Some of you may not have understood the ramifications of the Supreme Court’s CLS v. Martinez case, as I noted below. Here’s what David wrote on NRO. (Full disclosure: Most of you know David worked hard on this case, because he’s a senior counsel at the Alliance Defense Fund and the director of its Center for Academic Freedom. ADF was co-counsel for the Christian Legal Society).
The good: The Court’s ruling is remarkably narrow. One of the strange quirks of this case is that there were actually two university policies at issue at different times in the case. Initially, the Christian Legal Society was de-recognized because it allegedly violated the school’s nondiscrimination policy, which prohibited — among other things — discrimination on the basis of “religion” and “sexual orientation” (CLS required leaders and voting members to agree with the group’s statement of faith and refrain from extramarital sexual activity). During the course of the litigation, the university stated that its policy actually required student groups to accept “all comers.” In other words, student groups could not exclude students from membership or leadership for any reason. This kind of policy is exceedingly rare: At the time of the oral argument, we were aware of no other university with an “all comers” policy.
Despite what you might read in the mainstream media, the court did not rule that the “classic” nondiscrimination policy (which is in force in hundreds of universities) trumped the student group’s right to freedom of association. That issue was left unresolved. Instead, the Court ruled that the all-comers policy (which is in force virtually nowhere) was constitutional — but only if it had been applied equally to all groups on campus.
So CLS has not yet lost its case. Despite an unfavorable ruling on the all-comers policy, it can still prevail on remand if it proves that the university did not apply the policy to all student groups but instead specifically targeted CLS. We have powerful evidence that the university has, in fact, targeted CLS.
The bad: Despite the narrowness of the ruling, it’s still a bad opinion. By emphasizing the value of dissent within groups, the Court ignores the fundamental reality of an all-comers policy: Distinct student organizations exist at the whim of the majority. If “all comers” can join, then the majority can override the speech of any student group. Thus the true marketplace of ideas exists by the permission (or, more likely, apathy) of the majority. The potential for minority or disfavored groups at schools with an all-comers policy to self-censor to avoid controversy — and potential hostile takeovers — is high. As those who follow the twists and turns of free speech on campus know, attempted takeovers are hardly unheard of; just ask the Young Americans for Freedom at Central Michigan University.
The ugly: In many ways, this case is the bad fruit of a much earlier bad decision, Board of Regents of the University of Wisconsin v. Southworth. In Southworth, the Court ruled that it was constitutionally acceptable for a university to force students to pay a student-activity fee to fund student expression (even if they were forced to fund speech they disagreed with) so long as the fees were dispensed in a “viewpoint neutral” manner. Justice Ginsburg explicitly noted that under the all-comers policy, “No Hastings student is forced to fund a group that would reject her as a member.”
This forced-funding regime is unique to student organizations on our nation’s campuses. In virtually no other context are citizens directly forced to fund expression they may abhor. Such a requirement exerts a powerful distorting effect on university jurisprudence, has spawned significant additional litigation, and directly influenced the outcome of the Martinez case. At the same time, this distortion could very well confine the impact of this case to the vanishingly small slice of universities with policies similar to Hastings’s.
There’s no doubt that the decision is disappointing to those who cherish free speech and free association, but it is far more limited than it could have been. The conflict between free association and nondiscrimination endures, and it wouldn’t surprise me if we’ll eventually be back before the Supreme Court on that core issue.