Supreme Court To Hear All-Comers Policy Case

The U.S. Supreme Court hears arguments Monday in a major case testing whether state colleges and universities can deny official status and subsidies to student groups that bar homosexuals and other groups from membership. The case could affect public colleges and universities across the country, and it puts the court in the middle of a long struggle by Christian activists who contend that their rights are violated on campus by secular rules.

Hastings College of the Law in San Francisco has for 20 years had what it calls an all-comers policy. Any student group is entitled to official school recognition, as long as the group accepts all comers. Official recognition entitles the group to a small subsidy, preferred use of campus facilities, use of all campus bulletin boards and e-mails and use of the school logo.

A Change In Policy

The Christian Legal Society has long had a Hastings chapter that was recognized as a registered student organization, but in 2004, the group affiliated with the national Christian Legal Society and changed its policy to exclude from membership homosexuals and those who advocate or participate in pre-marital sex.

"When we did that, the director of student services said that the statement of faith in our bylaws violated their rules against discrimination on the basis of religion and sexual orientation," says Isaac Fong, a former chairman of the campus Christian Legal Society.

"In practice, this meant that CLS was rendered invisible on campus," Fong adds. "CLS was denied the ability to communicate with students or to have a physical presence on campus, and that caused the members of CLS to diminish to the point that there are only a few students left now."

The law school counters that the Christian Legal Society's membership actually doubled in the year after it was denied official status, that the group held meetings on campus, organized a lecture and held banquets.

Indeed, CLS did stipulate in court that the school does have an all-comers policy. So, the core of Monday's case is whether religious beliefs can trump a neutral school policy that applies equally to everyone. "All student groups are required to abide by our nondiscrimination policy," says law school Dean Leo Martinez. "And we are not forcing any particular group or any person to accept that as their belief. However, they're simply not entitled to state or public funding."

Martinez notes that state law bars the school from engaging in any discrimination based on sexual orientation or religion. That, and the school's educational mission, are the reasons the school adopted a policy that requires campus clubs to admit all comers, regardless of viewpoint.

Opposing View

But Stanford law professor Michael McConnell, representing the Christian Legal Society, says the CLS policy is not discriminatory.

"Not in the sense of being an invidiously discriminatory policy. There is absolutely nothing wrong with groups of Americans gathering together around shared beliefs," McConnell says. "It's OK for feminists to have a feminist club. It's OK for environmentalists to have an environmentalists club, and it's OK for Christians to have a Christian club. That isn't discrimination. It's freedom of association."

Representing Hastings, lawyer Gregory Garre counters that there's nothing that prevents a group from forming around shared beliefs and expressing those beliefs on campus. But if the group wants official recognition and funding, it has a choice.

"If they wish to discriminate in their membership and to deny access to certain students, they are free to do that as well, but they have to forego status as a school-recognized and school-funded group," Garre says. "What CLS is really seeking here is a special status," which is "funds and benefits that go along with being a school-funded and school-recognized group, with an exemption from the rules that apply to every other group."

McConnell disagrees. "It cannot be true that governmental units can deny whatever they classify as benefits, not matter how essential those benefits may be to the survival of an expressive association, on the basis of whatever they label discrimination," he says. "That would mean that tax-exempt status could be denied to Orthodox synagogues because they segregate men from women."

Subsidizing Groups

But Garre replies that this is not a case about churches and synagogues. It is a case about public universities, subsidized by the taxpayers and an educational mission. If openly discriminatory membership policies must be subsidized, he contends, that would apply to much more than just religious groups.

"We're talking about the environmental group who doesn't want to admit students because they may believe that global warming is a hoax. We're talking about the outdoor club who doesn't like to hike with members of the military reserve because they disagree with the war in Iraq. Under Hastings policy, these groups cannot exclude students on those bases," Garre says. "Groups are free to form around their own viewpoints and to have their own membership policies," he continues, "but when they choose to become a school recognized and school funded group, they have to comply with Hastings open membership rule."

And he, says, every other officially recognized group at Hastings has done that, including other religious groups.

A decision in the case is expected by summer.