Do university rules discriminate against student faith groups?

“Every student group at Hastings has a reasonable choice: it may either abide by the open-membership policy and qualify for the modest funding and benefits that go along with school recognition, or forgo recognition and do as it wishes,” writes Gregory Garre, in his brief on behalf of the law school. “No group is forced to do anything.”

There are roughly 60 registered student organizations at Hastings. The groups are eligible to receive school funding from student activity fees, meet in school facilities, and use school communications systems to publicize meetings and activities. The CLS is the only student group ever denied access to those benefits.

University: open membership fosters discourse

The Hastings brief says the open membership policy is aimed at fostering discourse, cooperation, and learning while exposing students to different views and discussions within groups.

The Hastings policy was upheld by a federal judge who ruled the school had not violated the Christian students’ right to free speech or free association. The judge said the school merely placed conditions on a groups’ obtaining official status as a registered student organization. The CLS was free to choose whether to accept the Hastings funding and other benefits while complying with the non-discrimination policy, or reject it and organize the group as it wished without official help or backing, the judge said.

The Ninth US Circuit Court of Appeals affirmed the judge’s ruling.

In his brief, McConnell approaches the free speech and free association issues from the perspective of the Christian students, rather than Hastings administrators.

“Under the First Amendment…, Republican student groups have the right to exclude Democratic leaders, feminist student groups have the right to exclude male chauvinists, and religious groups such as CLS have the right to exclude leaders who reject their core values,” he writes.

McConnell says the school maintains two non-discrimination policies – a written policy banning discrimination on the basis of one’s faith, and a verbal policy banning all discrimination by any group.

He says that the school is selectively enforcing the verbal “all-comers” policy, allowing secular groups to limit membership to like-minded students while accusing like-minded Christian students of discrimination.

'They must comply with the First Amendment'

“Public colleges are not constitutionally obligated to open their facilities for speech. But all of them do so,” McConnell writes. “And having done so, they must comply with the First Amendment.”

Washington lawyer Paul Smith filed a brief in the case on behalf of a Hastings student group called Hastings Outlaw. The group formed in part to fight homophobia, transphobia, racism, and sexism. The group was granted status to intervene as a party in the case.

Hastings has a legitimate interest in allocating its limited resources only to student groups that are open and accessible to all students, Mr. Smith writes. He says the policy is viewpoint neutral and does not suppress CLS’s ability to spread is message or associate with like-minded students.

“As a group of students organized for religious purposes, CLS remains free to exercise its expressive association rights both on the law school campus and in the community at large,” Smith says. “But CLS has no right to demand a subsidy from the law school while failing to abide by the requirement that all [registered student organizations] must be open to all students.”

The case is Christian Legal Society v. Martinez. A decision is expected by late June.

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