Vikram David Amar

Can a Public Law School Constitutionally Require a Christian Student Group Not to Exclude Non-Christians and Gay Persons? The Supreme Court Will Decide

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN

Friday, April 23, 2010

In this column, we discuss an interesting case on which the Supreme Court heard oral argument this week. It concerns student First Amendment rights and a public university's efforts to combat discrimination and promote diversity.

The dispute arose when the Hastings College of the Law in San Francisco (a public law school) refused to grant official recognition to the Hastings chapter of the Christian Legal Society (which we will refer to as "CLS" or "the Society"), a national organization of lawyers and law students devoted to upholding Christian ideals.

Hastings has a policy that requires all student groups that seek official recognition and the opportunity to obtain a small amount of resources from the pool of money available for student organizations to agree to refrain from discriminating in accepting voting members and choosing officers. Initially, a number of types of discrimination were banned, such as those based on race, sex, sexual orientation, and religion. Later, Hastings expanded its policy to prohibit discrimination on ideology as well so that, in essence, officially recognized student groups must accept all comers.

The CLS students at Hastings maintained that – despite this policy – they had a First Amendment right to receive recognition and support and to exclude non-Christians and gays as voting members, because such individuals do not adhere to the viewpoint that the Society is trying to promote. Litigation ensued. (Full disclosure: One of us, Professor Amar, was on the faculty at Hastings when the CLS lawsuit originated, and gave his views to the law school and assisted it in securing outside counsel in the lower courts.) 

The federal district court ruled in favor of Hastings, and the Supreme Court granted review from the Ninth Circuit's very brief opinion in the case.

The Freedom of Association Theory, and the Implications of a Potential Ruling in CLS's Favor: Would It Effectively Grant a Right to Discriminate Based on Status?

In the Supreme Court, CLS raises two primary arguments under the First Amendment: one based on expressive associational freedom, and the other based on alleged viewpoint discrimination.

The core expressive association issue is whether CLS has a right to exclude students because their inclusion would impair the Society's message, while still receiving official recognition and a subsidy from Hastings. That issue has been thoroughly discussed by commentators and in the briefs by the parties and so-called "friends of the Court." Thus, we will refrain from reinventing the wheel altogether here.

We think it may be helpful, however, to think more generally about the scope and consequences of a potential Supreme Court decision invalidating the application of Hastings's anti-discrimination policy to the CLS on associational freedom grounds.

One question that may arise if the Court rules in CLS's favor is whether the associational freedom right recognized in this case undermines anti-discrimination policies focusing on suspect characteristics other than religion or sexual orientation. For instance, what if a political or a religious student group argued that its associational freedom is burdened by prohibitions against race discrimination or sex discrimination?

Suppose, for example, a religious student group believes that only men are qualified, under the requirements of their faith, to hold leadership positions in their association. Would that group have a constitutional right to enforce its gender- discriminatory policies as a registered and subsidized student group at a public university– just as CLS argues that it has a constitutional right to discriminate on the basis of religion?

During the Supreme Court oral argument that occurred on Monday, CLS attorney Michael McConnell insisted that CLS challenged only the part of Hastings's policy prohibiting discrimination based on belief, and that Hastings would remain free to prohibit discrimination based on status, such as race.

Yet when asked by Justice Stevens, "What if the belief is that African Americans are inferior?", McConnell reiterated his position that a registered student group "can discriminate on the basis of belief, but not on the basis of status."

That belief/status distinction, however, would presumably allow a student club to limit its membership to only those African Americans who believed (and were willing to proclaim) that African Americans were inferior to White people. We are not sure that a constitutional rule allowing this kind of belief discrimination differs markedly, in its real- world effects, from a rule allowing racial discrimination based on the color of a person's skin.

If a Student Organization Has a Right to Exclude Nonbelievers, Does That Right Extend to All Levels of Membership and All Activities, Or Just Some?

Another question that might arise is whether the right to discriminate and exclude nonbelievers applies only to voting members and officers, or whether it will apply to any and all students interested in participating in a student group's programs.

We understand that CLS at Hastings welcomes everyone to participate in its activities. The open question is whether this is a discretionary choice, which student groups can make or decline to make – or whether a university can require an open-door policy for participation in events as a condition to registration as a student group.

