U.S. Supreme Court Upholds University Non-Discrimination Policy in NCLR Case

Rejects challenge to Law School Policy Requiring Funded Student Groups To Welcome All Students

Today, in a 5-4 decision authored by Justice Ruth Ginsburg, the United States Supreme Court rejected a challenge to the University of California Hastings College of the Law’s policy of requiring all funded student groups to be open to all students. The policy was challenged by the Christian Legal Society (CLS), which argued that the policy violated its right to freedom of association. In Christian Legal Society v. Martinez, the Court held: “In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, . . . Hastings did not transgress constitutional limitations. CLS . . . seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

The National Center for Lesbian Rights (NCLR) and Paul Smith of Jenner & Block LLP represent Outlaw, the lesbian, gay, bisexual, and transgender student group which intervened to defend Hastings’ nondiscrimination policy.

The Court affirmed that the First Amendment does not require public universities to subsidize discrimination: “The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.”

“Today’s decision affirmed the longstanding doctrine that university non-discrimination policies do not violate free speech when applied in a consistent and even-handed way,” said NCLR Senior Attorney Christopher Stoll. “The Court rejected the dangerous argument that anti-gay groups must be given a special exemption from non-discrimination policies. ”

Hastings, like many public colleges and graduate schools, requires student groups applying for university funding and other resources for group related events to abide by a nondiscrimination policy. In 2004, the Christian Legal Society filed a lawsuit against Hastings, arguing that the nondiscrimination policy violated the First Amendment. CLS argued in the Supreme Court that it had a constitutional right to discriminate against LGBT and non-Christian students while receiving official recognition and public funding from Hastings.

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.

“We strongly support free speech and robust dialogue on college campuses,” said NCLR Legal Director Shannon Minter. “The Supreme Court’s decision enhances campus speech and debate by giving universities the option of requiring that officially recognized student groups admit students of all backgrounds and viewpoints, leading to richer discussions both within and among groups.”

Hastings is represented by Gregory Garre and Maureen Mahoney of Latham & Watkins, and by Ethan Schulman of Crowell & Moring LLP. Mr. Garre argued on behalf of Hastings.

read the opinion (pdf)

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