U.S. Supreme Court Weighs College Non-Discrimination Policies

Case may impact public universities around the country

Today, the United States Supreme Court will hear arguments in Christian Legal Society v. Martinez, in which it will consider whether a student organization has a constitutional right to obtain public funds and other government-provided benefits while reserving the right to exclude members on the basis of race, sex, sexual orientation or any other factor.

The case was filed by the Christian Legal Society (CLS), a national organization of Christian lawyers and law students, against the University of California’s Hastings College of the Law. The National Center for Lesbian Rights (NCLR) and Paul Smith of Jenner & Block represent Outlaw, the lesbian, gay, bisexual, and transgender student group at Hastings, which intervened to defend the law school’s nondiscrimination policy. Hastings is represented by Ethan Schulman of Crowell & Moring LLP. Former United States Solicitor General Gregory Garre, chair of Latham & Watkins’ Supreme Court and Appellate Practice Group, will argue on behalf of Hastings.

“If the Supreme Court rules in favor of the Christian Legal Society, then any student group, whether religious or not, would have a First Amendment right to obtain funding, technical assistance, and other subsidies from a public university—even if the student group engages in the most blatant forms of discrimination,” said NCLR Legal Director Shannon Price Minter. “A student white supremacist group would have a constitutional right to obtain public money while maintaining a racially discriminatory membership policy. A student group that wanted to exclude women from leadership positions likewise would be entitled to receive public funds. Public universities would be required to support—and fund—private student groups that wish to practice the very forms of discrimination that the university itself is legally forbidden to promote.”

Like many public colleges and graduate schools, Hastings allows law students to organize student groups that can apply for university funding and other resources for group-related events. To be recognized as an official student group, all student groups must abide by Hastings’ policy on nondiscrimination. In 2004, the Christian Legal Society filed a lawsuit against Hastings, arguing that the nondiscrimination policy violated the group’s First Amendment right to discriminate against LGBT and non-Christian students.

On March 17, 2009, the United States Court of Appeals for the Ninth Circuit ruled in favor of Hastings and Outlaw, rejecting CLS’s arguments that the school’s policy violates its rights to freedom of speech, religion, and association. The court explained: “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.” The Ninth Circuit’s decision affirmed an earlier ruling by United States District Court Judge Jeffrey White upholding the nondiscrimination policy against CLS’s First Amendment challenge.

On December 7, 2009, the Supreme Court of the United States granted CLS’s petition for writ of certiorari and agreed to review the court of appeals’ decision. A decision is expected by early July of 2010.

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