¹û¶³´«Ã½app¹Ù·½

Muddying any straightforward understanding of Monday's Supreme Court is the fact that there were, at various times, at least two distinct policies at issue at the University of California Hastings College of the Law. The majority opinion, authored by Justice Ruth Bader Ginsburg, addressed Hastings' "all comers" policy, whereas the dissent, written by Justice Samuel Alito, pointed out that CLS was initially punished under Hastings' nondiscrimination policy. This confusion in the record, which the Ninth Circuit Court of Appeals will have to sort out on remand, renders the Supreme Court's decision a narrow one, for reasons I will explain.

As on Monday, the Christian Legal Society was initially derecognized by Hastings because its membership requirements allegedly violated the school's nondiscrimination policy. This policy prohibited, among other things, discrimination on the basis of religion and sexual orientation.

However, during the course of litigation, CLS and Hastings stipulated that CLS was actually derecognized under a separate "all comers" policy, which prohibited all student groups from excluding any students as members or leaders for any reason. It was this broader policy that the Ninth Circuit Court of Appeals considered in , holding that Hastings did not violate CLS's freedom of association because the "all comers" policy was both viewpoint neutral and reasonable in light of the purposes served by the forum of student organizations.

The confusion over which policy was actually at stake in Hastings' decision to derecognize CLS made its way into the narrow 5-4 decision.

Justice Ginsburg, writing for the majority, wrote:

CLS urges us to review the Nondiscrimination Policy as written—prohibiting discrimination on several enumerated bases, including religion and sexual orientation—and not as a requirement that all RSOs accept all comers. The written terms of the Nondiscrimination Policy, CLS contends, "targe[t] solely those groups whose beliefs are based on religion or that disapprove of a particular kind of sexual behavior," and leave other associations free to limit membership and leadership to individuals committed to the group's ideology.

[...]

In light of the joint stipulation, both the District Court and the Ninth Circuit trained their attention on the constitutionality of the all-comers requirement, as described in the parties' accord. ... We reject CLS's unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as written. This opinion,therefore, considers only whether conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution. [Citations omitted.]

By contrast, Justice Alito, writing for the dissent, wrote:

The Court's treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS's application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow [see below]. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions "do not wish to ... lend their name[s]." [Citation omitted.]

Justice Alito further wrote:

Hastings claims that this accept-all-comers policy has existed since 1990 but points to no evidence that the policy was ever put in writing or brought to the attention of members of the law school community prior to [a deposition by Mary Kay Kane, then the dean of the law school, in 2005].

[...]

Third, the record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups' viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that "any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in Article 3, Section 1." ... The constitution of the Association of Trial Lawyers of America at Hastings provided that every member must "adhere to the objectives of the Student Chapter as well as the mission of ATLA."

[...]

We are told that, when CLS pointed out these discrepancies during this litigation, Hastings took action to ensure that student groups were in fact complying with the law school's newly disclosed accept-all-comers policy. ... These belated remedial efforts suggest, if anything, that Hastings had no accept-all-comers policy until this litigation was well under way. [Citations omitted.]

Finally, Justice Alito added that CLS's policy has since undergone further mutation, as Hastings began to realize the difficulties of a strict "accept all comers" policy:

[W]hen Hastings filed its brief in this Court, its policy, which had already evolved from a policy prohibiting certain specified forms of discrimination into an accept-all-comers policy, underwent yet another transformation. Now, Hastings claims that it does not really have an accept-all-comers policy; it has an accept-some-comers policy. Hastings' current policy, we are told, "does not foreclose neutral and generally applicable membership requirements unrelated to 'status or beliefs.'" Brief for Respondent Hastings College of Law 5. Hastings' brief goes on to note with seeming approval that some registered groups have imposed "even conduct requirements." Ibid. Hastings, however, has not told us which "conduct requirements" are allowed and which are not—although presumably requirements regarding sexual conduct fall into the latter category.

Thus, as Justice Alito's dissent points out in great detail, Hastings has at least once changed its answer during the course of litigation regarding the policy actually applied against CLS. Justice Alito also points out that Hastings left some ambiguity before the Supreme Court about the status and requirements of whatever remains of its "all comers" policy.

, among others, noted in an editorial yesterday that the "'all comers' policy wasn't the original reason why the legal society was banned, as the four dissenters, led by Justice Samuel Alito Jr., pointed out." The same Times editorial stated that Hastings, likely fearful of the treatment its nondiscrimination policy might receive at the hands of the Court, "later said the society had instead violated its far-less-specific all-comers policy."

Given the disconnect between the majority opinion and the dissent on this point, it is fair to say that CLS and Hastings have some factual points to resolve on remand before the Ninth Circuit. It will be interesting to see whether CLS is able to convince the appellate court that Hastings did not apply the nondiscrimination rationale evenly to all student groups, but rather specifically targeted CLS due to its views.

Furthermore, the uncertainty in the record about Hastings' policy may well mean that Martinez proves to ultimately be a narrow ruling on a policy containing little reflection of the reality on most (if not all) campuses. David French :

Despite what you might read in the mainstream media, the court did not rule that the "classic" nondiscrimination policy (which is in force in hundreds of universities) trumped the student group's right to freedom of association. That issue was left unresolved. Instead, the Court ruled that the all-comers policy (which is in force virtually nowhere) was constitutional—but only if it had been applied equally to all groups on campus.

In other words, the practical impact of the ruling may amount to very little, if colleges and campus constituencies properly understand the distinction between the two types of policies in question as well as the narrow scope of the Court's decision, and if courts interpreting Martinez in future cases understand the same.

FIRE, administrators, and lower court judges all need to realize that present and future instances in which ideological student groups face derecognition under nondiscrimination policies are not to be treated under the Martinez framework, as such a nondiscrimination policy was not the focus of the majority opinion. Rather, Martinez should be viewed as a narrow ruling on the merits of Hastings' "all comers" policy.

By contrast, the Seventh Circuit's 2006 decision in Christian Legal Society v. Walker, a case for which FIREsubmitted an amicus brief, did involve a nondiscrimination policy, and in that case the Seventh Circuit held that Southern Illinois University's application of the policy to deny recognition to its CLS chapter likely violated the group's First Amendment rights.

Unless and until the Court decisively rules on the issue of conflict between a "classic" nondiscrimination policy and the freedom of association, these more common scenarios will likely have to play themselves out on the stage of the public university campus without a specific answer from the Supreme Court to govern the matter.