2009's Struggle for Freedom of Association on Campus to be Resolved by Supreme Court in 2010

As FIRE's Director of Legal and Public Advocacy, perhaps the most exciting thing to me about the New Year is the fact that in 2010, the Supreme Court of the United States has the opportunity to protect the First Amendment freedom of association rights enjoyed by student groups at public colleges and universities. By agreeing to hear the case of Christian Legal Society v. Martinez this spring, our nation's highest court has promised to definitively answer important questions about the First Amendment's protection of the right to freedom of expressive association on public college campuses.

Christian Legal Society v. Martinez is the latest in a too-long list of cases involving a conflict between Christian student groups and university nondiscrimination policies—and, given the Court's forthcoming intervention, it will hopefully be the last.

In a fact pattern comparable to that found in similar cases heard by courts across the country in recent years, Martinez concerns the University of California at Hastings Law School's refusal to recognize the Christian Legal Society (CLS) as a registered student group. Hastings based its decision on the fact that while all students may attend and participate in CLS meetings and activities, including dinners and prayer services, CLS requires its voting members and group leaders to sign a "Statement of Faith," which asks would-be members to assert their belief in a particular religious worldview. Specifically, in its petition for certiorari submitted to the Supreme Court, CLS describes the Statement of Faith as "orthodox in the Protestant evangelical and Catholic traditions," including reference to a certain understanding of "biblical principles of sexual morality."

CLS's petition explains that

[a] person who advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible for leadership or voting membership. A person's mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership. CLS individually addresses each situation that arises in a sensitive Biblical fashion.

It's these requirements that give rise to the non-discrimination violation, in Hastings' view. But, crucially, CLS does not prohibit gay students from voting membership or leadership positions if the gay student shares CLS's view of homosexuality. CLS believes that effectively expressing the group's view of homosexuality (or adultery, or premarital sex) requires those students who do engage in this conduct to be repentant about their actions, per CLS's religious beliefs. That means that CLS isn't discriminating based on a student's immutable status, but rather that CLS is "discriminating" based on a student's changeable beliefs and conduct. In a nutshell, CLS asks that its membership and leadership be comprised of students who actually believe in the group's core tenets, in the same way that the College Democrats want their membership and leadership to be Democrats and the College Republicans expect their membership and leadership to be Republicans.

What Hastings called "discrimination," then, is actually the entirely reasonable desire of a student group to control its message by ensuring that its members and leaders share the group's beliefs. As I wrote here on The Torch in November, discussing a recent anti-"discrimination" initiative at Cornell University:

[T]he proposed changes sought to prevent student groups from "discriminating against" students by making any such "discrimination" a violation of the Code of Conduct.

This might sound like a reasonable goal on its face. But the reason I'm putting "discrimination" in quotes is because the proposed change was designed specifically to prevent student groups from requiring that their leaders and voting members actually agree with and abide by each student group's beliefs and core tenets.

That's not discrimination—that's engaging in expressive association, and it's protected by the First Amendment.

All of Cornell's 833 student organizations should have the right to require that their leaders and voting members actually believe in the group's raison d'etre. After all, the Cornell College Democrats would be understandably frustrated if they were forbidden from removing a Republican student activist from their leadership. And accusing the College Libertarians of "discrimination" for kicking out a voting member who wrote op-eds ridiculing libertarian principles wouldn't make sense, either.

The problems with the proposed change are just as apparent when considering its application to Cornell's religious student groups. If the Catholic Fellowship asks that voting members and leaders be practicing Catholics, are they discriminating against Muslim students? If Hillel or the Hindu Student Council require that their leadership be Jewish or Hindi, respectively, are they discriminating against Cornell's atheists?

Of course not. In each example, the student group is simply insisting that it be allowed to control its message by making sure its members actually believe in its purpose. That's why this is a free expression issue.

Nevertheless, Hastings found that CLS's Statement of Faith requirement violated the school's nondiscrimination policy. Hastings' refusal to recognize CLS prompted litigation, and in a March 2009 ruling by the United States Court of Appeals for the Ninth Circuit, CLS's constitutional challenge to Hastings' nondiscrimination policy was rejected. In a perfunctory opinion spanning just one paragraph, the Ninth Circuit acknowledged that the school's policy requires student groups to "accept all comers as voting members even if those individuals disagree with the mission of the group" in order to gain official recognition from the school, but held that these "conditions on recognition are therefore viewpoint neutral and reasonable."

