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EXTRA: Anti-Bias Rules Upheld

June 28, 2010

WASHINGTON – The Supreme Court ruled today, 5-to-4, that public colleges and universities may require religious organizations seeking recognition or funds as campus groups to comply with anti-bias rules.

The ruling came in a lawsuit by the Christian Legal Society, which challenged the anti-bias rules of the Hastings College of Law of the University of California. The Hastings policy bars discrimination based on sexual orientation and the Christian Legal Society bars gay people from becoming members. Hastings has argued – with backing from many in public higher education – that state universities have an obligation to adhere to strict anti-bias rules. But the Christian Legal Society – with backing from many religious groups – has argued that forcing it to comply with anti-bias rules amounts to infringing on its First Amendment right to freedom of religion.

The Supreme Court's decision, by Justice Ruth Bader Ginsburg, found that the law school's policy was "a reasonable, viewpoint-neutral condition on access" that did not raise First Amendment issues in the way the Christian Legal Society argued.

The opinion explicitly rejects the argument of the Christian Legal Society that a public university has no business limiting its ability to be recognized and to apply its own rules to membership. "CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides," the decision says. "Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership."

A dissent, by Justice Samuel Alito, blasted the decision, saying that it set a principle of "no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning."

Many public colleges and universities have anti-bias policies similar to those of Hastings, so a ruling for the Christian Legal Society would have forced changes at many institutions. The issue has been particularly intense at public law schools (where the Christian Legal Society has sought recognition) and at undergraduate institutions with Greek systems (when Christian fraternities have sought recognition). Some public colleges and universities – faced with legal threats by supporters of the Christian Legal Society – have changed their policies to exempt religious groups, and those institutions could conceivably now reconsider.

Marc Spindelman, a constitution law professor at Ohio State University, said that the Supreme Court's decision "charts a course for other public law schools to follow in defending their own non-discrimination policies." He said that the opinion "may embolden public law schools that granted Christian Legal Society groups a unique right to discriminate to reconsider those decisions. The Court minced no words when it said the Christian Legal Society was asking for ‘a preferential exception.' "

But the Alliance Defense Fund, which has backed the Christian Legal Society in the case, issued a blog post expressing hope that the decision may be based in large part on policies "unique to Hastings," expressing hope that there may be further review of some key claims. David French, a lawyer for the ADF, said: "This is a disappointing decision but one that does not come close to settling core constitutional issues on campus. "

In the Hastings case, lower courts backed the law school, noting that its rules were applied to all groups equally and that they didn’t prevent the Christian Legal Society from meeting on the campus – only from some privileges reserved for recognized campus groups. Other federal courts, however, have backed the Christian Legal Society – most notably in a dispute at Southern Illinois University.

Inside Higher Ed will have full coverage of the decision tomorrow. For those seeking additional background today, all of the briefs in the case may be found here.

 

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