I’ve been trying for a couple days now to figure out what to make of this, and I’m still not sure.
In a 5-4 decision this morning, the Supreme Court said that a California law school can require a Christian group to open its leadership positions to all students, including those who disagree with the group’s statement of faith.
The majority opinion, issued by Justice Ruth Bader Ginsburg, said that Hastings College of the Law’s “all comers” policy, which required all groups to open all positions to all students, “is a reasonable, viewpoint-neutral condition on access to the student-organization forum.” The Christian Legal Society (CLS) chapter at the University of California school, Ginsburg wrote, “seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”
“Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.” Ginsburg wrote.
However, Ginsburg gave some hope to CLS, which had argued that Hastings officials had selectively enforced its “all comers” policy, allowing organizations like the Latino group La Raza, but not CLS, to have rules restricting its membership. Noting that lower courts had not addressed is accusation of selective enforcement (and that the Supreme Court “is not the proper forum to air the issue in the first instance”), Ginsburg said the Ninth Circuit Court could consider the argument.
It seems to me that if this is seriously enforced, it would do serious damage to meaningful freedom of association, since the freedom to associate with those of like mind necessarily means the freedom to exclude those who are not of like mind. Obviously, we put limits on that freedom, but still, tossing it out the window entirely does not seem like a rational move. Justice Anthony Kennedy’s concurring opinion may prove important here:
In it, Kennedy said that CLS would have a substantial case “if it were shown that the policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views.”
This isn’t just a theoretical possibility, either.
The spectre of students organizing to take over the leadership of groups they don’t like has already happened at Central Michigan University, said David French, senior counsel at the Alliance Defense Fund and director of the ADF’s Center for Academic Freedom. It’s a strong possiblity at any school with a policy like the one at Hastings, he said in a blog post.
“By emphasizing the value of dissent within groups, the Court ignores the fundamental reality of an all-comers policy: Distinct student organizations exist at the whim of the majority,” French wrote. “If ‘all comers’ can join, then the majority can override the speech of any student group. Thus the true marketplace of ideas exists by the permission (or, more likely, apathy) of the majority. The potential for minority or disfavored groups at schools with an all-comers policy to self-censor to avoid controversy—and potential hostile takeovers—is high.”
This is truly problematic, and an unhappy indicator of where the Court might be moving. But on the bright side, at least, this decision will make it hard for the Congressional Black Caucus to exclude Tim Scott when he wins his House seat this November down in South Carolina . . .