The Ninth Circuit's opinion relied exclusively on its earlier decision in Truth v. Kent School District, 542 F.3d 634 (9th Cir. 2008). Truth featured virtually the same fact pattern as that presented by Martinez, except in the high school setting. Anticipating the damage to collegiate freedom of expression rights presented by Truth, FIRE filed an amicus curiae brief in April asking the Supreme Court to grant an appeal of the Ninth Circuit's ruling. Our brief outlined the split in the federal circuit courts of appeal created by the Ninth Circuit's ruling, and argued that the Court's intervention was necessary to eliminate confusion and protect First Amendment rights on campus. Specifically, we contrasted the Ninth Circuit's holding with the United States Court of Appeals for the Seventh Circuit's analysis in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), in which the Seventh Circuit found that Southern Illinois University School of Law had violated the First Amendment rights of its CLS chapter by denying recognition to the school's CLS chapter. We wrote:

The Ninth Circuit's treatment of a student group's expressive association claim is at odds with the Seventh Circuit's decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006). The facts in Walker are analogous to those in Truth. In Walker, Southern Illinois University School of Law, a public law school, cited a violation of school nondiscrimination policy to deny recognition to a Christian student group because the group's membership requirements excluded individuals who engaged in homosexual conduct. Unlike the Ninth Circuit in Truth, however, the Seventh Circuit recognized the facts in Walker as presenting a "‘forced inclusion' case," as in Dale and Hurley. Accordingly, the Seventh Circuit applied the Dale standard, holding that "[i]nfringements on expressive association are subject to strict scrutiny." Walker, 453 F.3d at 861. Finding that "CLS's beliefs about sexual morality are among its defining values," the Seventh Circuit concluded that "forcing [CLS] to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist." Id. Compelled by this Court's holdings in Dale, Healy, and Hurley, the Seventh Circuit issued a preliminary injunction against Southern Illinois University, prohibiting the school from denying recognition to CLS. Critically, the Seventh Circuit distinguished the student group's expressive association claim from a concordant free speech claim, addressing each in separate sections of the opinion. This approach allowed each distinct First Amendment claim to be considered discretely, with the proper scrutiny, and in the correct analytical framework.

In sharp contrast, rather than accord expressive association a distinct analysis befitting its importance (and demanded by precedent), the Ninth Circuit reduces expressive association to "simply another way of speaking," indistinct from other speech claims. Truth, 542 F.3d at 652 (Fisher, J. and Wardlaw, J., concurring). In doing so, it robs expressive association of its unique value as "a correlative freedom" to other First Amendment protections, "especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority." Roberts, 468 U.S. at 622.

Resolving the split between the Ninth Circuit and the Seventh Circuit is just one of the important aspects of the Supreme Court's decision to hear Martinez; another is the fact that this isn't an isolated problem. Public colleges and universities across the country are reading non-discrimination clauses in a way that violates the rights of religious student groups. Lawsuits have been filed against many public universities, including Southern Illinois University-Carbondale, the University of Minnesota, Rutgers University, The Ohio State University, Pennsylvania State University, the University of North Carolina at Chapel Hill, Arizona State University, Southwest Missouri State University, the University of Oklahoma, and the University of Florida. Of these recent suits, several have resulted in out-of-court settlements and university policy changes-specifically, at the University of Minnesota, Rutgers, Ohio State, Penn State, Southwest Missouri State, Arizona State, and the University of Oklahoma. Others, at Southern Illinois University and the University of North Carolina, were resolved in favor of the religious student groups by court order or decision. So by issuing a decisive ruling here, the Supreme Court can end this problem on campuses across the country in one fell swoop and provide much-needed guidance to lower courts faced with this conflict.

There's much more to be said about Martinez, which I consider to be perhaps the most important case regarding FIRE's issues to come before the Supreme Court in our decade of existence. As we announced on The Torch last month, FIRE will be filing an amicus curiae brief with the Supreme Court, so you'll be hearing much more about Martinez in 2010.