June 28, 2010
Christian Legal Society v. Martinez Opinion Analysis: "All Comers Policy" for Student Groups Withstands First Amendment Challenge
In a 5-4 opinion today, the Court upheld the Hastings Law School's policy of non-recognition of the Christian legal Society (CLS) student group against a First Amendment challenge.
Writing for the Court, Justice Ginsburg framed the issue as: "May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?" This is the so-called "all-comers policy." The Court rejected the CLS contention that the policy was not actually an "all-comers" policy but one that targeted certain groups based on religion, noting that "CLS’s assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary judgment stage." (Opinion at 8). Ginsburg briefly discusses the importance of stipulated facts, and harshly criticized the dissent:
Time and again, the dissent races away from the facts to which CLS stipulated. See, e.g., post, at 2, 3, 5, 6, 7, 8, 11,24. [footnote omitted] But factual stipulations are “formal concessions . . . that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. [citation omitted].
Opinion at 11. As for CLS's argument that the all-comers policy was a pretext, the Court was again highly critical of the dissent's interpretation:
The dissent’s pretext discussion presents a one-sided summary of the record evidence, post, at 31–34, an account depending in large part on impugning the veracity of a distinguished legal scholar and a well respected school administrator, post, at 3, 5, 6, 7, 8, 9, 11, 24, 32, 34.
(Opinion at 32, n.29). However, Ginsburg did note that the Ninth Circuit might address the pretext argument on remand "if, and to the extent it is, preserved."
The Court concluded "that our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and association rights." In support, the Court noted that at issue is CLS's ability to access a state subsidy and that thus CLS "faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition." (Opinion at 15). The Court distinguished the precedents on which CLS was relying (such as Boy Scouts of America v. Dale) as forcing organizations to accept members.
Instead, Ginsburg applied limited public forum doctrine and stressed the "educational context" in which the situation arose. Additionally, Ginsburg noted that CLS had other avenues of expression: "Hastings offered CLS access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events," and although "CLS could not take advantage of" specific recognized student organization methods of communication, "the advent of electronic media and social-networking sites reduces the importance of those channels." (Opinion at 24).
Alito's dissenting opinion agrees that limited public forum doctrine applies, although doubts that the "all-comers" policy is view-point and content neutral. The dissent concludes with strong rhetoric:
I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country. Our First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open.” [citation omitted] Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.
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