Closing a Discriminatory Loophole

BY Advocate Contributors

June 28 2010 1:40 PM ET

In a 5-4 decision authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court on Monday rejected a challenge to the University of California Hastings College of the Law’s policy requiring all funded student groups to be open to all students. Hastings’ nondiscrimination policy was challenged by the Christian Legal Society, which argued that the policy violated its right to freedom of association.

In Christian Legal Society v. Martinez, the court held that CLS was not seeking equal treatment but rather “special dispensation” to violate a neutral, across-the-board rule that applied to all other funded student groups. Justice Ginsberg stressed that, “In requiring CLS — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, . . . Hastings did not transgress constitutional limitations. CLS ... seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

The court affirmed that although the government cannot directly restrict freedom of speech or association unless it has a compelling reason to do so, the government has much more latitude when it is “dangling the carrot of subsidy, not wielding the stick of prohibition.”

In practice this means that public universities and other government entities can require groups that receive public funding to comply with viewpoint-neutral nondiscrimination policies. In this case, as the court noted, “the all-comers policy ensures that no Hastings student is forced to fund a group that would reject her as a member.”

The immediate impact of the court’s decision is clear. Public colleges now have the right to require registered student organizations to accept all students as members and to prohibit them from discriminating based on status or belief. Colleges can require official student groups, religious or otherwise, to open their membership to everyone, including LGBT people, people of color, women, and people with disabilities.







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