In 'Martinez,' Justice Ginsburg Disregards Serious Threat of Hostile Takeovers

As FIRE detailed in yesterday's press release, the Supreme Court in Christian Legal Society v. Martinez upheld the University of California Hastings College of the Law's denial of Registered Student Organization (RSO) status to the Christian Legal Society because the student group did not follow the school's "all-comers" policy. This all-comers policy—which we'll discuss further in a forthcoming blog post—requires student groups to open their membership to all students in order to receive RSO status, no matter how antipathetic a particular student's views are to those of the group. This means that at Hastings, CLS, a distinctly Christian group, must now accept as voting members and leaders any student who might be opposed to the mission of the group if it wants to receive access to university benefits afforded to other groups. (The same is true for all groups at Hastings, including political groups.) This is a resounding blow to students at Hastings College of the Law who wish to exercise their First Amendment right to expressive association.

Justice Ruth Bader Ginsburg, writing for the narrow five-member majority, found that the all-comers requirement was constitutional because it was judged reasonable in light of the purposes of the RSO forum. Her analysis of the policy's reasonableness glibly dismisses CLS's concern that, when student groups have no say in who may vote and serve as organizational leaders, the threat of hostile takeovers becomes palpable. Ginsburg devoted only a few paragraphs of her opinion to the topic:

CLS also assails the reasonableness of the all-comers policy in light of the RSO forum's function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real. CLS points to no history or prospect of RSO hijackings at Hastings. ... Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs. And if a rogue student intent on sabotaging an organization's objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.

[...]

Hastings, furthermore, could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes—and to build this expectation into its educational approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy. [Citations omitted.]

Even one saboteur is too many, but Justice Ginsburg's understanding of the ease with which a student group could resist one "rogue" student's attempts to take over a group fails to address what would happen if several students were to band together to overthrow a group's leadership and change its mission and goals. FIRE knows all too well that Hastings cannot necessarily expect its students to exhibit the model behavior that Justice Ginsburg imagines students display on campus. In our amici brief filed on behalf of CLS in this case, we highlighted  incidents in which students or administrators attempted to effectively dismantle a student group. We first detailed the case of the Young Americans for Freedom group at Central Michigan University:

At Central Michigan University (CMU), for example, Young Americans for Freedom (YAF), a conservative political student group, was told by the administration that because of the university's nondiscrimination policy, it could not exclude from membership students who were explicitly seeking to dissolve the group. In February 2007, CMU students started a group on the social networking site Facebook.com entitled "People Who Believe the Young Americans for Freedom is a Hate Group," where students posted messages suggesting ways to destroy YAF. One post suggested that members of the Facebook group "go to their meetings and ... vote eachother [sic] onto the board and dissolve the group."

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When the president of CMU's YAF chapter learned of this plan, he contacted the Associate Director of Student Life to ask if his group could prevent students who disagreed with the group's purpose from joining simply to ruin the group.

The Associate Director of Student Life responded that "you may not require members to be ‘like-minded' as that opens yourself up to discrimination based on political persuasion."

We then brought to the Court's attention cases at Penn State, Louisiana State, Ohio State, Washburn University School of Law, and Southern Illinois School of Law, all of which involved students or administrators who called for derecognition of certain student groups, presumably because of their respective hostility toward those groups. After we submitted the brief, yet another student group, this time at the University of Arizona, was denied official recognition by fellow students (until FIRE stepped in) because of a belief requirement. These cases show that Justice Ginsburg's confidence in the desire for tolerance and exchange of ideas among students and administrators is naive. While many students appreciate that universities are marketplaces of ideas, Justice Ginsburg improperly ignored the very real evidence that some on campus do not wish for the sharing of any ideas but their own.

Justice Samuel Alito, in his dissent, recognizes that the policy

permit[s] the majority to silence a disfavored organization. There is force to CLS's argument that "[a]llowing all students to join and lead any group, even when they disagree with it, is tantamount to establishing a majoritarian heckler's veto" and "potentially turn[s] every group into an organ for the already-dominant opinion." [Citation omitted.]

FIRE knows that Justice Alito is, unfortunately, right. The danger of an all-comers policy is that student groups that express views that are not popular on campus will lose their distinct voice, their unique contribution to the campus' marketplace of ideas, because the policy will force them to accept members who might want to actively disrupt their mission. FIRE encourages other universities to reject all-comers policies and allow student groups of all viewpoints to flourish by enforcing policies that guarantee their students the right to associate with other students around shared ideas.