In 'Chronicle' Article, Higher Education Experts Disavow the Notion that University Policies Are Safe After 'Martinez'

An article in The Chronicle of Higher Education highlights the fact that the Supreme Court's decision in Christian Legal Society v. Martinez probably has narrow applicability because it does not directly address the constitutionality of most universities' policies, affirming what FIRE and others have been saying in response to the Court's decision.

Citing legal experts in the field of higher education law, the Chronicle article posits that Martinez is unlikely to resolve the question of whether public colleges may deny recognition, under the most common types of nondiscrimination policies, to student groups that wish to limit membership and leadership to those who share the group's core beliefs. The article predicts that we will continue to see litigation along the lines of Martinez, as campus groups clash with their schools' administrations on this issue.

The Chronicle quotes Robb Jones, an adviser to colleges on issues related to legal risk, who spoke as part of a panel discussion on Martinez held by the National Association of College and University Attorneys (NACUA) in Washington, D.C.. Echoing what FIRE and others have argued in the days since the decision was handed down, Jones makes the following crucial point:

The ruling, however, focused on a type of policy Mr. Jones said is found at only a minority of colleges: an "accept all comers" policy requiring any student group seeking official recognition to be open to anyone who wishes to join. More common at colleges, Mr. Jones said, is a policy of allowing student groups to have requirements for membership and leadership as long as those requirements are not discriminatory.

It is imperative that one not lose sight of these points when analyzing the import and potential impact of Martinez. As I wrote here earlier in the week, the majority opinion, penned by Justice Ruth Bader Ginsburg, accepted that the University of California Hastings College of the Law had derecognized the Christian Legal Society under the school's all-comers policy despite significant evidence in the record suggesting it had actually punished the group under a nondiscrimination policy that prohibited, among other things, discrimination on the basis of religion and sexual orientation. Focusing specifically on the all-comers policy, the majority held that Hastings' decision to derecognize CLS was viewpoint neutral and reasonable in light of the purpose served by the forum of student organizations.

This is significant because it is very much in doubt whether the Court would have reached the same result had it ruled on the nondiscrimination policy. As the Chronicle points out,

The only member of the majority to specifically argue that the nondiscrimination policy was constitutional was Justice John Paul Stevens, in a concurring opinion that no other justice signed.In his presentation on Wednesday, Mr. Jones said experts on the court disagreed over whether Justice Anthony M. Kennedy, the conservative-leaning justice who joined with more-liberal members to provide the majority's fifth vote in favor of the "all comers" policy, would have signed on to a decision upholding the other policy under consideration as constitutional. "This is an open question," he said.

Therefore:

Whether most colleges' student-group policies would pass muster in the Supreme Court remains unclear, and the chief advocacy organizations challenging the constitutionality of such policies do not appear likely to back off as a result of the high court's latest decision, said Mr. Jones, senior vice president and general counsel for claims management at United Educators Insurance.

As Jones points out, the type of all-comers policy that the Court adjudicated is rarely (if at all) found at colleges and universities. Schools more often espouse the type of nondiscrimination policy that CLS argued it had been punished under, and which the dissent in Martinez argued should have been the proper focus of the Court's attention.

It remains to be seen just how much impact Martinez will have in higher education. It is quite possible that the decision will ultimately be an exercise in hypothetical scenarios, rather than a definitive ruling that reflects the reality on campus. It is also quite possible that we will continue to see challenges to university actions denying recognition to student groups that seek to make belief-based decisions regarding membership and leadership.