9th Circuit Takes CLS v. Martinez a Step Further

In 2010, the U.S. Supreme Court ruled that a state university law school did not violate the Constitution when it restricted official recognition of student organizations to those whose membership was open to all members of the student body without discrimination on any basis.  The Court said in Christian Legal Society v. Martinez (UC Hastings College of the Law), 130 S.Ct. 2971 (2010), that such a policy, assuming it was not itself applied in a discriminatory fashion, was viewpoint neutral and served legitimate pedagogical purposes.

Last week a three-judge panel of the 9th Circuit Court of Appeals confronted the question that the Supreme Court did not have to answer in CLS v. Martinez: whether a more narrowly-crafted and applied discrimination policy was also constitutional.  In Alpha Delta Chi-Delta Chapter v. Reed, 2011 Westlaw 3275950 (Aug. 2, 2011), the question was whether San Diego State University's refusal to grant official student organization status to two religious fraternities that restrict their membership to adherents of their religious faith would violate the constitution, when it was premised on a university policy that requires official student organizations not to discriminate on the basis of religion and a handful of other specified characteristics.  The court held that the university's action would be constitutional if it was applied without discriminating between different religious groups, and remanded the case for further factfinding on the actual application of the policy.

The fraternity and sorority in question require members to adhere to specific Christian beliefs.  The fraternity, Alpha Gamma Omega, requires officers to sign a Statement of Faith requiring consistency with "orthodox Christian beliefs."  The sorority requires "active participation in a Christian service" and "regular attendance or membership in an evangelical church."   Thus, both organizations have membership policies that would exclude a substantial portion of the student body on religious grounds.

Both sought recognition as on-campus student organizations, which would bring such benefits as university funding, use of the university's name and logo, access to campus office space and meeting rooms, free publicity in school publications, and participation in various events, like setting up informational tables and banners in the student union, taking part in student organization recruitment fairs, and having their leaders participate in various student governance bodies.  Both were turned down.

The university's published policy says that recognition only goes to organizations that do not discriminate in membership or officer qualifications based on "race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under federal law."

The fraternity and sorority asserted that denying them recognition violated their free exercise and freedom of association rights, as well as equal protection rights.  The university responded that a public university is not required to subsidize religious organizations, and that its non-discrimination policy is an appropriate policy for a limited public forum with a pedagogical purpose of promoting diversity and inclusion.

The court agreed that San Diego State, like Hastings Law School, provides a limited public forum for the operation of recognized student organizations.  Thus, the question for constitutional analysis is whether the university's policy is "reasonable in light of the purpose of the forum" and "viewpoint neutral."  The court concluded that both tests were met.

The court found that upholding San Diego State's policy was consistent with its past rulings in similar cases, not inconsistent with CLS v. Martinez, and reasonable in light of the intended purpose of the school to provide an inclusive limited public forum where members of the university community could participate.  The court found that at San Diego State, as at Hastings, the school's policy did not prevent the religious groups from forming and engaging in their desired activities.  They were not banned from any presence on campus.  Rather, they were not given the subsidies and special advantages that go with recognized organizational status.  A large factor looming in these types of cases today is the availability of the internet and social networking media.  Prior to these phenomena, it would have been more difficult for non-recognized student groups to publicize their existence and their activities, but today the limited exclusion from official channels of communication is really no big deal.  The Plaintiff organizations have the means to communicate their message and organize their activities without the benefits of official recognition.

The court also found the requirement of viewpoint neutrality to have been met, at least in light of the official published policy.  Requiring that organizations not discriminate in their membership and officers based on religion is viewpoint neutral in the sense that it does not favor one religion over another, or religious belief over non-belief.  Similarly as to the other categories, the requirements of non-discrimination are viewpoint neutral in that they do not favor one group over another. 

The plaintiffs pointed out that there are recognized student groups that place restrictions on membership.  For example, the San Diego Socialists require student members to be "in agreement with our purpose," and the Hispanic Business Student Association requires that members "support the goals and objectives of the organization."  But the court found that this argument could not carry the day, because although the policy might incidentally burden groups that wish to exclude others based on religion, there was no evidence that the school had implemented its discrimination policy "for the purpose of suppressing Plaintiffs' viewpoint, or indeed of restricting any sort of expression at all."  (One has to remember that in terms of constitutional analysis, one is concerned with intentional, not incidental, discrimination, as a result of several Supreme Court decisions narrowing the concept of unconstitutional discrimination.)

However, here is where the university's case was weakest, because it seems that there are some organizations that appear on their face to be in violation of the policy, yet are recognized.  The prime example is the Catholic Newman Center at San Diego State, a recognized student group that restricts its membership to "members, in good standing, of the Catholic Church."  An example of another sort of apparent violation of the policy is the African Student Drama Association, which limits leadership positions (but not membership) to African students.  Wrote the court, "the evidence that some student groups have been granted an exemption from the nondiscrimination policy raises a triable issue of fact."  If the university is applying the policy discriminatorily, allowing recognition of a group that restricts its membership to one particular religion but denying recognition to the Plaintiffs' organization because of their own religiously-based membership policies, it is possible that the policy will have to be struck down on equality grounds.  "We remand for consideration of the question whether San Diego State has (1) exempted certain student groups from the non-discrimination policy; and (2) declined to grant Plaintiffs such an exemption because of Plaintiffs' religious viewpoint."

Thus, it appears that a school may have a non-discrimination policy that includes religion without violating the constitution, provided that it is applied evenhandedly without discriminating among different religious groups, and that organizations that desire to discriminate in their membership or leadership requirements may be excluded from the benefits of official recognition at a state school, so long as the policy is consistently applied.

In light of the issues involved, it's not surprising to learn that plaintiffs were represented by the Alliance Defense Fund, with amicus participation by the conservative National Legal Foundation.  It's also not surprising to learn that the university's legal counsel enjoyed amicus support from the ACLU LGBT Rights Project and other ACLU local and state entities.

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