"You Cannot be an Equal Participant in the Marketplace of Ideas"

Let me get your response to another section of the Ginsburg opinion. As she writes, "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. 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." This has been a part of the rhetorical battle: is CLS asking to be treated like every other group and not be disadvantaged, or is CLS asking for special treatment?

It goes back to this initial question of what is the right at stake. If you have a free association right, here, then CLS has a constitutional right that exists independently of anything else, to reserve its membership and leadership for people who share its values. So in that sense, what we're asking for isn't special treatment but the recognition of a longstanding, preexisting, fundamental constitutional right. That's not a request for special treatment at all, but for our rights to be recognized.

One of the things that is really an interesting bottom-line in this case is something that a lot of people are going to miss; I already see the media missing it as they say "Anti-Bias Rules Upheld." What the court actually did was uphold an "all comers" policy, not your typical non-discrimination policy. As of the time of the oral argument, University of California Hastings School of Law was the only university in the country with an "all comers" policy. The only one that we were able to find. This is a policy held by a vanishingly small number of universities.

Now, why do they have this policy? The record in this case shows that they actually changed their interpretation of the policy during the course of the litigation. So one of the things that strikes me about this decision is how profoundly narrow it is. In essence, Justice Ginsburg was saying that this policy, which is unique in the United States, is constitutional. But we're going to remand it to make sure that it was applied equally.

In other words, CLS can actually still win the case. If they can show that this policy was not applied equally to all other organizations, then the discrimination against CLS becomes evident. The Supreme Court did not render a final judgment in favor of the law school. It essentially said that an "all comers" policy is constitutional in the abstract. Whether it's constitutionally applied in the concrete example of this litigation is yet to be decided.

What is to prevent other schools, colleges, and universities from adopting the "all comers" policy, and using that as a way to defund and delegitimize student groups who require their members to adhere to their values and beliefs?

There are really practical considerations. Under the Supreme Court's ruling, an "all comers" policy is only going to be constitutional if it applies to everyone equally. Let's take the typical state university. It will often have more than 100 distinct student groups, with over 100 different constitutions, that have lived for many years with the understanding that they have the ability to exclude people who do not disagree with their viewpoint. So what they would have to do is not only change their policy, but review 100 constitutions for 100 different student groups and make sure that they all conform to the "all comers" policy.

The question is, would those student groups placidly go along with that? Or would they push back, and say, "I don't know why I have to give up my ability to maintain the distinct expression and point of view of my group." So it could present a profound political problem on campus as the university clamps down on all student groups.

One of the reasons why the enforcement of the classical non-discrimination policy against student groups caused so few waves on campus is that they were able to use that classic non-discrimination policy to single out religious student groups without touching others. In the "all comers" regime, they have to impact all groups. That's a much more difficult thing to do in the real world than simply single out a disfavored Christian student organization and shove them out the door.

But the obstacles to adopting an "all comers" policy are merely political? There are no legal obstacles, given this ruling.

In the first instance, they are primarily political. By that I mean: because of this ruling, it will be hard to say that there is a fundamental constitutional defect with an "all comers" policy applying to religious student organizations. Justice Ginsburg, in the majority opinion, makes clear that the "all comers" policy in the abstract is going to be constitutional. So in the abstract sense, can a university adopt an "all comers" policy, based on this precedent? It would be hard to say no.

6/28/2010 4:00:00 AM
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  • Timothy Dalrymple
    About Timothy Dalrymple
    Timothy Dalrymple is the CEO and Chief Creative Officer of Polymath Innovations, a strategic storytelling agency that advances the good with visionary organizations and brands. He leads a unique team of communicators from around North America and across the creative spectrum, serving mission-driven businesses and nonprofits who need a partner to amplify their voice and good works. Once a world-class gymnast whose career ended with a broken neck, Tim channeled his passions for faith and storytelling into his role as VP of Business Development for Patheos, helping to launch and grow the network into the world's largest religion website. He holds a Ph.D. in Religion from Harvard's Graduate School of Arts and Sciences. Tim blogs at Philosophical Fragments.
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