Protecting Speech and Associational Rights for All Student Groups

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On April 19, the United States Supreme Court will hear oral argument in Christian Legal Society Chapter of University of California, Hastings College of the Law, v. Martinez, et al., No. 08-1371 (CLS brief).  The Court will determine whether a public law school may exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.  The law school claims that, when a religious group chooses its leaders based on shared religious beliefs and moral standards of conduct, the group commits religious discrimination and sexual orientation discrimination in violation of the university’s nondiscrimination policy.

When properly administered, university nondiscrimination policies provide important protections for students.   But when woodenly administered, such policies threaten vital constitutional protections of students’ speech and associational rights.   In CLS v. Martinez, Hastings College of the Law (“Hastings”) has applied a nondiscrimination policy–intended to protect students from being mistreated by the university because of their religious beliefs–in such a way that the university actually has denied a group of religious students fair treatment because of their religious beliefs.

Universities that have dealt with similar situations have typically arrived at a sensible reconciliation of their nondiscrimination policies and their duty to respect students’ diverse religious beliefs.  With modest flexibility and common sense in interpreting their nondiscrimination policies, other universities can avoid needless conflict between nondiscrimination values and First Amendment rights.

The Facts of Christian Legal Society v. Martinez

Like most institutions of higher education, Hastings encourages a broad array of student organizations to meet, express their views, and conduct activities on campus.  When this case arose in the fall of 2004, approximately 60 “registered student organizations” (“RSOs”) formed on the Hastings campus around diverse interests in politics, religion, culture, race, ethnicity, and human sexuality, including Democrats and Republicans, Muslims and Jews, pro-lifers and pro-choicers, numerous ethnic groups, and homosexual and feminist activist student groups.

RSOs are entitled to priority access to meeting space, to apply for a small share of the student activity fees collected from all students, and to communicate through multiple means with students and faculty.  For example, RSOs may post on designated bulletin boards, send mass emails to the student body, distribute material through the Student Information Center, appear on published lists of student organizations in the new student guidebook and on the university’s web listing of RSOs, and participate in the annual Student Organizations Fair.  In the student handbook and its own policies, Hastings quite correctly insists that it neither sponsors nor endorses the views of the RSOs.

Founded in 1961, Christian Legal Society is a national association of lawyers, law students, law professors, and judges who share a common faith and seek to honor Jesus Christ in the legal profession.  CLS provides members with fellowship and spiritual encouragement while promoting justice, religious liberty, and legal aid to the poor.

CLS student chapters exist on nearly 90 American law school campuses.  The signature activities of the chapters are Bible studies, as well as hosting outside speakers to discuss integrating faith with legal practice.  CLS welcomes all students to attend and participate in its meetings and other activities.  However, to be officers or voting members of CLS—and to lead its Bible studies—students must affirm their commitment to CLS’s core Christian beliefs by signing a Statement of Faith.  CLS views acts of sexual conduct outside of marriage between one man and one woman–whether heterosexual or homosexual conduct–to be inconsistent with affirmation of its Statement of Faith.  CLS does not view homosexual orientation, as opposed to conduct, as disqualifying a person from membership or leadership.  Nor does CLS care about a person’s religious heritage, so long as the person holds the basic Christian beliefs articulated in the Statement of Faith.

When a group of students sought to register as a CLS student chapter, they became the only group ever denied RSO status.  Hastings refused recognition based on its nondiscrimination policy, deeming CLS’s requirement that its leaders and voting members agree with its religious viewpoints to be religious discrimination, and CLS’s moral conduct standards for its leaders and members to be sexual orientation discrimination.

Hastings’ Nondiscrimination Policy comprises two paragraphs.  The first forbids only “legally impermissible, arbitrary or unreasonable discriminatory practices,” in accordance with the College’s commitment to “comply fully with applicable law.”  But no law prohibits a student group such as CLS from confining its voting membership or leadership to those who profess and follow its religious creed.  The second paragraph, by its terms, applies only to Hastings itself and to “Hastings-sponsored programs and activities.”  As already noted, Hastings characterizes RSOs as not being “Hastings-sponsored.”

Moreover, as is apparent from the list of prohibited types of discrimination (i.e., “race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation”), the only forbidden category that restricts a group’s ability to be selective in terms of its members’ beliefs or viewpoints is the religious nondiscrimination requirement.  Similarly, the only one even arguably related to behavior is the sexual orientation nondiscrimination requirement.  Although on its face the sexual orientation nondiscrimination requirement might appear to apply only to an individual’s sexual inclinations or identity, Hastings has interpreted it to forbid discrimination on the basis of conduct as well, making homosexual conduct the only type of behavior addressed by the policy.

