Monday, June 28, 2010

CLS v. Martinez case decided today by Supreme Court

Today, the Supreme Court released its decision in Christian Legal Society v. Martinez.

Wow, it's a 5-4 decision against CLS. A victory for student individual liberty and student democracy against discriminatory groups!

A very divided court, so not much precedence will be set by this case: "GINSBURG, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, BREYER, and SOTOMAYOR, JJ., joined. STEVENS, J., and KENNEDY, J., filed concurring opinions. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined."

Ginsburg wrote: "Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum."

In this case, Michael McConnell for CLS tried to go back on an earlier stipulation made by CLS that focused on the All-Comers policy. McConnell had the right idea for winning the case, but the Court didn't go for it. Ginsburg noted, “CLS’s assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary judgment stage.” There's a big-time smackdown of McConnell here for trying to backtrack on the stipulation: “We reject CLS’s unseemly attempt to escape from the stipulation...”

Ginsburg noted that the case was distinguished from Healy, Widmar, and Rosenberger: “In all three cases, we ruled that student groups had been unconstitutionally singled out because of their points of view.”

Ginsburg dismisses the hostile takeover argument: “Students tend to self-sort and presumably will not endeavor en masse to join...” And as Ginsburg wrote, “If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.” This is very good: hostile takeovers are extremely rare, but if they happen, colleges are obliged to prevent them.

Ginsburg leaves open one last hope for CLS, the argument that the Hastings policy was a pretext for targeted religious discrimination: “On remand, the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved.” Unfortunately for CLS, there's no evidence to support this argument, even though many of the Justices probably believed it was true. So they're very unlikely to prevail on appeal, and even if they do, it won't set a precedent for allowing discrimination on campus.

Ginsburg even describes the dissenters' argument as “desperate” at one point. Clearly, this was a case that deeply divided the court in fairly nasty ways.

Up next: the concurring and dissenting opinions.

Concurring, Stevens takes a more liberal position arguing (correctly) that Hastings' original non-discrimination policy is legitimate. This is important, because it does point out how restrictive the Supreme Court actually is in this decision: unless a college explicitly adopts an All-Comers Policy (which colleges generally have in practice, as far as I know), they have to allow groups like CLS to discriminate. So this case, despite the good outcome, will have colleges scrambling to formalize what an All-Comers Policy means, exactly.

Concurring, the swing vote of Justice Kennedy was swayed by the importance of the ideal of a university where students debate ideas and encounter other ideas: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.” Kennedy wrote quite powerfully, “The era of loyalty oaths is behind us.”

Kennedy also noted the importance of stopping hostile takeovers: “petitioner also would have a substantial case on the merits if it were shown that the all-comers policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views." But ultimately Kennedy refused to engage in speculation: “But that has not been shown to be so likely or self-evident as a matter of group dynamics in this setting that the Court can declare the school policy void without more facts.”

But overall, Kennedy's concurring opinion reinforced and expanded the majority's analysis (rather than offering caveats). So I take back my earlier guess that CLS v. Martinez might not stand as a solid precedent due to the divided court. These are five very solid votes rejecting the CLS argument. Kennedy's concurring opinion was definitely the best-written and most thoughtful opinion in this case.

Now, the dissenters. Alito writes the dissent, predictably joined by Roberts, Thomas, and Scalia.

Alito's obnoxious dissent begins in a laughably hyperbolic way, claiming that the decision will result in “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” This is ridiculous on its face. First of all, restrictions on registering student organizations do raise important First Amendment concerns, but they don't amount to “no freedom of expression.” Groups are perfectly free to express anything they want to; this is all about exclusionary membership, not freedom of expression.

