Vikram David Amar

What the CLS v. Martinez Ruling Reveals About the Supreme Court's Processes

By VIKRAM DAVID AMAR

Friday, July 2, 2010

As it generally does at the very end of its yearly Term, the Supreme Court handed down many significant rulings during the last week of June. In this column, I offer some preliminary reactions to one of them, Christian Legal Society v. Martinez.

The case makes important law under the First Amendment, and more generally, it teaches interesting lessons about the process used by the Justices, and the lawyers, to resolve constitutional cases at the Supreme Court.

Before I explain more about the case and what it reveals, full disclosure requires me to note that I was involved in helping the defendant (Hastings College of the Law) in the early stages of the lawsuit (before I left Hastings to rejoin the UC Davis faculty), and that I also provided a bit of assistance to my FindLaw colleague Michael Dorf in his authorship of a brief in the Supreme Court on behalf of the Association of American Law Schools in support of Hastings.

While I am obviously pleased (and perhaps a tad surprised) that the Supreme Court embraced the position that Mike expertly crafted, I will attempt, as best I can, to be more detached in the observations I offer in this column.

The Case's Background and the High Court's Resolution of the Dispute

The lawsuit originated when the Hastings College of the Law in San Francisco (a public law school that is administered independently from, but is affiliated with, the University of California system) declined to grant official recognition as a Registered Student Organization ("RSO") to the Hastings chapter of the Christian Legal Society ("CLS"), a national network of lawyers and law students devoted to upholding Christian ideals.

Hastings has a policy that, as written, requires all student groups seeking RSO status (a status that brings with it various benefits, including an opportunity for a small amount of monetary resources and the use of certain bulletin boards and email distribution channels) to agree to refrain from discriminating in accepting voting members and choosing officers "on the basis of [among other things] religion [and] sexual orientation."

The policy was later explained by Hastings in the litigation to prohibit discrimination based on ideology as well, so that, in essence, officially recognized student groups must accept all comers. As Hastings put it, the policy requires that RSOs must "allow any student to participate, become a member, or seek leadership positions in the organization, regardless of status or beliefs."

CLS students at Hastings maintained that, despite this policy, they had a First Amendment right to receive RSO recognition and support, yet also to exclude non-Christians and practicing gays. The lower courts ruled in favor of Hastings, and the Supreme Court affirmed, by a 5-4 vote, with Justice Anthony Kennedy joining the more "liberal" wing of the Court; Justice Ruth Bader Ginsburg authored the majority opinion.

CLS asserted two principal arguments, both of them ultimately unsuccessful, to the high Court: First, CLS maintained that it had a right to exclude students, and still receive official recognition, because the inclusion of people whom CLS considered to be non-believers would impair CLS's ability to convey its message. Put in its most basic terms, this argument suggested that CLS's inclusion of persons who had a vision of Christianity, or the role of sexual conduct within it, that was different from CLS's stance -- persons who couldn't satisfy a "Statement of Faith" that CLS requires its members to take -- would undermine the viewpoint that CLS attempts to promote.

Second, CLS argued, Hastings's policy in effect discriminated against religious groups on the basis of their viewpoint, since religious groups tended to be the ones most likely to run afoul of the policy.

Observation #1: At the High Court, Doctrine Truly Matters

The Court majority, composed of five Justices, dispensed with both of CLS's arguments by applying a single line of cases and a single judicially-crafted test.

Because, said Justice Ginsburg's majority opinion, the relevant standard governing so-called "limited public forums" -- as established by past Supreme Court cases -- requires only that a government policy be "reasonable" and not overtly viewpoint-targeted, the law school's program passed muster. As the Court pointed out, the First Amendment framework erected by these past cases distinguishes between (1) "traditional" public forums (e.g., streets and parks); (2) "designated" public forums (which are not streets or parks, but are areas that the government has affirmatively opened up generally for expressive purposes, and that are therefore treated like traditional public forums); and (3) "limited" public forums, which are forums created for, and limited to, specific expressive purposes and speakers.

Applying the more lenient test governing "limited public forums," the Court found the Hastings policy to be reasonable because it advanced, at least to some non-trivial extent, Hastings's goals in setting up the RSO program. And the policy wasn't viewpoint-based, the Court reasoned, because a "take all comers" requirement, on its face, does not target any group, but rather requires all groups -- regardless of their particular messages -- to accept persons who may not agree with the group's beliefs.

The choice of the "reasonable" and viewpoint-neutral test --that is, the choice of the appropriate doctrinal box or category on the First Amendment caselaw flowchart -- was crucial to resolving the case. If a different box had been chosen, a different (and more stringent) test would have applied, and a different result might very well have obtained.