Supreme Court Precedents Supporting CLS’s Recognition Claim

CLS’s request for recognition is anchored in Supreme Court case law stretching over four decades in three areas: 1) student groups, including religious groups, have free speech and association rights to university recognition; 2) student activity fees must be allocated in a viewpoint neutral manner; and 3) expressive associations have a First Amendment  right to require their leaders and members to agree with the groups’ missions and messages.

Official recognition is a free speech and free association right:  In 1972, in Healy v. James, the Supreme Court held that a student chapter of a radical political group could not be denied official recognition by a public college based on its ideology.   In 1981, in Widmar v. Vincent, the Supreme Court extended Healy to require the University of Missouri to grant official recognition to a religious student group after the university denied access to meeting space because the group engaged in religious worship and instruction.  The Court specifically held that official recognition did not confer upon the religious group the university’s stamp of approval.

University funding must be available to student groups, including religious groups, on a viewpoint neutral basis:   In 1995, in Rosenberger v. University of Virginia, the Supreme Court required the University of Virginia to fund a religious student publication after the university denied funding solely because of the publication’s religious viewpoint.  In 2000, in Board of Regents v. Southworth, the Supreme Court ruled that the University of Wisconsin’s collection of mandatory student activity fees was constitutionally permissible only if the fees were allocated to student groups in a viewpoint neutral manner.

Expressive groups have an associational right to define their leadership and membership to protect their message:  In 1987, in Roberts v. Jaycees, the Court upheld application of a Minnesota antidiscrimination law to require the Jaycees to admit women to membership, ruling that it would not affect the business group’s message.  Concurring, Justice O’Connor observed, “the association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.”  In 1995, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, the Court struck down Massachussetts’ application of its antidiscrimination law to require the organizers of a St. Patrick’s Day Parade to allow a contingent of individuals to march while carrying a banner proclaiming the group’s name.  Freedom of speech protected the parade organizers from forced inclusion of someone else’s message.  In 2000, in Boy Scouts v. Dale, the Court reversed New Jersey’s application of its antidiscrimination law to require the Boy Scouts to admit a homosexual person as an assistant scoutmaster.  According to the Court, the government must normally defer to a group’s decision as to whether inclusion of a leader or member would affect the group’s message.

Avoiding a Conflict Between Nondiscrimination Policies and First Amendment Rights

Too often, some public universities have begrudged religious student groups the rights secured in Widmar and Rosenberger.    Beginning around 1994, CLS and other religious student groups began encountering recognition problems, based on their practice of requiring leaders and members to share their religious beliefs and standards of conduct.

While preferring to resolve these problems without resort to litigation, CLS began to seek court protection when it was the only realistic option to regain recognition.  When a law school revoked recognition after a student, who admitted he disagreed with CLS’s basic beliefs, complained that he had not been allowed to lead a CLS Bible study, CLS sued to regain its recognition.   When Ohio State University’s law school revoked recognition to appease members of a homosexual student organization, CLS sued to recover recognition.  And when the Southern Illinois University Law School revoked CLS’s recognition, the Seventh Circuit Court of Appeals ruled in favor of CLS’s rights of free speech and expressive association.

Universities would benefit from including explicit language within a nondiscrimination policy, or at a minimum in their model constitutions for student groups.  Such language would clarify that student groups retain the right to ensure that their voting members and leaders share their fundamental beliefs, and thus that any nondiscrimination requirements based on beliefs exclude from their application groups formed around beliefs.  For example, in response to the CLS suit, the Ohio State University amended its registration guidelines for student organizations to include:  “A student organization formed to foster or affirm the sincerely held religious beliefs of its members may adopt a nondiscrimination statement that is consistent with those beliefs.”  In response to a lawsuit by a different Christian student group, which it had denied recognition because the group required its officers to share its Christian beliefs, the University of Florida recently added the following language to its nondiscrimination policy:  “A student organization whose primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization.”  By the same token, if a university forbade discrimination based on political beliefs, it should exempt political groups from coverage.  It is one thing to say that the Chess Club may not exclude Republicans; it is quite another to say that Democrats have the right to vote in GOP Club elections.

Under a proper understanding of the First Amendment, CLS v. Martinez is most emphatically not a clash between religious freedom and rights pertaining to sexual orientation.  Religious groups and gay rights groups share common ground in the need for freedom of association.  Both can pursue their objectives best if free to decide for themselves who will lead and speak for them.  It is better to adhere to the First Amendment’s wisdom of “live and let live” than to treat religious and sexual orientation discrimination laws as a rationale for ostracizing dissenting viewpoints.

Professor Michael McConnell is Richard & Fraces Mallery Professor of Law at Stanford Law School and Formerly Circuit Judge, U.S. Court of Appeals for the Tenth Circuit.