“Viewpoint Neutrality” and Student Groups in Public Law Schools
March 29, 2009
This post is a bit behind the news because I’ve been catching up after an illness. However, almost two weeks ago, the United States Court of Appeals for the Ninth Circuit (aka “the Ninth Circus”) ruled that a public university law school (University of California, Hastings College of Law) could require student groups to adhere to a “non-discrimination policy” forbidding discrimination on the basis of sexual orientation or religion.
The policy poses obvious problems for any religious student group that wants recognition by the school and access to the fund of student fees available to student groups. The policy requires that any such religious group not discriminate on the basis of religion, which would seem to undermine the group’s whole reason for existence, which is to affirm its own religious tenets.
The appellate court’s opinion in the matter was extremely short, short enough to reproduce in its entirety here:
Before: KOZINSKI, Chief Judge, HUG and BEA, Circuit Judges.
The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).
This decision is interesting because, even though it went against the Christian group that brought the lawsuit, in an odd way, it limits its holding so much as to render it insignificant. After all, the policy that is upheld is characterized as a policy requiring that all students be afforded voting membership in all student groups, regardless of the mission of the group. The court did not go out of its way to place any value in preventing discrimination or comment on any religious matter at all. The opinion means, ironically enough, that under the policy as defined by stipulation of the parties in the lawsuit, Christians could join the “Outlaw Club” (the openly homosexual group recognized by the law school), and if they could get enough votes, take over the leadership and use the group’s allotment of student funds to host a homosexuality recovery program, or a Bible study and ice cream social. That would be quite bizarre, but not much more bizarre than the school’s policy itself.
Something tells me that it won’t take long for the parties to return to court if the law school takes the predictable step of selectively enforcing its non-discrimination policy. I hope there are a lot of Christian women ready to join their local law school feminist clubs to spread the word about how abortion has harmed women.
In any event, it may be best in the end if the Christian group gives up on the idea of getting its miniscule share of the student funds anyway. I had the misfortune of being part of the Student Bar Association when I was in law school, and when I went to bat for the Christian Legal Society after seeing it get shafted on its funds award, I was amazed at the inconsistent reasons that were given. “You didn’t do as many activities last year as (club A that got more funding than the CLS).” “Yeah, but we had more activities than (club B that got more funding).” “Well, club B has more members.” “But we have more members than club A. And further, we had more activities last year and we have more members than the Softball Club, which got more funding.” “Yeah, but the president of the Student Bar is on the Softball Club, so good luck with that one [laughs].” The real discrimination occurs in the Student Bar Association, and I’d be shocked if anyone involved in the process of alloting student funds thinks they are distributed in a “viewpoint neutral” way. I’m guessing that the law students at UC Hastings have no qualms with a little religious discrimination of their own…
[Update: the Supreme Court has decided to review the Ninth Circuit’s opinion.]