Battle Over School's Non-Discrimination Policy Reaches High Court

The Supreme Court heard oral arguments Monday in a case pitting a public law school's non-discrimination policy against a Christian student group's belief-based requisites.

In just a little over an hour, the court heard from both sides of the debate and mulled over a number of hypothetical situations ranging from racist skinheads in an NAACP club to the takeover of a Muslim group by anti-Muslim students.

At the heart of the case are two policies that student organizations at the Hastings College of Law in San Francisco must agree to abide by in order to function as a registered on-campus group – the all-comers policy and the non-discrimination policy.

Though the college claims that the policies are in place to ensure that all students have equal access to all school subsidized and school recognized activities, the local chapter of the Christian Legal Society say they are unconstitutional because they are overtly viewpoint discrimination.

"It is manifestly overbroad with respect to any purposes stated," argued Michael W. McConnell, lead counsel for the plaintiffs. "And of course, in Healy v. James, this Court held that any restriction on a student speech forum may be no more extensive than is required by its purposes.

"It is also a frontal assault on freedom of association," he added. "Freedom of association is the right to form around shared beliefs."

Gregory Garre, on behalf of the respondents, however, tried to point to the "fundamental difference" between a group that forms around shared beliefs and a group that says people of a particular sexual orientation are not allowed to become members.

"The reason why they are here today is because CLS insisted on the right to discriminate, to exclude students on the basis of their sexual orientation," he argued.

CLS had sued Hastings College of the Law in 2004 after the school denied official recognition to the local chapter of CLS over its refusal to abide by the school's non-discrimination policy.

Attorneys with CLS and the Alliance Defense Fund Center for Academic Freedom have since argued on behalf of the CLS chapter, insisting that the group should be able to decide its own membership and not be required by the college to admit homosexuals and non-Christians as members and officers in order to receive school recognition.

In April 2006, however, the U.S. District Court for the Northern District of California ruled in favor of the defendants, which include school officials and Hastings Outlaw, a recognized student organization.

A panel of the Ninth Circuit Court of Appeals that heard oral arguments in the case in March 2009 later affirmed the district court's opinion, ruling against CLS in an unpublished disposition on March 17, 2009.

Two months after the Ninth Circuit made its ruling, CLS filed a petition for writ of certiorari in the Supreme Court seeking a reversal of the decision – a petition later backed by nearly 100 different organizations and 14 state attorney generals through 22 amicus briefs.

Seven months later, the Supreme Court agreed to intervene in the case – Christian Legal Society v. Martinez.

While the court appeared divided on Monday, Garre was notably interrupted more often than McConnell and by several justices from both the left and the right.

To Justice Sonia Sotomayor, the case "sounds like a debate over whether the policy as the school believes it should be implemented is not a good one."

Justice Antonin Scalia, meanwhile, said he was inclined to find it "weird" to require, for example, the campus Republican Club to admit Democrats, not just to membership, but to officership.

"To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy," he said.

In her remarks, Justice Ruth Ginsburg called the all-comers policy "ill-advised" but pointed to the school's claim that it has been working fine and that there have not been any cases of sabotage or takeovers.

Garre, furthermore, said groups can take measures to prevent such incidences from happening.

But Garre did not rule out that takeovers could happen and said if such a development did occur, the school would reconsider its policy.

As for a group that does get taken over, Garre suggested that the group's original members would likely have to form another group. But he made clear that such an incident "has never happened ever in the history of education."

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