To see that point clearly, consider how the majority treated what CLS might have thought was one of its most helpful past cases, Hurley v. Irish-American, Gay, Lesbian and Bisexual Group of Boston, Inc. In that case, the Court unanimously upheld the First Amendment right of a veterans' group sponsoring a St. Patrick's Day parade to be exempt from a state law permitting gay individuals to march in the parade with a banner celebrating their Irish background and their sexual orientation. In rejecting the relevance of Hurley, the CLS Court pointed out that "Hurley involved the most traditional of public forums: the street. That context differs markedly from the limited public forum at issue here" . . . which is governed by a "lesser standard of scrutiny . . . compared to other forums."

Observation #2: Concessions Made In the Course of Litigation Matter At the High Court

Everyone (rightly) focuses on the choices the Supreme Court makes when it decides a case, but the choices that the lawyers make in framing and litigating the case are often just as important.

In the CLS case, one (although perhaps not the only) sufficient explanation of the Court's crucial use of the "limited" public forum test is that CLS seemed to concede that test's applicability at oral argument. Justice Ginsburg said this on behalf of the majority, citing to expressions by the lawyers on both sides, "[T]he parties agree [] that Hastings, through its registered RSO program, established a limited public forum."

Was such a concession inevitable? Perhaps, but perhaps not. Maybe CLS could have argued to have the case viewed through the prism of a designated public forum. Again, a designated public forum is a generally-available forum that the government creates for all speakers on all topics, and such a forum is treated like a traditional public forum as long as the designation remains in place.

An example of a designated public forum might be the forum created by a public college's decision to permit all students to engage in whatever non-violent, non-disruptive expressive and associational activities they choose, on a particular lawn or quad on campus. Had CLS been able to characterize Hastings's RSO program as creating a designated public forum -- one that was essentially created for the purpose of hosting unfettered and unstructured expression and association by students -- then CLS could have tapped into a higher level of judicial scrutiny in its challenge.

The designated-public-forum label might have been plausible because Hastings doesn't seem to limit the subject matter around which any RSO chooses to organize. Organizations can be formed and recognized "to pursue academic and social interests" and to further "education and [help] develop leadership skills." Pursuing all "academic" and "social" interests is an objective that seems quite capacious. (Indeed, Justice Anthony Kennedy's separate writing in the case says that the Hastings policy operates "across a broad, seemingly unlimited range of ideas, views and activities.") A Christian group, a Democratic group, or even a Frisbee club or a co-ed fraternity-like group could all qualify, so long as each was limited to students, refrained from illegal activity, and took "all comers."

That is to say, the fact that RSOs at Hastings don't seem to have to involve any particular connection to the law, or legal education, or any other idea or set of ideas -- might have at least opened the door to a characterization that Hastings simply wants groups to exist and flourish for no specific purpose other than to express themselves. And if it had been proven that Hastings had only this generalized intent regarding its student groups, then perhaps the groups, put together, would have looked more like a designated, than a limited, public forum. But this avenue of argument and/or proof was foreclosed by CLS's own use of the limited forum category.

Consider as well the other key stipulation that CLS made in the litigation: the stipulation that Hastings's policy really does require a group to do more than refrain from racial or religious or sexual-orientation discrimination, and instead requires a group to take "all comers," regardless of belief or ideology. As the back-and-forth between Justice Ginsburg's majority opinion and Justice Samuel Alito's dissent illustrates, that turned out to be a big stipulation.

Most importantly, this stipulation takes much of the wind out of CLS's claim that the policy is viewpoint-discriminatory. According to the stipulation, the policy doesn't single out religion as the one kind of ideology that cannot be used to exclude. By its very nature, the "take all comers" policy is not focused on religion or any other particular ideological basis of potential exclusion. Instead, the policy deals with all exclusionary actions, regardless of their ideological motivation, generally. In light of these stipulated features of the policy, it would be hard to claim that Hastings harbored any hostility to any particular ideology when it adopted the policy.

To be sure, even without this concession-by-stipulation, CLS still might well have lost in its bid to characterize the Hastings policy as viewpoint-based, either facially or in practice. But with this concession in place, CLS's argument about viewpoint discrimination fell particularly flat.

Observation # 3: Deference to Institutional Judgment Matters to the Justices, and Perhaps Especially So in University Cases

All of this brings me to my third and final observation -- that deference by the Court to educational judgments matters a great deal in resolving constitutional cases against universities. Even under the more lax "limited" public forum test, the Hastings policy still had to be reasonable. But given its open-endedness, what purposes does the RSO policy really serve? Does a policy that allows any group, formed around any set of ideas or activities, to exist -- but also requires each such group to take all persons, even those who may vehemently disagree with those ideas or activities -- make a lot of sense? What, precisely, does a policy that requires the Federalist Society (a conservative organization) to accept people who believe not in Federalist Society principles, but rather in the precepts of the American Constitution Society (a liberal organization), accomplish? The Court never says much about this.

