Christopher Patti, an attorney with the University of California, emailed me to correct my brief post on yesterday's ruling in CLS v Southern Illinois. Here I am, the guy who always tells people not to rely on media reports about court rulings because they so often get them wrong, and what do I do? Exactly what I tell others not to do. He was kind enough to point me to the actual court ruling, which shows that my brief description of the case was inaccurate.
The case did not deal only with the question of whether universities had to recognize religious student groups, but whether they had to recognize student groups that violated the university's anti-discrimination policy. That is a minor, but legally important, difference. And as Christopher pointed out to me, this decision is at odds with a recent ruling from the 9th circuit involving the Hastings School of Law (Sandefur's alma mater, I believe), CLS v Kane. The facts of the two cases are virtually identical, both even involving chapters of the same national student group, the Christian Legal Society.
At issue in the SIU case was whether the Christian Legal Society chapter actually did violate any university rules. The university cited two rules that they believed the club violated. The first was a rule saying that student groups must comply with federal and state laws regarding discrimination and equal opportunity. But the court found that there was no federal or state law violated by the student group's policy of not allowing gays to be voting members. Second, they claimed that the club violated the school's EEO policy which forbid discrimination on the basis of sexual orientation. But the Court found that the CLS chapter discriminated only on the basis of conduct, not orientation. The ruling says:
In response to the law school's inquiry about its membership policies, CLS explained that it interprets its statement of faith to allow persons "who may have homosexual inclinations" to become members of CLS as long as they do not engage in or affirm homosexual conduct. The same is true of unmarried heterosexual persons: heterosexual persons who do not participate in or condone heterosexual conduct outside of marriage may become CLS members; those who engage in unmarried heterosexual conduct and do not repent that conduct and affirm the statement of faith may not. CLS's membership policies are thus based on belief and behavior rather than status, and no language in SIU's policy prohibits this.
There are other reasons we are skeptical that CLS violated SIU's Affirmative Action/EEO policy. First, CLS does not employ anyone. Second, it is not readily apparent (though certainly an argument could be made) that CLS should be considered an SIU "education opportunity" for purposes of applying the policy. On this latter point, the Affirmative Action/EEO policy by its terms applies to SIU, and there is no support in the record for the proposition that CLS is an extension of SIU. CLS is a private speaker, albeit one receiving (until it was derecognized) the public benefits associated with recognized student organization status. But subsidized student organizations at public universities are engaged in private speech, not spreading state-endorsed messages.
So far, so good. The second case, CLS v Kane, was a district court ruling. The judge granted the defendants' motion for summary judgment, reaching the opposite conclusion from the 7th circuit court in yesterday's ruling. The one difference here is that there was already a CLS chapter at the Hastings School of Law from 1994 through 2002, but their by-laws did not discriminate against gays. Furthermore, the by-laws pledged that the group would "comply with the Policies and Regulations Applying to College Activities, Organizations, and Students." In 2003 and 2004, the group's by-laws merely said that they welcomed any Hastings student to join.
But after 2004, they changed their by-laws to require that students who engaged in "unrepentant homosexual conduct" or who were of a different religion could not be voting members of the group. The school administration informed them that their by-laws were no longer in compliance with the school's anti-discrimination policies and they refused to give recognition to them as an official student group. It's interesting how this judge found an opposite issue, however:
The parties dispute whether Hastings' Nondiscrimination Policy regulates speech or conduct. The Nondiscrimination Policy prohibits discrimination on the basis of religion and sexual orientation, among other categories. (Joint Stip., ¶ 15.) Courts have consistently held that regulations prohibiting discrimination, similar to Hastings' Nondiscrimination Policy, regulate conduct, not speech...
As in Rumsfeld, the Court finds that the Nondiscrimination Policy regulates conduct, not speech because it affects what CLS must do if it wants to become a registered student organization - not engage in discrimination - not what CLS may or may not say regarding its beliefs on nonorthodox Christianity or homosexuality.
So while the 7th circuit court focused on the fact that the club's discrimination was on the basis of conduct rather than orientation, the 9th circuit court focused on the fact that the anti-discrimination rules regulated conduct, not speech, and therefore there is no first amendment claim in the case. But that is hardly the end of the discussion on that question. The court goes on to discuss the importance of equal educational opportunity in combatting discrimination, and cites cases like Grutter, but those cases dealt with equal access to education, not with equal access to student organizations. Clearly, there is a difference between a public university engaging in discrimination that denies equal educational opportunity, and a private student group at the university setting its own guidelines for membership.
There are other issues as well. Refusing to allow a religious organization to control its own membership effectively requires discriminating against them on the basis of their religious views. Is such discrimination not covered by the anti-discrimination laws itself? The courts have generally held that the answer is yes. At the very least, one must deal with the court's ruling in Rosenberger, which forbids universities to discriminate against student groups on the basis of their viewpoint, and with the full line of viewpoint discrimination cases (Mergens, Lamb's Chapel, Good News Club).
The court in Kane again tried to distinguish their case from the line of viewpoint discrimination cases by arguing that the school's policy only regulates conduct, not viewpoint. But this seems to me to be an artificial distinction. If the group's viewpoint requires adherence to a given religious viewpoint, as it clearly does, then what truly is the distinction between discriminating against their viewpoint and discriminating against their right to control their own membership on the basis of their viewpoint? This seems a distinction without a difference.
It will be interesting to see if these cases make their way to the Supreme Court. Clearly, there is a split between judicial districts on how to handle such cases. If it goes to the Supreme Court, I would expect the result from the 7th circuit to prevail. I think the Court would rule that such cases fall much closer to Rosenberger than to Roberts. I want to thank Christopher Patti for correcting my oversimplification of the issues in the case yesterday, and for providing the links to the rulings in both cases. When you go beyond what the media reports on such cases, you find a wealth of fascinating issues.
Oh, I should note that there is a very similar case involving the Sea Scouts where the California Supreme Court ruled in favor of the city of Berkeley that they could refuse a generally available benefit to that group because it engaged in discrimination on the basis of religion and sexual orientation. That case is being appealed to the Supreme Court currently. I'll be curious to see if the court grants cert in the case.
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