which led the legal defense for the CLS, said that he was “very disappointed” by the Supreme Court’s decision and predicted that it would cause great harm to Christian student groups. He said that the justices in the majority were “naïve about how students behave” when they said they didn’t see a key problem with an “all comers” policy that he did: that students who disagree with a group could just take it over. And McConnell said it was unreasonable to expect student groups to function without official recognition.

“It’s almost impossible to function without recognition,” he said. Whatever Justice Ginsburg said about the Internet, McConnell said that campus presence in every possible way is what matters to promote student groups.

Ethan Schulman, a lawyer who has represented Hastings from the beginning of the legal proceedings, said he was thrilled with the decision and said that public colleges should be as well. An underlying principle of the decision, Schulman said, was that the justices wanted to “give substantial deference to university administrators in the kinds of policies they can adopt to further educational objectives.”

So what should happen now? Schulman said that those colleges that have agreed to recognize the CLS and those that agreed to recognize Christian fraternities with similarly exclusionary policies “are now open to go back to those decisions.” Schulman said that he didn’t see Monday’s ruling as creating “an obligation” to do so, but that those that were not comfortable with those past decisions would be on solid ground enforcing their original anti-bias policies.

Among those that faced this issue with Christian fraternities were the University of Florida and the University of North Carolina at Chapel Hill — both of which initially tried to enforce anti-bias rules but later agreed to recognize Christian fraternities that didn’t comply with all aspects of those rules. Florida officials declined not only to talk about what they would do now, but even to talk about their current policies.

At Chapel Hill, the university amended its anti-bias rules to say that “student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization’s goals and agree with its beliefs, so long as no student is excluded from membership or participation on the basis of his or her age, race, color, national origin, disability, religious status or historic religious affiliation, veteran status, sexual orientation, or, unless exempt under Title IX, gender.”

Winston Crisp, vice chancellor for student affairs at the university, issued a statement suggesting that change was unlikely: “We developed our policy to honor student rights to equal opportunity and freedom from discrimination in concert with student First Amendment rights to freedom of association. The policy has served us well and we’re comfortable with the balance we have found. We will review the policy in light of today’s Supreme Court decision, but we have no immediate plan to make changes.”

Many law schools were urged by the Christian Legal Society to recognize chapters despite anti-bias rules. Only a few — such as those at the University of Montana and at Hastings — resisted. Many others — among them Arizona State and Ohio State Universities — made changes in policies. Ohio State officials said Monday that they were studying the Supreme Court decision to determine any changes that might be in order. Arizona State officials said that they were checking on their plans.

Marc Spindelman, a constitution law professor at Ohio State, said that the campus dynamic over anti-bias rules may now change because it clearly is possible for public institutions to stick with strict enforcement. “Either policy is now constitutionally acceptable,” he said.

Given that many of the policy changes were made “to satisfy CLS,” he said, “it’s hard to imagine there won’t be pressure to change policies back.” But he said that this pressure may come from students or faculty members, not just from administrators. He said that the Supreme Court decision may be “one stage in a larger battle” for those who want student groups at public colleges not to engage in discrimination.

Others, however, will be pushing colleges that altered their anti-bias policies not to change back. William Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education, said that colleges will have more diversity of viewpoints represented on their campuses if they respect the beliefs of groups like the CLS. “Although colleges have the power to enforce an all-comers policy, they are best not doing so, if they wish to continue a robust debate on their campuses,” Creeley said. He said FIRE would “redouble its efforts” to encourage colleges to respect “freedom of association rights,” which he said could be endangered by policies like those at Hastings.

Creeley also said that the majority decision understated the importance of being a recognized campus group, and he said he was distressed by the references to social media as a tool for non-recognized groups, “as if to suggest that Facebook and Twitter are the functional equivalent of the traditional means of campus communications.”

At Southern Illinois, Christians Who Welcome Everyone

While the Supreme Court focused on the Hastings case, one of the other major legal battles involving CLS involved Southern Illinois University at Carbondale’s law school. In 2005, the U.S. Court of Appeals for the Seventh Circuit ordered the law school to recognize the CLS, pending further legal hearings. In 2007, the university reached an agreement with the CLS that recognized it, and allowed it to discriminate by requiring officers and voting members to adhere to its religious beliefs, provided that anyone could attend programs. The university also agreed to create a $10,000 scholarship fund to provide awards to students selected jointly by SIU and the CLS.

Rod Sievers, a spokesman for the university, said Monday that while the university could now change its policies, that was unlikely. “We felt that this was a pretty good balance between rights of people and the goals of the state,” he said. “We don’t feel any need to go back and revisit this thing.”

Sievers also noted that he had been unable to verify that the CLS exists today at the university.

Another group of Christian students is active, but it is not affiliated with CLS (or any national group) and its members say that they don’t think the CLS is active at Southern Illinois. (A national spokeswoman for CLS e-mailed late Monday night that she thought there still was a chapter.)

Notably, the Christian Law Student Association at Southern Illinois would probably have no trouble with the anti-bias rules at Hastings. Joy Reedy, president of the association and a rising third year law student, said that its members meet once a week on campus to study Bible together and to provide social support for one another. Sometimes they invite professors who “are rumored to be Christian” to meet with the students and talk about how they integrate faith into their careers. The students all describe themselves as evangelical Protestants, but they are from several denominations. Some of the professors they have invited to talk to them have turned out not to be Protestants — they ended up with a Catholic professor one time — but the discussions were good ones, Reedy said.

Asked about the CLS bans on gay students or its faith statement for members, Reedy said that while there are common beliefs among the members of her group, there are no rules, and no one is asked whether their beliefs or actions might violate the beliefs of others. She said that there has never been a problem of non-believers trying to take over the group, or even showing up. There are about eight students most weeks, she said.

What if a non-believer showed up for the weekly Bible discussion and wanted to join the group? “We have no requirements,” she said. “If you want to come, you are welcome to come.”

Schools: University of California Cases: University of California Hastings College of the Law: Denial of Recognition to Christian Law School Group