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Status Quo on Anti-Bias Rules

March 20, 2012

WASHINGTON -- The U.S. Supreme Court on Monday declined to hear a challenge to the anti-bias rules used by San Diego State University to deny recognition to a Christian fraternity and sorority. As is the norm when the Supreme Court declines appeals, it issued no statement explaining why it opted not to hear the case.

Since the case was filed, San Diego State has changed its anti-bias rules with regard to student organizations (although the new rules would still deny recognition to the Christian Greeks). So it is unclear whether the appeal was rejected because the case is moot (as the university argued in briefs), because the old rules were legally appropriate (as the university argued previously), or because the Supreme Court did not want to return to the issue of public colleges' anti-bias rules as applied to religious student organizations.

In numerous instances, religious groups have challenged the constitutionality of anti-bias rules that limit recognition to student groups that don't discriminate on various bases. While public colleges see those policies as essential to promote equity, some religious groups say that these rules require them to select between recognition and their core beliefs.

The Supreme Court's announcement Monday leaves in place a ruling last year by the U.S. Court of Appeals for the Ninth Circuit. The ruling built upon and may in some ways extend a 2010 ruling by the U.S. Supreme Court upholding the anti-bias rules of the Hastings College of Law of the University of California, even when religious student groups said that those policies were inconsistent with their beliefs. The Hastings policy was what the courts have called an "all comers" policy -- to be recognized, a student group must let in all students who want to join. The ruling cleared the way for public colleges and universities to enforce such rules.

The policies at San Diego State -- at the time the suit was filed -- were narrower, and permitted student groups some rights to control their membership. However, San Diego State did require that recognized student groups not discriminate on certain bases, including race, gender, religion and sexual orientation.

The policy was challenged by a Christian sorority, Alpha Delta Chi, and a Christian fraternity, Alpha Gamma Omega. The sorority restricts membership to those who attend an evangelical church and who have a "personal acceptance of Jesus Christ as Savior and Lord." The fraternity requires members "to sincerely want to know Jesus Christ as their Lord and Savior." These and other requirements led San Diego State to reject the two groups' applications to be recognized as official student organizations since they openly discriminate on the basis of religion -- under a policy that the appeals court upheld.

The court noted that there was substantial evidence that San Diego State's rules were designed to promote an equal educational experience on campus, and not with the intent of discriminating against religious groups. (Non-recognized groups have many rights, and so are not barred from campus, only from certain financial and other privileges reserved for recognized groups.)

While the university defended that policy, it also has changed its anti-bias rules to be consistent with the Supreme Court's ruling in the Hastings law case -- stipulating that student organizations must have an "all comers" policy to be recognized. For this reason, the university urged the Supreme Court to reject the appeal as irrelevant.

The Alliance Defense Fund, which represented the Christian student groups that challenged San Diego State, issued a statement criticizing the Supreme Court for not taking the case. The statement, by David Cortman, a lawyer for the Alliance Defense Fund, said: "Public universities should encourage, not censor, the free exchange of ideas. But for now, the supposed marketplace of ideas at San Diego State University will remain a stronghold for censorship. We wish the Supreme Court would have used this opportunity to make clear that the First Amendment protects the right of student groups to employ belief-based criteria in selecting their members and leaders.”

 

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