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Wednesday, June 30, 2010

Vischer on the CLS case

I was very disappointed by the decision in the CLS case.  (Disclosure:  I submitted an amicus brief in support of CLS.)  Yes, Hastings' "all comers" policy is not typical (it is not, in my view, actually the policy that Hastings employs, or applied to CLS), and so perhaps the ruling will not result in an academy-wide de-recognition of CLS (and other similar organizations) chapters.  I realize (of course) that the relevant doctrine -- "limited public forum", "viewpoint neutrality", "government speech", "unconstitutional conditions", etc. -- is tangled.  For me, though, the decision is most disappointing for the embrace, in the majority opinion and in the Kennedy and Stevens concurrences, of the idea that there is something worthy-of-government-procurement -- something that, we are told, weighs in favor of Hastings' policy -- about imposing dissent, or perhaps just dissonance -- on a religious association in order to teach that association's members respect for difference, the importance of dialogue and toleration, etc.  I'm a broken record (that is, a bore) on this, I know, but "discrimination" on mission- and ethos-related grounds by a religious association is not, in my view, "discrimination" of the kind that the state has an interest in opposing (or even in just avoiding subsidizing).

I recommend, by the way, my Mirror of Justice colleague Rob Vischer's post on the case (here).  Here's a bit:

[T]he majority noted that the law school’s (alleged) “all comers” policy could be a reasonable expression of the school’s desire to encourage tolerance, cooperation, and learning among students.  Fair enough.  But, the majority added, to the extent that the policy “sometimes produces discord,” the law school can reasonably include among its goals for the policy “the development of conflict-resolution skills, toleration, and readiness to find common ground.”  The message to CLS: “you nutty evangelicals have the opportunity to learn tolerance and cooperation by admitting all students, even those who defy your group’s animating beliefs; if you find that this policy creates discord, you have the opportunity to learn conflict-resolution skills.”  Obviously, the same skill sets could be equally in play with a policy that permitted groups to pursue their own chosen beliefs, with significantly less fallout for associational freedom and expression. 

. . .Justice Stevens, in his concurring opinion, notes that “the policy may end up having greater consequences for religious groups . . . inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths.” (emphasis added)  Note what this phrasing communicates about the Justice’s mindset.  I’ve never met a CLS member or leader who desired “to exclude students of particular faiths.”  The point, for CLS and every other religious group of which I have been a part, is to engage in the mutual formation and expression of truths held in common.  A desire to exclude is not the point of the project, nor is the exclusion aimed at “particular faiths.”  The exclusion is a consequence – and usually a consequence that is neither celebrated nor trumpeted – of a commitment to meaningful inclusion.

Posted by Rick Garnett on June 30, 2010 at 10:11 AM | Permalink

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I thought the issue in the case wasn't whether the group was discriminatory, but whether they had a right to be recognized by the school. Weren't they suing on some First Amendment Freedom of Assembly theory? If so, they definitely should have lost.

The right to associate with whoever you want is not the same as the right to funding from a public institution to buy pizza and soda for your club.

It is true that most identity-groups won't really kick out people for not having that particular identity. The Asian group at NYU didn't mind that I stopped by and ate some of their take out Chinese food.

And, not many people who don't identify with the group are going to want to join in the first place. How many non-Jewish students join the Jewish Law Student Association? None. Because Kosher pizza is gross.

Posted by: BL1Y | Jun 30, 2010 10:46:54 AM

On a more serious note, Rick, isn't this case just another example on the penalty/subsidy distinction from unconstitutional conditions doctrine and more recently, found in the Establishment Clause case of Locke v. Davey: you have the right to free exercise of religion, but you have no right to have the government subsidize your free exercise of religion. Similar points have been made in other contexts as well as you know. What is interesting is that in cases like Rust, it is conservative Justices who have allied themselves with the "mere subsidization" argument, and liberal Justices (like Brenna) who have seen such arguments as really a penalty for exercising constitutional rights. Now in the free exercise context, the tables are turned, no?

Also, I understand you do not believe that Hastings had a real "all comers" policy, but didn't CLS and Hastings stipulate to that fact in this litigation? Justice Ginsburg spent a lot of time in her majority opinion explaining that such stipulations should be given binding effect under applicable precedent. Do you disagree that parties should not have to stick to their stipulations?

Finally, both parties conceded this was a limited public forum case, which means that viewpoint neutrality and the reasonableness of the school's decision were the operating standards. Given the stipulation that this was an all-comers policy, applied to everyone, isn't Hastings' stance view-point neutral and reasonable in that granting a special exemption to religious groups from the all-comers policy would have amounted to preferential treatment to a certain viewpoint?

Posted by: Paul M. Secunda | Jun 30, 2010 4:46:57 PM

I wonder how the schools that were involved in FAIR v. Rumsfeld (hope I got the name right, the military recruiting case) treat organizations that have identity requirements for membership.

On a different, but related note, while I was at NYU several of the students tried to create a Texas Student Organization. At NYU you can't have redundant groups because of funding issues (you don't want the same people getting funding twice for substantially the same group, or merely a subset of an existing group), and whoever makes these decisions ruled that Texas is covered by the Southern Connection, so they couldn't have their own group. The people from the South and Texas agreed, Texas is not in the South, Texas is in Texas, but alas, the argument didn't fly.

And finally, schools take a certain number of dollars from each student for organization funding. Why not let the students choose which group(s) they want their money to go to?

Posted by: BL1Y | Jun 30, 2010 8:44:19 PM

---- I’ve never met a CLS member or leader who desired “to exclude students of particular faiths.” -----

But, some group COULD under the weight of the principle stated here if that was required. What is the difference (and I'm not sure if "their faith" isn't being attacked here too) between some group excluding based on homosexual conduct (e.g., those whose "faith" might include the desire to show their love in a certain way) based on religious belief and those who honestly believe merely associating with a group based on beliefs alone is problematic?

This "imposing dissent" thing is pretty standard on campus, isn't it? The campus provides various resources with the general purpose of advancing discussion and mixture of various types of people, not to allow them to isolate themselves from people they disagree with. This can let's say include use of bulletin boards and meeting rooms.

Each group can have their own thing but to the degree they seek out campus benefits, certain strings can be provided. This underlines one problem with vouchers to religious schools.

FAIR might be different since the argument was that everyone WAS treated the same. One anti-discriminatory policy for all. As to Rust, that too is different, both as to the breadth of the thing deprived (the groups here still could practice in most respects; the resource was not as essential as subsidized health care is to poor people) and the selective nature it was in Rust (Brennan no longer on Court) -- only one specific procedure was targeted there.

Posted by: Joe | Jul 1, 2010 11:19:30 AM

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