Alito calls the Court's majority “deeply disappointing.” Alito imagines a vast conspiracy at Hastings to attack CLS. His evidence? That other groups temporarily were allowed to have discriminatory membership requirements until it was brought to the attention of administrators. Alito claims, “Since Hastings requires any student group applying for registration to submit a copy of its bylaws.... Hastings cannot claim that it was unaware of such provisions.” Really, this is supposed to be a serious argument? Alito actually believes that Hastings administrators carefully read every word of every student group constitution and could not possibly have overlooked one line in any time. By contrast, ignoring CLS' massive code of conduct in the student group bylaws would have been much more difficult to do. Alito's baseless smears of Hastings administrators is simply ridiculous, and totally inappropriate for a Supreme Court decision, which deals with legal principles, not speculation about motives.

Conveniently, Alito simply ignores the stipulation that this case was about the All-Comers Policy: “What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy.”

Alito's argument makes no sense. Even if what Alito is claiming was true (and again, the Supreme Court is not the proper forum for such issues of fact, and the majority leaves open on remand for the issue to be addressed), it would have no relevance to the legal issues at hand. If Hastings in 2004 had discriminated against a religious group, that should have no bearing on whether colleges in general can have All-Comers policies.

Alito goes on to smear his colleagues as anti-religious bigots: “This leaves just one way of distinguishing Healy: the identity of the student group.” This claim is absurd on its face. Healy was arbitrarily denied recognition because the administration disliked SDS. CLS was denied recognition purely because it failed to meet the neutral rules of the campus. CLS could simply make its code of conduct non-binding, and it would be fully permitted to operate on campus as a registered student group tomorrow.

Alito calls this decision “a serious setback for freedom of expression in this country” and bizarrely attributes this to some kind of “international norm.” He's wrong. It's exactly the opposite. If Alito's view had prevailed, it would have been a serious setback for free expression on campus (albeit not the entire country), as national groups forced students to impose highly restrictive rules designed to promote thought policing of students. CLS v. Martinez is a great defense of free expression for students.

Overall, a fantastic decision by the Supreme Court, with very well-written concurring decisions by Stevens and Kennedy. The only disappointing part is the point made by Stevens, that the Court effectively indicates that neutral nondiscrimination policies for student organizations are now unconstitutional, unless all student groups have an all-comers policy applied.

David French of the Alliance Defense Fund
argues that this is a very narrow decision. I disagree with him on how broad this ruling is. In fact, the all-comers policy is effectively how most campuses operate, and how all of them will if CLS challenges them. The remand is strictly to deal with the dubious allegation of religious discrimination by pretext, and even if CLS won, that would be unique to Hastings.

This will require some thoughtful analysis by lower courts, which doesn't happen much in higher education cases. For example, Greek organizations, athletic clubs, and honor societies all fail to meet a restrictive All-Comers standard with restrictive membership (however, as Alito notes, the current Hastings policy gives them some wiggle room for restrictions not based on status or belief). This means that public colleges will need to adopt rules that make these distinctions comprehensible. The Stevens approach would have been better for following the Constitution and for the practical realities of running a university without fear of needless litigation.

I would have preferred a decision that emphasized the right of individual students to join student organizations, the right of students to democratically elect their leaders, and the dangers involved in allowing public institutions to impose religious tests on students created by national organizations.

But I'm quibbling here. Based on the oral argument, I expected a terrible result utilizing Alito's misguided and ignorant approach. Instead, we got the right result for promoting student liberty and the rights of students in organizations to determine their own leaders.


Anonymous said...

With the rise of proprietary institutions and the growing unwillingness of the public to fund state universityies with taxpayer dollars is is only a matter of time before the free ride is over.

As someone at a University in the US, this ruling is just another event to point to in the demise of public academia.

I can't wait for the Jewish students to hang at the Muslim Student Union.

Jay said...

I think the ruling is more significant than you indicate and that the most important effect it will have is on challenges to faith-based social services contracted by cities and states. Many of the faith-based social services organizations claim that they have a religious right or duty to discriminate against people on the basis of religion and sexual orientation. I think such claims will be much more difficult to make as a result of this ruling. The key idea here is that while CLS has the right to discriminate, they don't have the right to do so when they are funded by some of the very students they would deny membership to.