Today, the Supreme Court decided Hastings Christian Fellowship v. Martinez, ruling that the Christian Legal Society (CLS) at Hastings College of Law does not have the right to be a Recognized Student Organization (RSO) because it did not want to admit members who were not Christian or were gay, something at odds with CLS's interpretation of Christianity.
While I am deeply sympathetic to the sensibilities of the parties involved in the case, and realize that any outcome would be hurtful to one group or another, I'm not sympathetic to the Supreme Court's majority opinion in the case. In fact, the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years.
The reason is that the case hinges on the interpretation of forum status. In short, a forum is created when the government sets aside some property for some people (either the public at large or a subset thereof) to speak. For better or for worse, this is the standard that has been applied to funding for student groups on public campuses, even where the funding originates in student fees.
Given the use of forum status in this context, the Court's ruling basically amounted to an examination of the following question: does the First Amendment, and its attendant rights of free speech and free association, permit a college to require a group to admit members that offend its religious ideology as a condition of access to limited public forum resources?
The Court, upholding the Ninth Circuit's ruling, found that yes, a college can require groups to admit members despite the groups' rights to free speech and free association. In the course of doing so, it made some peculiar statements along the way--statements that could well come back to haunt those who would assert a constitutional right to access campus resources held open for students in general.
Own a computer, lose some rights
Astonishingly, the Court takes the position that the school should be given more deference to deny CLS access to limited public forum funds because the internet exists.
The Law School's policy is all the more creditworthy in view of the "substantial alternative channels that remain open for [CLS-student] communication to take place." [...]
In this case, Hastings offered CLS access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events. Although CLS could not take advantage of RSO-specific methods of communication[...], the advent of electronic media and social-networking sites reduces the importance of those channels.
Slip op. at 24 (citations and footnotes omitted). This is a fallacy of logic that most second-year law students are cautioned against making: you cannot avoid liability for the wrong you do by showing all the wrong you can't do.
Saying that you have a lesser right to speech as a law-school recognized organization because you have the right to be an independent organization is like saying students of a certain race don't have a right to use the lunch counter because they can go eat sandwiches in the street and lots of other places. The existence of places where rights aren't being violated can't be held up to defend the violation of rights occurring somewhere else.
As worrying as this standard is, it becomes even more worrying when you extrapolate the rule to other free expression cases. Under this rationale, if you have access to a computer, you give up a section of your First Amendment rights on government property, because, hey, you can go use your computer.
I can't believe this is what the Court intends, but it's what the Court said.
Survival is the same as speech
The majority draws an even more impermissible inference immediately thereafter in the opinion, where it asserts that the ability of the group to survive despite not receiving RSO status means that its rights were not meaningfully violated.
Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation. Based on the record before us, CLS was similarly situated: It hosted a variety of activities the year after Hastings denied it recognition, and the number of students attending those meetings and events doubled.
Slip op. at 25 (citation omitted). But whether the group grows or not has nothing to do with whether its rights were violated. Christianity grew in Rome even as Christians were being fed to the lions for sport; I would nevertheless assert that being devoured constituted a dramatic infringement on the civil rights of those ingested (and of the Christian community as a whole).
Similarly, the Court makes a grievous error of logic and law when it reasons that growing membership is evidence that the group was not harmed by denial of RSO status. That the school's limitations on recruiting failed to exterminate the group is not evidence of the validity of the restrictions any more than the survival of Falun Gong members despite China's persecution is evidence that China hasn't violated anyone's rights.
The hybrid speech/association test: it's alive!
In another passage, Ginsburg attempts to explain why, when the CLS has raised claims under both their right to speech in a limited public forum (where restrictions really only have to be reasonable) and its right to association (where restrictions face a strict level of scrutiny), the Court will only apply the speech test. Ginsburg engages in the following rhetorical contortion:
When these intertwined rights arise in exactly the same context, it would be anomalous for a restriction on speech to survive constitutional review under our limited-public-forum test only to be invalidated as an impermissible infringement of expressive association.
Slip op. at 14. Let me restate that in plain English: Ginsburg is saying that when your free speech concerns arise in the context of a free association claim, you're only entitled to the lighter speech analysis.
This is not a bad rationale, mostly because it is not a rationale at all--it is an assertion, divorced from any legal reasoning. I could just as easily, and with far more legal support, say that it makes no sense for a restriction that should be struck down for violating the right of association to be revived for being inoffensive to forum status.
Ginsburg resolves the tension by deciding that CLS is really asserting a hybrid speech/association right, and that a hybrid speech/association right need only pass the test for speech restrictions. In other words, unable to craft a rationale that could make this restriction possibly survive the test protecting the right of association, the majority essentially decides to make a hybrid right of speech/association--Frankenginsburg's Monster--that the restriction can satisfy.
The majority's work here is like a boxing promoter with a glass-jawed champion; when they don't like the constitutional opponent their reasoning has to face, they create a new opponent out of whole cloth. It just doesn't happen to be one that actually exists in American law.
That said, I'm sure Hastings' policy does pass the hybrid speech/association test. It should, since the standard was invented on the spot for the purpose of permitting Hastings' restriction to survive constitutional scrutiny.
Hard cases make bad law
I don't purport to know what the "best" outcome would be here--I don't know that the right of gay students to participate in a religious organization is any greater than the right of a religious organization to determine who it wants to admit. There's no way to decide this case without hurting someone.
What I do know is that it helps no one to assert that public colleges can limit the constitutional rights of students whenever they can rephrase their desire to exclude viewpoints as a desire to include individuals. A college with a different ideological basis could just as easily require all groups that discuss sexuality to include members that oppose alternative lifestyles, and the outcome would be just as counterproductive. And granting recognition of a religious student group that excludes alternative lifestyles would probably be followed by the creation of a religious student group that includes those lifestyles, and the groups would co-exist in the marketplace of ideas without forcing anyone to do anything.
But what happens with this case is less worrying than what the rationales in this opinion do to student expression rights as a whole. It seems that the Court views the First Amendment rights of citizens as inviolable, unless those citizens are students, in which case those rights can be diminished whenever there's a sufficiently palatable political agenda to force-feed them.
Students and prisoners are the only two groups with diminished First Amendment rights, and man, today, there's a lot of inmates thanking their lucky stars that they aren't in college.