If we follow the logic of recent Supreme Court cases and the CLS brief, it is hard to explain why a student group's rights would be limited to excluding voting members alone. Attendance at an event by nonbelievers – say, an event involving the showing of a film and a discussion of its content – could arguably change the nature of the event in a significant way, and impair the event's usefulness to the organization.

"Religion And" Groups: Associational Exclusivity as Both a Shield and a Sword

A final question is whether the same analysis that CLS advocates in this case should apply to what we call "religion and" groups and activities. The groups at issue in such situations are ones that are organized around both their faith and some additional activity that is not intrinsically religious: a Christian Chess club, or a Protestant Math club, or a Judeo-Christian debating society.

Granted, these kinds of generic clubs or societies are more likely to be organized at a high school or college, rather than a law school. However, it is not clear that the associational freedom principle advanced by CLS in the Hastings case would apply differently to these various educational institutions.

The problem, of course, is that associational exclusivity in a "religion and" setting acts not only as a shield to protect the religious organization from interference, but also as a sword that may make it impossible for members of minority faiths to participate in a wide range of extra-curricular activities.

If extracurricular activities at a public high school, for example, may limit their membership to the dominant religions in the community, there may be far too few students adhering to other faiths to develop alternative programs that can match the activities available to the majority.

CLS notes correctly in its brief that this issue was much more pronounced in Boy Scouts of America v. Dale (a case in which the Boy Scouts were allowed to exclude gay scoutmasters and still operate in New Jersey) than it is in the Hastings case, because, unlike the Boy Scouts, CLS is an exclusively expressive association. But the issue remains an open and troubling one nonetheless.

Because the Court in Dale failed to adequately explain how the relevant standard of review actually applied in that case, we have no basis for even beginning to address this issue today. If the Supreme Court's opinion in the CLS case is as incompletely reasoned and under-explained as its opinion was in Dale, there is reason to worry that the CLS case will only exasperate this problem.

CLS's Viewpoint-Discrimination Argument and Its Implications

The second major theme of CLS's brief is that the Hastings anti-discrimination policy constitutes impermissible viewpoint discrimination. We believe that this argument is not only wrongheaded – it is also dangerous to the cause of religious liberty and equality.

CLS claims that Hastings's anti-discrimination policy is viewpoint-discriminatory in two respects. First, CLS argues that in the Hastings list of bases on which discrimination is forbidden, sexual orientation (which Hastings interprets to include sexual activity, as well as sexual identity) "is the only forbidden ground based on conduct."

All groups, CLS contends, (other than groups that have a problem with homosexuality) are "permitted to insist that [their] leaders conduct themselves in accordance with the group's stated beliefs." Only groups opposed to certain sexual activities – activities that Hastings categorizes under "sexual orientation" – are restricted in their choice of officers by this policy. This, CLS insists, is viewpoint discrimination.

This argument has serious flaws. Does anyone doubt that Hastings would find that discrimination against interracial marriages, dating, or friendships would fall under the prohibition of race discrimination in its policy? But interracial relationships are also conduct. Thus, CLS is simply wrong when it says that anti-gay groups are the only ones that must tolerate the unwanted conduct of prospective members.

Indeed, religion itself has a conduct element, and is not simply about beliefs. One of us is Jewish. That means he holds certain beliefs. But it also means he engages in certain conduct and activities: He practices Judaism. Assume that a registered, non-religious student group at Hastings told a Jewish student, "Look, we are not discriminating against you because of your beliefs. We are discriminating against you because you do Jewish things – you worship the way Jews worship." We have little doubt that Hastings would find this conduct-based discrimination to be religious discrimination and thus to be prohibited under its policy.

Accordingly, we see little in fact or law to support the argument that Hastings is engaged in viewpoint discrimination because sexual orientation is singled out, and groups that oppose gay conduct are distinctly regulated.

A Second Variant of CLS's Viewpoint-Discrimination Argument – and Why It is Even Less Convincing than the First

The second variant of CLS's viewpoint discrimination argument is even worse. CLS argues in its brief that among the list of categories that Hastings protects against discrimination, religion is "the only forbidden ground that is based on belief or opinion."

