This week, the Supreme Court of the United States decided not to grant certiorari in the case of Alpha Delta v. Reed, declining the appeal request of two religious student organizations at San Diego State University (SDSU). The Supreme Court’s decision lets stand a 2011 ruling from the United States Court of Appeals for the Ninth Circuit that found SDSU not to have violated the First Amendment rights of the student groups, a Christian fraternity and sorority, by denying them official recognition. The Ninth Circuit held that the university’s actions, under a determination that the groups’ requirement that members share the groups’ religious beliefs violated SDSU’s nondiscrimination policy, did not violate the groups’ freedom of association.
The Ninth Circuit’s decision puts religious students and student groups in a very tough and frankly disadvantaged position compared to other students. Religion is one of the traditional protected classes from the Civil Rights Act of 1964 along with race, color, national origin, and (to some extent) sex. However, it’s the only one that is based on belief, not an immutable status. (While you can change your sex, it’s a relatively rare procedure.) You don’t have much of a choice about, say, your race, but if you don’t like your religion, you can readily change it—or even start your own! That’s why telling non-Catholics that they can’t take Mass in a Catholic church has not usually been considered the moral equivalent of telling African-Americans that they can’t eat in your restaurant. But in the Ninth Circuit, it’s now legally acceptable for a university to treat those two decisions as morally equivalent and punish groups that make decisions based on people’s religious beliefs. That’s potentially deadly for America’s tradition of religious pluralism in the long run.
Of course, the entire case is predated by the Supreme Court’s disappointing 2010 ruling in Christian Legal Society v. Martinez. In Martinez, the Supreme Court held that the University of California Hastings College of the Law did not violate a student group’s freedom of association by denying it official recognition pursuant to its "all comers" policy, which required all student organizations on campus to accept all students as prospective members or leaders, even if some students do not adhere to the group’s core beliefs and message or outright oppose them. In the wake of Martinez, FIRE has been staying attuned to issues of freedom of association on campus, including the recent freedom of association struggle at Vanderbilt University. We have been urging schools not to adopt similar "all comers" requirements regarding campus groups, emphasizing that the Supreme Court decided Martinez on very specific and narrow facts that should not define the proper balance between the fundamental right to freedom of association and other university interests.
Because the facts of Alpha Delta did not concern an "all comers" policy, but rather the more commonly seen nondiscrimination policy, the Court had an opportunity to revisit the issue altogether. Regrettably, it has now declined to do so. This is of course disappointing, as the Ninth Circuit’s ruling sets another precedent that imperils student rights both in that federal circuit and possibly elsewhere. FIRE’s Will Creeley noted these concerns when he wrote about the Ninth Circuit’s decision last summer:
[T]he Ninth Circuit argued that the fact student groups like the fraternity and sorority at issue here enjoy access to other means of communication—particularly through online speech-renders the forum’s exclusion of these groups more "reasonable." Noting that the Supreme Court’s majority opinion in Martinez made much of these "alternative avenues of communication," finding that their existence made Hastings’ all-comers policy "all the more creditworthy," the Ninth Circuit held that "San Diego State’s policy should be deemed as ‘creditworthy’ as the policy" at issue there. The Ninth Circuit’s casual assumption on this point—that because students can organize online or outside of school, excluding them from official recognition is less problematic and policies negatively impacting a student group’s ability to spread its preferred message are more "reasonable"—is as worrying in this instance as it was when voiced by the Supreme Court in Martinez. It’s still not at all clear why either the Court or the Ninth Circuit feels so comfortable blithely accepting the exclusion of certain belief-based groups from campus simply because they believe such student groups may find other opportunities for communicating off-campus.
While recognizing that the [nondiscrimination] policy burdens religious groups like the Christian fraternity and sorority here, the court found that this "incidental" burden was insufficient to prove viewpoint discrimination because the policy had not been enacted with the intent or purpose of suppressing the groups’ viewpoint. Determining that "Plaintiffs have put forth no evidence that San Diego State implemented its nondiscrimination policy for the purpose of suppressing Plaintiffs’ viewpoint, or indeed of restricting any sort of expression at all," the Ninth Circuit found that SDSU was not denying the groups recognition on account of their viewpoint, but rather on account of their refusal to comply with the school’s non-discrimination policy. This seems like a classic case of moving the goalposts: Per the Ninth Circuit, not only does viewpoint discrimination have to occur because of a challenged policy or regulation, the policy or regulation has to have been designed to discriminate by viewpoint.
Yes, for these and several other reasons (which are comprehensively discussed in Will’s blog post), the Ninth Circuit’s ruling was, in FIRE’s view, poorly reasoned and poorly supported by the law. It also reaped much of what was sowed by Martinez. Now, unfortunately, the Court has decided not to revisit the matter. The result may well be that students’ fundamental First Amendment rights are worse off in the long run.