Group Barring Gays Can Be Denied Recognition, High Court Says

By Mark Walsh — June 27, 2010 6 min read
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UPDATED: In a case that attracted wide interest from college groups, K-12 education associations, and religious rights advocates, the U.S. Supreme Court said today that a law school can deny recognition to a Christian student group that refuses membership to gays.

In Christian Legal Society v. Martinez (Case No. 08-1371), the Supreme Court weighed whether public schools and universities may deny full recognition and benefits to student religious groups that require members to subscribe to their beliefs.

The case involved a dispute between the University of California’s Hastings College of Law in San Francisco and the law school’s chapter of the Springfield, Va.-based society of Christian lawyers and law students.

“Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum,” Justice Ruth Bader Ginsburg wrote for the majority. “CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”

Ginsburg’s opinion was joined by Justices John Paul Stevens, Anthony M. Kennedy, Stephen G. Breyer, and Sonia Sotomayor.

Justice Samuel A. Alito Jr., in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, said the decision means that there is “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

“I do not think it is an exaggeration to say that today’s decision is serious setback for freedom of expression in this country,” Justice Alito added.

While today’s opinion focused on a conflict in a higher education setting, there have been cases raising the issue at the high school level.

In one case, Truth v. Kent, a federal appeals court upheld a Washington state school district’s decision to deny recognition to a student Christian club that limited officer positions and voting membership. The court said the school’s application of its non-discrimination policy to the club did not violate the club’s First Amendment free-speech rights.

The Hastings dispute arose after the law school refused to recognize the Christian Legal Society chapter because the group refused to adhere to the school’s non-discrimination policy. Specifically, the group refuses to refrain from discrimination on the basis of religion or sexual orientation, the law school says in court papers.

The CLS chapter said in court papers that it only has voting members, and such members must affirm the national organization’s “statement of faith,” which involves “a shared devotion to Jesus Christ.” The statement says that “unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent’ with the group’s beliefs.

The law school’s denial of recognition to the CLS chapter meant it did not have access to meeting space, to communications channels such as announcements in law school newsletters and e-mail to students, and the opportunity to apply for funding from student activity fees.

The chapter sued the law school in federal court, alleging violations of its rights of free speech, expressive association, free exercise of religion, and equal protection of the law.

A friend-of-the-court brief filed by the National School Boards Association, the National Association of Secondary School Principals, and others school groups sided with Hastings College of Law and called on the court to uphold the application of nondiscrimination policies to student religious groups.

“Forcing public schools to exempt certain student groups from an all-comers nondiscrimination policy would risk the perception” that the school was endorsing the conduct or viewpoint of a religious group, the K-12 groups’ brief said.

Francisco M. Negron Jr., the general counsel of the NSBA, said in an e-mail that his group was “pleased that the court preserved the ability of schools to ensure students are treated fairly through non-discrimination policies. These policies aid the school mission, and the court’s decision is a common sense recognition of the the ‘fairness’ intent behind them.”

The Alliance Defense Fund, a Scottsdale, Ariz.-based group that helped defend the CLS chapter and has defended student religious groups at the K-12 level, said the decision could have a limited impact because few schools have policies exactly the same as that of Hastings.

But “long-term, the decision puts other student groups across the country at risk, and we will continue to fight for their constitutional rights,” Gregory S. Baylor, the ADF’s senior legal counsel, said in a statement. “The Hastings policy actually requires CLS to allow atheists to lead its Bible studies and the College Democrats to accept the election of Republican officers in order for the groups to be recognized on campus. We agree with Justice Alito in his dissent that the court should have rejected this as absurd.”

Religious Materials Case

Separately today, the court denied an appeal involving a Texas school district’s policy limiting when students may distribute written materials to their classmates.

The Plano Independent School District’s 2005 policy permits distribution of materials only during the 30 minutes before and after school, three annual parties, recess, and only passively at designated tables during school hours. Also, middle and high school students may distribute materials in cafeterias and hallways during noninstructional times, but elementary students may not.

Several Plano families say the policy was adopted in response to controversy over efforts by some students to distribute religious materials, including pencils inscribed with “Jesus is the reason for the season” and candy canes with cards describing the treats’ Christian origin.

Parents say their children were barred from distributing the materials over three years, including under rules that preceded the 2005 policy. The parents sued over the alleged restrictions from the earlier years as well as over the 2005 policy, saying it violated their children’s free-speech rights in school.

A federal district court largely upheld the 2005 policy. In a Dec. 1 ruling, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously upheld the policy as well.

The appeals court found that the 2005 rules were valid, content-neutral restrictions on the time, place, and manner of student speech.

“The regulations are aimed at providing a focused learning environment for its students,” the court said, adding that it accepted a narrowing interpretation by the district court that the rules were aimed at mass distribution of materials by students to their classmates, not a student’s passing of a single note or book to another.

In their appeal in Morgan v. Plano Independent School District (Case No. 09-1131), lawyers with the Plano-based Liberty Legal Institute, which represents the parents, argued that the 5th Circuit’s decision “threatens to wipe out any meaningful limits on school officials’ ability to restrict student speech, and greatly
increases the risk that school officials will employ student speech codes as a means of suppressing disfavored views on issues of religion, politics, and other matters of public opinion.”

Several right-leaning groups filed friend-of-the-court briefs urging the high court to take up the case, including the American Center for Law and Justice and the Claremont Institute.

The Plano school district urged the justices not to take up the case, saying the rules were content-neutral “time, place, and manner” regulations of speech permitted under First Amendment case law.

The justices declined the parents’ appeal without comment.

A version of this news article first appeared in The School Law Blog.