Greg Interviewed about the Dangerous Likelihood of Colleges Misinterpreting 'CLS v. Martinez'
August 19, 2010
This June, in a 5-4 ruling, the Supreme Court upheld the constitutionality of the University of California Hastings College of the Law's "all comers" policy in the case of Christian Legal Society v. Martinez. According to this ruling, a college can require all student groups to accept all prospective members and allow them to become voting members and leaders, even if they are fully antagonistic toward the group's mission.
Unfortunately, the negative effects of the Martinez decision will likely be felt not just at Hastings, but at universities across the nation, as the Heartland Institute's Ben Boychuk reports in School Reform News. Boychuk interviewed FIRE President Greg Lukianoff, who said that even though the language of Martinez clearly states that universities are not mandated to adopt "all comers" policies, many will incorrectly claim that the decision requires them to do so.
You can listen to the interview in this recent podcast. Greg warns:
[S]ince I'm used to seeing a fair amount of misrepresentation at universities, they're going to interpret the Supreme Court as essentially requiring them to have "all-comers" policies. Which [the decision] absolutely does not say and did not do.
One school's lawyers even have gone so far as to misrepresent the case as requiring courts to simply "defer to decisions of educational administrators, even in the free speech context and even in higher education." (In fact, the Court said quite the opposite as it evaluated Hastings' policy.) Greg notes that universities are now more likely to expect deference regarding speech restrictions that they do not deserve and will rarely if ever get:
The practical results of this case will be we see a lot of cases to 'derecognize' groups, particularly evangelical Christian groups on campus, and a lot of attempts to use the wording of the opinion to justify everything from speech codes to speech zones.
FIRE and the Alliance Defense Fund have sought to refute the notion that the Martinez decision gave carte blanche to university administrators. As Erica noted in an earlier blog entry here on the The Torch,
The Supreme Court held only that public universities do not violate students' freedom of association when they require official student organizations to accept all students as voting members and leaders.
That's it. Martinez applies in a specific way to one specific student organization policy, not to university speech codes, which consistently lose in court--as recently as yesterday.
It is still to be seen how many universities will adopt "all comers" policies and how much these policies will contribute to the demise of activist, political, and religious organizations on campus. Greg gives us significant cause for concern for the ability of student groups to gather around shared beliefs and goals with integrity.
You can read the full Heartland Institute article here and listen to Greg's podcast interview here.