According to CLS, this singling out of religious students for protection from discrimination also constitutes viewpoint bias. Why? Because "of all the various opinion-based organizations at Hastings, religious groups are the only ones stripped of their right to control their message by controlling their leadership." Since the "environmentalist club" can discriminate against "climate change skeptics," CLS argues, it is viewpoint-discriminatory to prohibit CLS from discriminating against Non-Christians.

Surely, someone on the legal team writing the CLS brief must have begun to have some second thoughts about the idea that prohibiting religious discrimination is viewpoint discrimination. After all, prohibiting religious discrimination is generally thought to be a very good thing for universities to do, and a very good thing for religious persons in general and members of minority faiths in particular.

In recognition of this reality, the CLS brief does state that "the prohibition on religious discrimination is untroubling, indeed commendable, as applied to governmental institutions, businesses, and even nonreligious clubs. But when applied to groups that are organized around shared religious beliefs, this prohibition is unfair, counterproductive, disabling and unconstitutional." There is, tellingly, no citation to authority provided to support this point.

It's a nice try, but this argument simply won't work and, indeed, ultimately collapses upon itself. The constitutional prohibition against viewpoint discrimination is not so easily cabined or limited. CLS contends that it is viewpoint discrimination to treat student organizations based on religious belief differently and less favorably than student organizations based on secular beliefs. But if that is so, why isn't it equally viewpoint- discriminatory to treat students who hold secular beliefs less favorably than students who hold religious beliefs?

Yet under the very policy that CLS appears to endorse, students who hold secular beliefs would receive no protection against discrimination by nonreligious student groups under Hastings's policy. Only religious students are protected from discrimination on the basis of their beliefs.

Let's assume for a moment that religion is to be considered another viewpoint among all the viewpoints protected by the right to free speech – a viewpoint no different than any other political, social, or cultural belief or message – as CLS seems to argue. If so, why is it ever permissible to treat people who hold religious beliefs and express religious messages differently and more favorably than other people who hold and express other types of beliefs and messages – whether political, social, or cultural?

Or , to put the point another way, if it is viewpoint-discriminatory to allow the environmentalist club to discriminate against climate-change skeptics, while prohibiting the CLS from discriminating against Non-Christians, then why isn't it equally viewpoint- discriminatory to allow the CLS to discriminate against environmentalists while prohibiting the environmentalist club from discriminating against Christians?

Yet CLS seems to see no problem with a policy that prohibits non-religious clubs from discriminating on the basis of religion, while at the same time permitting religious clubs to discriminate on the basis of religious, political or cultural beliefs.

Why CLS's View of Free Speech Doctrine Doesn't Work: The Prohibition Against Viewpoint Discrimination Must Be Truly Evenhanded

Basically, we think that in this section of its brief, CLS wants to have its cake and eat it too. CLS wants discrimination against religion to constitute viewpoint discrimination that is prohibited by the free speech clause of the First Amendment. But it does not want discrimination in favor of religion to constitute viewpoint discrimination that is prohibited by the free speech clause of the First Amendment.

Unfortunately for CLS, that's not the way free-speech doctrine works. The prohibition against viewpoint discrimination is, and has to be, fiercely even-handed. If disfavoring religious beliefs, expression and association is viewpoint-discriminatory, then favoring religious beliefs, expression, and association is equally viewpoint- discriminatory.

In our judgment, the Supreme Court has moved a long way down a treacherous path in this area of law. The problem is that the Court continually equates discrimination against expressive religious activities as viewpoint discrimination prohibited by the free speech clause of the First Amendment – rather than reviewing these issues under the religion clauses of the First Amendment.

In continuing down this path, the Court seems oblivious to the fact that, from a speech perspective, there is no basis for treating religious beliefs, expression, or expressive assemblies and associations as unique and distinctive, or as deserving of any special constitutional respect or recognition. Continued adherence to this approach is going to increasingly render discretionary religious accommodations subject to challenge under the free speech clause of the First Amendment.

CLS did not have to pursue this argument in its brief in the Hastings case, and we think it was an error for the group to pursue this approach. CLS's willingness to invoke this argument simply adds momentum to a doctrinal train wreck that is looming in the Court's future.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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