Ninth Circuit Upholds SDSU’s Nondiscrimination Policy

Daniel McCarthy, Manley Burke

In a decision dated August 2, 2011, the United States Court of Appeals for the Ninth Circuit upheld San Diego State University’s nondiscrimination policy that prohibited membership restrictions on certain specified bases.¹  This case differs from the recent Christian Legal Society v. Martinez² case from the Supreme Court in that the membership restrictions in that case mandated an “all-comers policy.”  In Christian Legal Society, the Court expressly declined to address the constitutionality of a narrower nondiscrimination policy like the one in place at San Diego State that only limited membership restrictions on certain bases, such as race, gender, religion and sexual orientation.

In this case, the plaintiffs were Alpha Delta Chi, a Christian sorority, and Alpha Gamma Omega, a Christian fraternity (along with several of their individual officers). Alpha Delta Chi imposes requirements for membership, including “personal acceptance of Jesus Christ as Savior and Lord,” “active participation in Christian service,” and “regular attendance or membership in an evangelical church.”  Likewise, Alpha Gamma Omega requires its members “to sincerely want to know Jesus Christ as their Lord and Savior,” and its officers must sign a detailed “Statement of Faith.”

Both plaintiff organizations repeatedly applied for official recognition from San Diego State.  However, the school refused to recognize both groups because of the school’s nondiscrimination policy, which states:

“On-campus status will not be granted to any student organization whose application is incomplete or restricts membership or eligibility to hold appointed or elected student officer positions in the campus-recognized chapter or group on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under Federal law.”

After San Diego State repeatedly denied recognition to the plaintiffs, they brought suit in federal district court, challenging the school’s nondiscrimination policy under the First and Fourteenth Amendments.  The parties filed cross-motions for summary judgment, and the district court granted San Diego State’s summary judgment motion on all counts.  The plaintiffs appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit first found that San Diego State’s student organization program, like the one at issue in Christian Legal Society, was subject to the limited public forum doctrine.  As such, the court’s analysis focused on whether: 1) San Diego State’s policy was reasonable in light of the purpose of the forum, and 2) whether the policy was viewpoint neutral.

Based heavily on the Supreme Court’s opinion in Christian Legal Society, the court found the policy reasonable in light of the student organization program’s purpose of promoting diversity and nondiscrimination.  The court looked to San Diego State’s Student Organizations Handbook and determined the policy was indeed enacted to promote diversity and nondiscrimination.

In its determination of reasonableness, the court also looked at the alternative methods of communication available to plaintiffs.  Similar to the Court in Christian Legal Society, the Ninth Circuit essentially found the benefits of recognition to be insubstantial.  The court noted that San Diego State still allowed the plaintiffs access to campus facilities, just not for free or at the reduced prices available to officially recognized student groups.  The court also noted that the plaintiffs have access to non-university electronic resources, presumably such as email, facebook and other social media outlets.

Accordingly, the court held that San Diego State’s nondiscrimination policy was reasonable, given its stated policy purpose of promoting diversity and nondiscrimination, combined with the minimal benefits of official recognition that plaintiffs would have received.

The court next addressed whether the policy was view-point neutral as written.  The plaintiffs attempted to distinguish Christian Legal Society on the basis that the all-comers policy in that case was vastly different from the view-point discrimination present in San Diego State’s policy.  Specifically, the plaintiffs argued that the more limited nondiscrimination policy in this case discriminates on the basis of view-point because it allows secular belief-based discrimination while prohibiting religious-based discrimination.  One example the plaintiffs cited involved allowing the campus Republican group from excluding Democrats and vice versa, but not allowing the plaintiffs to exclude non-Christian members.

The court held the plaintiffs failed to prove that San Diego State enacted the policy for the purpose of suppressing plaintiffs’ view-point, and that the policy was view-point neutral as written.  Specifically, the court held, “Constitutionally speaking… San Diego State’s policy is not materially different from the content-neutral all-comers policy approved in Christian Legal Society, and must be similarly upheld against First Amendment challenge.”

Despite finding the policy constitutional as written, the court remanded the case back to the trial court for a trial to determine whether San Diego State fairly and equally applied its nondiscrimination policy to all student groups.  The plaintiffs argued that San Diego State singled them out for disparate treatment based on religious viewpoint.

While this case will proceed before the district court to determine the constitutional application of San Diego State’s nondiscrimination policy, this case serves as yet another bad precedent, on the heals of Christian Legal Society, for freedom of association on public campuses.  Though this case concerned the religious aspects of San Diego State’s nondiscrimination policy, as written, the policy would also prohibit official recognition of single-sex organizations.

1 Alpha Delta Chi-Delta Chapter v. Reed (9^th Cir. Aug. 2).

2 Christian Legal Society v. Martinez, 561 U.S. ___, 130 S.Ct. 2971 (2010)