U.S. SUPREME COURT LIMITS FREEDOM OF ASSOCIATION

James Harvey

Freedom of association, as applied to student organizations, took a significant step back as a result of the U.S. Supreme Court’s decision in Christian Legal Society vs. Martinez.¹  The case may or may not have far-ranging implications, but it does show that the current Supreme Court is less supportive of student First Amendment rights.

The Christian Legal Society at Hastings

The Christian Legal Society (CLS) is an association of Christian lawyers and law students.  In 2004, students at Hastings Law School, part of the University of California system, formed a campus chapter of CLS.  The chapter adopted bylaws that required all members to sign a “Statement of Faith” and excluded from membership anyone who did not adhere to certain religious and social principles.  Those principles included the belief that sex should only occur within marriage between a man and a woman.  These exclusions ran contrary to Hastings’ Nondiscrimination Policy, which prohibits discrimination based on religion or sexual orientation.

CLS applied for status as a registered student organization (RSO) at Hastings.  The application was denied unless CLS agreed to revise its bylaws to end any exclusions based on religious belief or sexual orientation.  CLS refused and instead filed suit against Hastings in U.S. District Court alleging a violation of CLS’s rights to free speech, expressive association, and free exercise of religion.  CLS alleged that it was the only student organization to ever be denied RSO status, that Hastings continued to allow other RSOs to discriminate, and that CLS was being singled out because of its religious views, in particular its views on homosexuality.  The District Court granted summary judgment in favor of Hastings.  That ruling was affirmed by the Ninth Circuit Court of Appeals, and CLS sought review by the U.S. Supreme Court.

The ruling against CLS seemed to create a split of authority in the Federal courts, because the Seventh Circuit had supported the CLS position in a very similar case arising at Southern Illinois Law School, Christian Legal Society v. Walker.²  However, in Martinez the parties had entered into what became a crucial factual stipulation:

“The parties stipulate that 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.”

This so-called “accept all comers” rule, rather than the actual Nondiscrimination Policy that Hastings had applied to CLS, ended up forming the basis of the Supreme Court’s decision.

The Supreme Court’s Decision

The U.S. Supreme Court, in a 5-4 decision authored by Justice Ginsberg, affirmed the decision of the Ninth Circuit and held that Hastings’ “accept all comers” policy does not violate the First Amendment rights of CLS students.

The majority opinion noted that two lines of precedent applied to the case.  First, there is a line of cases analyzing the right of free speech depending on what type of public forum is involved.  In a traditional public forum, like a park or street corner, any limits on speech must satisfy strict scrutiny and must serve a compelling government interest.  But in a “limited” public forum, like a university campus, limits on speech are subject to a lower standard of review – the limits must merely be reasonable and viewpoint neutral.

Second, there is a line of cases analyzing freedom of association, meaning the right to resist governmental compulsion to admit unwanted members.  The Court acknowledged that freedom of association “plainly presupposes a freedom not to associate,” citing Roberts v. United States Jaycees.³  The Court also noted that forcing a group to accept unwelcome members “directly and immediately affects associational rights,” citing Boy Scouts of America v. Dale.⁴  Dale, in particular, seemed to support the students’ case because there the Court had upheld the right of the Boy Scouts to exclude homosexual members based on its group values.

Bringing those lines of cases together in the university context, the majority opinion held that because a university campus is a “limited” public forum, all student First Amendment rights, including freedom of association, will be analyzed under the lower standard of review applicable to such forums – meaning that limits on speech will be upheld if the limit is reasonable and viewpoint neutral.

As for reasonableness, the Court reviewed Hastings’ asserted reasons for requiring full inclusion of all students in all groups, and found them a logical extension of Hastings’ educational mission.  The majority also held that CLS was merely under “indirect” pressure to modify its membership policies, rather than the direct compulsion faced by the groups in Roberts and Dale.  The Court also found that CLS, even if denied RSO status, had “substantial alternative channels” to communicate internally and with other Hastings students.

As for viewpoint neutrality, here is where the stipulation became critical: the parties had agreed that Hastings used an “accept all comers” rule.  The Court noted:

“It is … hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers.”  (Emphasis in original.)

CLS argued that Hastings did not actually have an “accept all comers” rule, claimed it was merely a pretext, and urged the Court to review the Nondiscrimination Policy as written.  But the Court bound CLS to its stipulation and refused to consider evidence offered by CLS about Hastings having singled it out based on its members’ religious beliefs.

Justice Alito authored a blistering dissent, arguing that the majority was making too much of the parties’ stipulation to avoid confronting the constitutionality of the actual policy enforced by Hastings.  The dissent also argued that the evidence showed that Hastings’ policy was merely a pretext for religious discrimination against CLS.

Some Observations on Martinez

The Healy Burden.  In Healy v. James⁵ the Supreme Court held that student groups are entitled to the benefits of university recognition unless the group disrupts campus order.  A university must shoulder a “heavy burden” to justify denying those benefits.  In regard to whether students have lesser rights, the Healy Court held:

“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”

The Martinez majority did not reject Healy, but found it inapplicable because in their view Healy involved direct viewpoint discrimination – the SDS had been banned from campus for its beliefs.  But by choosing to analyze all student First Amendment claims within the “public forum” framework and thereby applying a lower standard of review, the Martinez Court seemed to reverse the Healy burden and place it back on the students.  It is unclear if that will be the effect, but apparently the Martinez majority believes that students have a lesser degree of First Amendment protections while on campus.

In another break with Healy, the Martinez majority believed that CLS could simply function as an unrecognized group.  The Court noted that CLS could still potentially use campus meeting rooms and public bulletin boards; while other communication channels would be blocked, “the advent of electronic media and social-networking sites reduces the importance of those channels.”  The same basic argument was made by the university in Healy, but there the Court rejected it:

[T]he group’s possible ability to exist outside the campus community does not ameliorate significantly the disabilities imposed by the President’s action.  We are not free to disregard the practical realities. … Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.”

Perhaps the Court is right that the Internet has made “campus recognition” less important than it once was.  But this is another example of the Court’s majority backing away from precedent.

Practical Effect.

The CLS v. Martinez decision can be viewed as a narrow one; it affirmed only “accept all comers” policies, which are believed to exist on very few public campuses, and then only if the policy is in fact enforced across the board without singling out any particular group or viewpoint.  Will other public universities enact “accept all comers” policies and thereby attempt to deny recognition to single-sex organizations?  Only time will tell, but such policies would likely encounter opposition from many campus constituencies that would like to maintain exclusionary membership.  And as Justice Kennedy warned in his separate concurrence, evidence that a university failed to enforce such a policy even-handedly, or used the policy to stifle unpopular speech, would present a much different case where the students would regain the advantage.

CLS v. Martinez may have little or no practical impact on fraternities and sororities.  But the case is a milestone because it appears to have swung the pendulum away from the First Amendment rights of students and toward the power of the university.

Mr. Harvey is an attorney in Orange County, California and a member of Phi Delta Theta. He also serves on the NIC Legal Advocacy Committee.

¹  130 S. Ct. 2971 (June 28, 2010).

²  453 F.3d 853 (7^th Cir. 2006).

³  468 U.S. 609, 623 (1984).

⁴  530 U.S. 640, 659 (2000).

⁵  408 U.S. 169 (1972).