Supreme Court Upholds Law School's Non-Discrimination Policy

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June 29, 2010
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On the final day of its 2009 term, the U.S. Supreme Court ruled that the University of California's Hastings College of the Law did not violate the First Amendment rights of the Christian Legal Society (CLS) by insisting that the organization comply with the school's non-discrimination policy that is applicable to all student clubs in order to receive official recognition and funding.

The group of religiously conservative law students objected to the policy of prohibiting student organizations recognized by the university from discriminating on the basis of race, national origin, religion and sexual orientation. CLS bans from membership lesbian and gay students and those who do not sign a Statement of Faith which, among other things, indicates that sexual activity should only occur within a heterosexual marriage.

In an opinion for the court's majority, Justice Ruth Bader Ginsberg wrote that the law school's policy of requiring student clubs to be open to "all-comers" is reasonable and is viewpoint neutral. She streesed that disqualifying the Christian Legal Society from official recognition does not prohit it from continuing to meet on campus and to continue excluding lesbian and gay students.  "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy," Ginsburg noted.

Writing for the court's four dissenters, Justice Samuel Alito argued that the majority opinion results in "no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

In a concurring opinion, retiring Justice John Paul Stevens wrote that a free society must tolerate groups that "may exclude or mistreat Jews, blacks, and women."  But, he added, a free society "need not subsidize them, give them its official imprimatur or grant them equal access to law school facilities.”

Justice Anthony Kennedy, a frequent swing vote, joined the majority and wrote a concurring opinion. "A vibrant dialogue," he stated, "is not possible if students wall themselves off from opposing points of view." Referring to CLS's compulsory Statement of Faith, he added, "The era of loyalty oaths is behind us," alluding to Cold War-era oaths, including one required of all California state employees, compelling signers to conform to specific political beliefs of the time.