Supreme Court Punts

Justices opt -- for now -- not to resolve dispute over right of public universities to bar anti-gay bias and right of Christian groups to be recognized as student organizations.
July 1, 2009

WASHINGTON -- The U.S. Supreme Court doesn't have to say why it takes some appeals and skips others. Those decisions are typically announced simply with a list of cases that will be considered. But legal experts note that one category of case the justices tend to take is a dispute in which the federal appeals courts are coming up with different approaches to the same issue. And for that reason, many advocates for Christian students and advocates for gay students had expected that the Supreme Court this week would agree to resolve a legal dispute involving the anti-bias policies of many public colleges and Christian student groups that want the right to ignore parts of those policies.

In cases involving universities, an appeals court in the West is backing the universities while an appeals court in the Midwest is backing the Christian groups. But given a chance to hear a case and rule on the issue, the Supreme Court this week passed. And some experts think it is likely to pass on the next appeal that could come its way on the issue, too, potentially leaving the issue unresolved -- at least until some case gets the justices' attention.

"It would be enormously helpful to public universities if the court would clarify the issue," said William Thro, university counsel at Christopher Newport University and former solicitor general of Virginia. Thro is of the view that public universities cannot make a condition of recognition of a religious group anything that the group feels violates its beliefs, and so would side with the Christian students. But he was quick to add that "I have colleagues at other institutions who are very smart people who disagree with my analysis."

He said it was "very strange and problematic" that the exact same situation -- and one that involves important issues such as free association and discrimination -- could be decided one way at universities in Illinois and another at universities in California. But for now, that's what to expect.

The two legal positions in conflict can be summarized this way. The universities argue that anti-bias policies -- including those barring discrimination against gay people -- are legal if they are applied equally to all student organizations. Public universities should have the right to set standards for handing out the limited funds available for student organizations, as long as those standards aren't designed to discriminate against some ideas or groups. The Christian organizations argue in response that they have the right to free association -- and that forcing them to follow university anti-bias rules could result in the groups admitting students who have no shared religious ideas with the organization to start with.

The case the Supreme Court declined to appeal actually involves a high school, but a ruling in that case has been cited in two wins by public universities defending their anti-bias rules.

In the case, known as Truth v. Kent School District, the U.S. Court of Appeals for the Ninth Circuit upheld the right of a public school district in Washington State to deny recognition to a Bible study group whose members were required to hold certain beliefs. The student group sued, charging a denial of its religious rights. But the appeals court found that because the school district had blanket rules about discrimination -- and was not applying them in any different way to the Bible group -- the regulations were legitimate.

The Truth ruling was long and detailed, in contrast to a two-sentence ruling issued by the same court in March that cited Truth to uphold the right of the Hastings College of Law of the University of California to deny recognition to a branch of the Christian Legal Society. Hastings said that the student group's ban on members who engage in "unrepentant homosexual conduct" violated the law school's anti-bias policies. The appeals court decision on Hastings, with a footnote to Truth, said simply: "The parties stipulate that Hastings imposes an open membership rule on all student groups -- all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable."

In May a federal judge also cited Truth and the Hastings College of Law decisions in upholding the right of the University of Montana (which is also in the Ninth Circuit) to deny recognition to a branch of the Christian Legal Society there.

Both of those cases are being appealed -- the Hastings one to the Supreme Court and the Montana case to the Court of Appeals for the Ninth Circuit. Advocates for the Christian students hope that one or both courts will look beyond the Truth ruling. But others doubt that the Supreme Court, having rejected the appeal in Truth, would be quick to take cases based on it.

"It's always hard to predict" whether the Supreme Court will hear a case, said Ethan Schulman, the lawyer who represents Hastings. But noting that Truth was "a published decision with an extensive concurrence and a dissent" and the Hastings case resulted in "a memorandum" from the appeals court, "it would be a little surprising" to take that case now.

Other courts have ruled in favor of the Christian groups on other campuses. In a case that is cited by supporters of the Christian Legal Society, the U.S. Court of Appeals for the Seventh Circuit in 2005 ordered Southern Illinois University to recognize a chapter of the Christian Legal Society.

While the cases in California, Illinois and Montana involve law schools, the issue also is playing out in Greek systems. The U.S. Court of Appeals for the 11th Circuit is expected to rule soon in a case in which Beta Upsilon Chi, a Christian fraternity, challenged the recognition rules of the University of Florida. A similar case against the University of North Carolina at Chapel Hill was dismissed by a federal judge in 2006, but the dismissal was based in part on the university changing its anti-bias policies in ways that allowed a Christian fraternity to be recognized.

So where does this leave colleges and students? Waiting. David French, senior legal counsel with the Alliance Defense Fund, said he views the Supreme Court's decision to skip the Truth appeal as telling those involved in this issue not a flat "no" but a "not yet." The Alliance Defense Fund has backed the Christian groups in these cases, and French said it would continue appeals to the Supreme Court until the matter is resolved. He said it was "problematic" for universities and students to have such differing opinions coming from appeals courts.

He faulted the Ninth Circuit for failing to focus on free association rights and said that, as a result, the discrimination against Christian groups wasn't getting enough attention in the decisions. "This is absolutely a free association issue," he said. "Religious groups should have the same rights to speak their point of view as anyone else," he said.

French said that the relevant precedent is Healy v. James, a Supreme Court decision in 1972 affirming the right of students to form a chapter of Students for a Democratic Society. Healy sets a high bar, French said, for a public university to interfere with student organizations, as doing so would violate their First Amendment rights.

But Schulman, the lawyer for Hastings, said that the Christian groups are exaggerating the damage caused by non-recognition. He noted that they can meet on campus, communicate with fellow students and so forth. All the universities want is to assure that no students suffer discrimination with university funds.

"It's not about discriminating against religious organizations. It applies to all organizations," he said.

Schulman added that he found the Christian groups' positions "dangerous and troubling" in that they could invalidate any anti-bias rules. "If religious organizations can not be required to follow non-discrimination rules, then what is to stop hate groups from seeking university funds to form groups that exclude African American or Jewish or Asian students?"

The appeal of the Hastings case has been filed with the Supreme Court and Schulman will be filing briefs next week to urge the justices to let the decision stand. Look to find out if the Supreme Court is taking the case when the next term begins in October.


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