The Supreme Court is expected to issue an opinion in Christian Legal Society v. Martinez on Monday, the last day of the Court’s current term. The First Amendment right to freedom of expressive association on our nation’s public college campuses hangs in the balance.
As Torch readers will remember, the case concerns the University of California Hastings College of the Law’s denial of official recognition to the Christian Legal Society (CLS) due to the student group’s requirement that voting members and those holding leadership positions sign a “Statement of Faith” indicating their support for the group’s core tenets. The group’s statement posits that “[a] person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership.”
Despite the fact that the statement also makes clear that “[a] person’s mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership,” Hastings found CLS to be in violation of its non-discrimination policies because of this requirement.
CLS challenged the school’s decision in federal court on First Amendment grounds, alleging a denial of their right to freedom of expressive association. Both the district court and the United States Court of Appeals for the Ninth Circuit ruled against the group, but the Supreme Court agreed to hear the case this past December. The Court did so presumably in part to resolve the circuit split between the Ninth Circuit’s ruling and the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006). In Walker, the Seventh Circuit reached the opposite result on very similar facts, finding that Southern Illinois University’s denial of recognition to its CLS chapter likely violated the First Amendment.
FIRE submitted a friend-of-the-court brief to the Supreme Court on behalf of CLS in February, joined by national student organization Students For Liberty. In our brief, we detailed for the Court the disastrous effect a ruling for Hastings would have on student groups holding unpopular or minority views. We wrote:
If this Court holds that the First Amendment does not protect a student group’s right to exclude those who disagree with its core beliefs, controversial or unpopular groups will be powerless to avoid very real threats to their existence. Depriving belief-based student organizations of equal rights of speech and association simply because those organizations choose to govern themselves according to distinct ideological principles is fundamentally incompatible with this Court’s precedents and relegates groups seeking to organize around unpopular or minority viewpoints to an unconstitutional second-class status on campus. To preserve the First Amendment and the robust free expression it guarantees at our nation’s public colleges and universities, this Court should reverse the Ninth Circuit’s decision.
Our concerns were echoed in an op-ed written for The Wall Street Journal by FIRE Chairman and Co-founder Harvey Silverglate in April. Harvey’s piece, entitled “Free Association and the First Amendment,” argued that CLS’s requirement that voting members and students holding leadership positions share the group’s core beliefs was “nothing strange”; after all, Harvey pointed out, “one wouldn’t expect the College Democrats to accept as voting members or leaders those students who advocate or vote for Republicans.” Instead, the real problem was that Hastings “seeks to enforce a politically correct notion of inclusiveness” even at the cost of CLS’s First Amendment right to limit voting membership and leadership to those students of like mind.
It is difficult to overstate the impact a decisive opinion from the Court will have on freedom of association on campus. If the Court decides for CLS—as we here at FIRE very much hope it does—then we will know that the Court still conceives of the American public college as a true marketplace of ideas, where students may associate with their peers in pursuit of their conception of the truth, free from official interference or mandate.
But if the Court decides for Hastings, the implications are much darker. At public universities across the nation, from Louisiana State University to the University of Montana (and even at private schools like Cornell University, which are watching the Court closely for guidance), student groups organized around shared beliefs would have no choice but to accept into leadership positions students who are hostile to the group’s very mission. The College Democrats would be forced to allow a College Republican, voted in by fellow College Republicans who had stacked the election meeting, to become their leader, and vice-versa. Nor would the local campus chapter of People for the Ethical Treatment of Animals be able to stop a takeover orchestrated by the National Rifle Association, or vice versa. And, thinking of the recent controversy at the University of California, Irvine, the Muslim Student Union would be subject to interference promulgated by those students who sharply disavow the group’s beliefs–and, again, vice versa.
As FIRE and many others have steadfastly argued, this sad result would make a mockery of the long-established First Amendment right to freedom of association. Just as dangerously, stripping student groups of the right to hold minority viewpoints on campus in the name of “non-discrimination” would result in less diversity of viewpoints on campus, not more. That’s because if any minority view espoused by a student group on campus sufficiently angers or offends the rest of the student body, that group will be unable to protect itself from a hostile takeover or other hostile interference in its mission and activities from within—particularly powerful forms of the heckler’s veto. Any FIRE supporter knows that the will to censor exists on campus; a ruling for Hastings would only empower those would-be censors, be they students or administrators.
FIRE eagerly awaits Monday’s ruling. Given the incredibly high stakes for the First Amendment, we do so with both hope and trepidation.