Column: Supremes’ ruling threatens minorities

By Kim Colby

What’s at stake after CLS v. Martinez? Answer: Every student stands to lose her free speech rights if a university adopts an “all-comers policy”.

Here’s a thumbnail sketch of the facts in the case decided by the Supreme Court last week and sent back to the Ninth Circuit for further consideration. A law student group, Christian Legal Society (“CLS”), requires its leaders and voting members to agree with its faith statement (five very basic theological beliefs about God). CLS welcomes everyone to attend and participate in its meetings and activities, but to lead its Bible studies or vote on its policies, a student must agree with the faith statement. Hastings College of the Law deemed this “religious discrimination” and “sexual orientation discrimination” (because CLS expects its members to avoid sex outside of marriage) in violation of the College’s written nondiscrimination policy.

In the middle of the case, Hastings debuted an unwritten policy, known as the “all-comers” policy, which claimed to require every group to allow any student to be a leader regardless of whether the student’s beliefs agreed with the group’s beliefs. Hastings explained that the Democratic group could not exclude Republicans from leadership. And as Hastings’ acting dean explained in a PBS interview, an African American student group must admit Ku Klux Klan members.

The Supreme Court ruled on Monday. First, the good news: the sky is not falling for religious student groups on college campuses. The Supreme Court issued a narrow ruling, holding only that Hastings’ all-comers policy-announced by the school in the middle of litigation-was constitutional in theory. The Court declined to answer the question of whether the school’s written nondiscrimination policy was valid and remanded to the lower courts on the issues of whether the school, in practice, applied its unique all-comers policy evenhandedly to all student groups, and whether the school’s stated reasons for the policy were actually a pretext for discriminating against CLS.

However, even those who disagree with CLS’ beliefs should pause before cheering the Court’s decision. This is the bad news: all-comers policies restrict the freedom of association of all groups. An all-comers policy exposes every student group on campus to the risk of being undermined or even taken over by those who disagree with the group’s core beliefs or who just feel like hassling a group they don’t like. The environmentalist club must allow global warming skeptics to take charge of their group. The animal rights group must accept that its president wears fur coats and promotes animal-tested cosmetics.

What interest could possibly justify such a far-reaching restriction on the First Amendment? Is it the protection of minorities? On the contrary, all-comers policies undermine nondiscrimination policies’ protection of minority groups. According to Hastings’ acting dean, an African American student group must admit the KKK. And at oral argument, Hastings’ counsel admitted that Orthodox Jewish groups and Muslim groups could be pushed off campus for some of their practices. In fact, it is the small minority groups that stand to lose the most from all-comers policies, whether it’s conservatives in San Francisco or atheists in the Bible Belt.

Under the all-comers policy, everyone loses free speech rights. As the Supreme Court long ago recognized, universities are quintessentially the free marketplace of ideas and ought to foster vibrant, healthy campus debate among all viewpoints, including the Democrats and the Republicans, the Christians and the atheists.

Instead, the enforcement of the all-comers policy turns distinct flavors into thin gruel. Political groups are merged into a single debate society, and religious groups become one interfaith club. While there is nothing wrong with a debate society or an interfaith club, such groups should exist side-by-side with-and not instead of-organizations that advance their own unique viewpoints.

As Adam Goldstein, an attorney with the Student Press Law Center, noted on the Huffington Post, “the rationale of this opinion could end up doing more violence to student expression rights than any decision in the past 22 years.” The liberal wing of the Court accepted the argument that students’ First Amendment rights could be overridden because students could fall back on the internet when denied access to campus communication channels available to other students.

Equally troubling, the Court demoted college students back to grade school where school officials shield young minds from controversial ideas. The Court applied a 1980s case giving middle school principals control over student newspapers to empower UC officials to control law students’ speech.

Surely CLS, a tiny Christian club that dares to hold to traditional beliefs at a law school in San Francisco, is not so dangerous that CLS alone must be excluded from participation in campus debate at UC Hastings. Here is a better lesson: teach law students that if you disagree with a club’s beliefs, feel free to start you own. Add your voice to the conversation, but don’t let the government stifle someone else’s.

Read more here: http://www.dailycal.org/article/109772/supremes_ruling_threatens_minorities
Copyright 2024 Daily Californian