The U.S. Supreme Court appeared sharply divided today on whether public schools and universities may deny full recognition and benefits to student religious groups that require members to subscribe to their beliefs.
“To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right?” Justice Antonin Scalia characterized the central question during oral arguments. “That’s crazy.”
But Justice Sonia Sotomayor pressed the lawyer for the Christian Legal Society chapter seeking full recognition at the University of California’s Hastings College of Law in San Francisco about whether schools should be allowed to pick the best way to achieve their goal of prohibiting discrimination.
“Don’t we give deference to an educational institution in terms of the choices it makes about affecting its purposes?” Sotomayor said. “And the purpose here is, we
don’t want our students to discriminate.”
Christian Legal Society v. Martinez (Case No. 08-1371) has attracted wide interest from college groups, K-12 education associations, and religious rights advocates.
A friend-of-the-court brief filed by the National School Boards Association, the National Association of Secondary School Principals, and others school groups sides with Hastings College of Law and calls 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.
The concern is not purely theoretical. While many of the conflicts have involved Christian Legal Society chapters in law schools and other higher education settings, 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 court in that case also held that the school’s actions did not violate the federal Equal Access Act, which requires secondary schools receiving federal funds to treat all non-curricular clubs on an equal basis. The act does not apply to higher education.
During oral arguments today in the Hasting case, the justices did not have time to delve into the implications for K-12 schools, largely because they had many factual concerns about how the law school treated the CLS chapter. There was back and forth over whether the school had an “all-comers” policy requiring student groups to accept everyone, or whether the CLS chapter was targeted for enforcement because it did not accept those who advocate a “sexually immoral lifestyle,” as the group puts it in court papers.
But the justices also had hypothethicals.
Justice Ruth Bader Ginsburg pressed Michael W. McConnell, the lawyer for the CLS chapter, on whether the public school must recognize a group with a belief that, “based on their reading of the Bible, that only white men can lead the Bible studies [and] can become officers of the group.”
“They can insist that everyone who participates in the group have that belief, and that ... may mean it’s going to be a very small group,” McConnell said.
Justice Anthony M. Kennedy, who appeared genuinely torn about how to rule in the case, asked the lawyer for Hastings law school, Gregory G. Garre, “Why doesn’t this just all work out?”
“If the Christian Legal Society has these beliefs, I am not so sure why people that don’t agree with them want to belong to them,” Kennedy continued. “Doesn’t it work out that
the Democrats, they don’t want to go to the Republican club and run for officership anyway? So what interest does the school have in this policing mechanism that it’s imposing?”
“If you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line,” Garre said. “And I think a school can reasonably say: We don’t want to get into this business at all; we want to
allow all comers for all school-subsidized [groups].”
In relation to Kennedy’s concern, Justice Samuel A. Alito Jr. raised the specter of a small campus Muslim group being overwhelmed under an accept-all-comers policy by a faction of anti-Muslim students.
“There is no evidence that it has happened,” Garre responded. “Groups can take measures to prevent it,” such as requiring attendance at a certain number of meetings before people can become members, he said.
Chief Justice John G. Roberts Jr. shot back: “Okay. They take over the group and the first thing they do is say: ‘We are abolishing the attendance policy.’”
The case is expected to be decided by the end of the court’s term in June.
A version of this news article first appeared in The School Law Blog.