To be sure, the Court downplays the fear that had been expressed by CLS that if you allow persons who disagree with a group to join and run it, then you permit the hijacking of the group. For instance, imagine that the Hastings Republican Club could be overtaken by persons who dislike Republican Party principles, basically gutting the original group's objectives. But even if such fears of hijacking are exaggerated, the Court never really explains why Hastings's policy permits the possibility of hijacking to exist at all.

Another way of putting the question is to ask why, for instance, a Jewish student would want to join CLS if the other members of CLS share a view of the virtues of Christianity that is in deep disagreement with the new joiner's? This question is especially relevant for those groups, like CLS, that are not "religion and" groups -- that is, groups that seek to promote religion and a non-religious activity at once, like the (fictitious) Hindu Backpacking Club, or the (equally fictitious) Muslim Chess Club. In those "religion and" instances, members may want to join even if they disagree with some of what the group stands for. But that seems less true for groups like the CLS. If there is a weakness to the majority opinion, I think it is in defining precisely what goals Hastings is reasonably advancing in setting up its RSO policy the way it has.

The majority says, in this regard, only that "extracurricular programs are, today, essential parts of the educational process" and that "involvement in student groups is a 'significant contributor to the breadth and quality of the educational experience.'" Fair enough, but what do these vague statements really mean in the context of Hastings's RSO program, which is so broadly defined?

Justice Alito's dissent does identify one goal articulated by the Hastings policy -- to "promote a diversity of viewpoints among registered student organizations." But this goal would seem to argue in favor of organizational autonomy. For a diversity of viewpoints among organizations to exist, each organization must have one or more viewpoints, which means it must be free -- if this particular goal is to be furthered at all -- to define its own membership, based on beliefs and attitudes.

Now, perhaps Hastings's goal is to promote diversity not just among organizations, but also within each organization, in order to force students of different ideologies and points of views to confront and deal with each other in a civilized way. Justice Kennedy's separate writing hints at this intra-organizational diversity objective, but I would like to have seen the majority document this objective more tightly in what Hastings actually said it is trying to promote, as shown in the record of its policy and in this litigation. When expressive activity is directly regulated, even the application of a mere reasonableness test under the First Amendment should, I would argue, require courts to look carefully at what the government was actually trying to accomplish. Until the specific, actual objective is isolated, it is impossible to make a judgment as to whether that objective is reasonably advanced.

And, of course, even if it were shown that this kind of intra-organizational diversity was indeed Hastings's objective, there would still be a question as to whether forcing people who disagree with each other to be part of a single group would be reasonably likely to be effective; perhaps opposed students would grapple and learn from each other, but they might also splinter off and form another group -- until that group, too, is forced to admit persons who don't agree. Unlike classrooms, where students must be present if they are to receive their educations, membership in any student organization is completely voluntary.

In the end, I think that the Court's finding that Hastings's policy is reasonable turns in significant measure on the Court's reminder that it has "cautioned [] in various contexts [that judges must] resist 'substitut[ing] their own notions of sound educational policy for those of the school authorities which they review." Granted, in the same breath, the Court does say that it owes "no deference" to universities in deciding the meaning of the First Amendment, but it seems to me that resisting an impulse to substitute one's own notions for someone else's is precisely what deference is.

In this regard, the CLS case is reminiscent of the case upholding race-based affirmative action at the University of Michigan seven years ago. There, too, the Court tried -- and, again, not entirely successfully -- to straddle a line between respect for law-school policies and commitment to independent judicial decisionmaking. And there, the Court disclaimed deference to the University, but nevertheless did not seem to apply strict scrutiny with the same avid skepticism it has employed in other cases.

Technically, I suppose, as a logical matter, one could defer to Hastings on the question of "sound educational policy," yet still decide the legal First Amendment question of whether there is a constitutional violation de novo (that is, on a clean slate, without any deference at all to Hastings). But when the test under the First Amendment that the Supreme Court has itself crafted asks whether a policy is "reasonable," deferring to the educational institution on what makes for "sound" education seems awfully close to deferring to the university on the ultimate constitutional question; "sound" and "reasonable" are pretty close concepts.

Perhaps an analogy will illustrate my point: When the Court decides what a "reasonable" search or seizure is, under the Fourth Amendment, I don't know that the Court truly resists substituting its own notion of what makes for legitimate law enforcement for that of the police, if empirical evidence and the Justices' instincts about the way the world works lead them to see things differently than the police do.

Let me be clear: I am not arguing that deference to universities is necessarily wrong. My only suggestion is that we should all appreciate that such deference may be doing the real work in many high-profile cases involving speech, equality and related issues arising in the university setting. And if that is the case, this subterranean factor ought to be brought into the light of day, and acknowledged more directly in the Court's opinions.


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.

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