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Caleb Melby

Caleb Melby

Posted: July 12, 2010 02:17 PM

Court's Decision in CLS v. Hastings Threatens Free Speech on Campus

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Amidst all that hubbub about Elena Kagan and the Chicago hand-gun ban decision, one piece of Supreme Court news from the past couple weeks went virtually unnoticed. The Court ruled in a case involving a Christian student group and a California public school. And it's a ruling threatens the free speech and assembly rights of students in public institutions everywhere.

The case couldn't have been more politically charged. It highlighted the conflict between a conservative Christian organization and gay students, and it's easy to get lost in that hot mess and to ignore the larger problem at hand. In the end, the decision has little to do with the ongoing conflict between fundamentalists and progressives and has everything to do with the rights of students to organize around shared beliefs.

The Christian Legal Society at Hastings College of Law required its members to sign a statement of faith and disallowed individuals who engaged in "unrepentant homosexual conduct" from becoming members. As a result, Hastings refused to admit the Christian group into its registered student organization program. Becoming a member of the student group program would give the group access to university facilities and funds.

Hastings cited its Nondiscrimination Policy when it denied the legal society admittance. The school's administrators interpret this as an "accept all comers" policy, meaning that all groups must accept all students into their organizations. The legal society sued, and last week the liberal justices on the Supreme Court, accompanied by conservative-leaning swing-vote Justice Anthony Kennedy, upheld the decisions of lower courts and recognized Hastings' right to deny the legal society admittance into its registered student organization program.

The court defines Hastings' registered student organization program as a "limited public forum." This basically means a forum with a specific purpose - so speech taking place in that forum can be regulated to help achieve the forum's goal. Both Hastings and the legal society agree that the registered organization program is designed "to promote a diversity of viewpoints among registered student organizations, including viewpoints on religion and human sexuality." Justice Samuel Alito added that emphasis in his dissenting opinion - and it's worth repeating. Hastings agrees that the goal of the program is to ensure debate among groups, not within them.

Of course, the case is more complicated than that. Registered organizations are funded by mandatory student activities fees, which means if the Christian group were registered, a gay student would be required to subsidize a group that actively discriminates against him. There is also the issue of public funding for discrimination.

But that gay student can create a pride organization - which can engage in discussion with groups like the legal society, as is the point of the forum. And the school wouldn't be endorsing discrimination, it would only be recognizing that the legal society has a divergent viewpoint that would bring diversity of thought to that forum.

Hastings says that groups are allowed to espouse whatever ideas they want - provided they welcome all students to join. That is, a white supremacy group can gain registered status so long as it allows non-whites to become members - as if that meeting wouldn't be awkward.

Some may wonder why this case wasn't a moot point in light of Boy Scouts of America v. Dale, in which the Court ruled that the rejection of homosexual members was part of the Boy Scouts' right to expressive assembly. But the Scouts are a private organization. The legal society wants to participate in a limited public forum. Neither the Court nor Hastings said that the legal society has to admit gay members - it can decline membership to whomever it pleases so long as it is not a registered student group.

So the Christian Legal Society will presumably continue to exist. But at what cost? We Americans have historically prided ourselves on protecting the speech that we hate. This ruling directly subverts that value. As abhorrent as the legal society's views may be, no one wins when they are shut out of the conversation. And while this case involves a liberal school and a conservative organization, the decision makes it possible for the same thing to happen to liberal groups on conservative campuses - thereby homogenizing campus conversations everywhere.