Battling Exclusion

Today the U.S. Supreme Court will hear arguments in a case that may have profound implications for the future of antidiscrimination policies on college campuses. In Christian Legal Society v. Martinez, the court will consider whether a public law school can limit official recognition and eligibility for school funding to student groups that are open to all students. This case arose when the Christian Legal Society sued Hastings Law School in San Francisco for enforcing such an “all-comers” policy, claiming that the policy violated the group’s First Amendment right to exclude students who are gay or non-Christian.

Although most media have reported this case as a stereotypical clash between LGBT rights and religious freedom, the truth is that much more is at stake. At its core this is not a case about gay rights, and it’s not about the rights of believers to practice their religion. The real question before the court is whether a student organization has a constitutional right to obtain public funds and other government-provided benefits while reserving the right to turn away members on the basis of race, sex, sexual orientation, or any other factor.

If the Supreme Court rules in favor of the Christian Legal Society, then any student group, whether religious or not, would have a First Amendment right to obtain funding, technical assistance, and other subsidies from a public university — even if the student group engages in the most blatant and pernicious forms of discrimination. A student white supremacist group would have a constitutional right to obtain public money while maintaining a racially discriminatory membership policy. A student group that wanted to exclude women from leadership positions likewise would be entitled to receive public funds. Public universities would be required to support — and fund — private student groups that wish to practice the very forms of discrimination that the university itself is legally forbidden to promote.