ALITO, J., DISSENTING
CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,HASTINGS COLLEGE OF
LAW V. MARTINEZ
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-1371
CHRISTIAN LEGAL SOCIETY CHAPTER OF THE UNI- VERSITY
OF CALIFORNIA, HASTINGS COLLEGE OF THE LAW, aka HASTINGS CHRISTIAN
FELLOW- SHIP, PETITIONER
v. LEO P. MARTINEZ
et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 28, 2010]
Justice Alito, with whom The
Chief Justice, Justice Scalia, and Justice Thomas join,
dissenting.
The proudest boast of our free
speech jurisprudence is that we protect the freedom to express “the
thought that we hate.”
United States v.
Schwimmer,
279 U. S. 644, 654–655
(1929) (Holmes, J., dissenting). Today’s decision rests on a very
different principle: no freedom for expression that offends
prevailing standards of political correctness in our country’s
institutions of higher learning.
The Hastings College of the Law, a state
institution, permits student organizations to register with the law
school and severely burdens speech by unregistered groups. Hastings
currently has more than 60 registered groups and, in all its
history, has denied registration to exactly one: the Christian
Legal Society (CLS). CLS claims that Hastings refused to register
the group because the law school administration disapproves of the
group’s viewpoint and thus violated the group’s free speech
rights.
Rejecting this argument, the Court finds that
it has been Hastings’ policy for 20 years that all registered
organizations must admit
any student who wishes to join.
Deferring broadly to the law school’s judgment about the
permissible limits of student debate, the Court concludes that this
“accept-all-comers” policy,
ante, at 1, is both
viewpoint-neutral and consistent with Hastings’ proclaimed policy
of fostering a diversity of viewpoints among registered student
groups.
The Court’s treatment of this case is deeply
disappointing. The Court does not address the constitutionality of
the very different policy that Hastings invoked when it denied
CLS’s application for registration. Nor does the Court address the
constitutionality of the policy that Hastings now purports to
follow. And the Court ignores strong evidence that the
accept-all-comers policy is not viewpoint neutral because it was
announced as a pretext to justify viewpoint discrimination.
Brushing aside inconvenient precedent, the Court arms public
educational institutions with a handy weapon for suppressing the
speech of unpopular groups—groups to which, as Hastings candidly
puts it, these institutions “do not wish to … lend their name[s].”
Brief for Respondent Hastings College of Law 11; see also
id., at 35.
I
The Court provides a misleading
portrayal of this case. As related by the Court, (1) Hastings, for
the past 20 years, has required any student group seeking
registration to admit any student who wishes to join,
ante, at 5; (2) the effects of Hastings’ refusal to
register CLS have been of questionable importance, see
ante, at 24–25; and (3) this case is about CLS’s desire to
obtain “a state subsidy,”
ante, at 15. I begin by
correcting the picture.
A
The Court bases all of its
analysis on the proposition that the relevant Hastings’ policy is
the so-called accept-all-comers policy. This frees the Court from
the difficult task of defending the constitutionality of either the
policy that Hastings actually—and repeatedly—invoked when it denied
registration,
i.e., the school’s written Nondiscrimination
Policy, or the policy that Hastings belatedly unveiled when it
filed its brief in this Court. Overwhelming evidence, however,
shows that Hastings denied CLS’s application pursuant to the
Nondiscrimination Policy and that the accept-all-comers policy was
nowhere to be found until it was mentioned by a former dean in a
deposition taken well after this case began.
The events that gave rise to this
litigation began in 2004, when a small group of Hastings students
sought to register a Hastings chapter of CLS, a national
organization of Christian lawyers and law students. All CLS members
must sign a Statement of Faith affirming belief in fundamental
Christian doctrines, including the belief that the Bible is “the
inspired Word of God.” App. 226. In early 2004, the national
organization adopted a resolution stating that “[i]n view of the
clear dictates of Scripture, unrepentant participation in or
advocacy of a sexually immoral lifestyle is inconsistent with an
affirmation of the Statement of Faith, and consequently may be
regarded by CLS as disqualifying such an individual from CLS
membership.”
Id., at 146. The resolution made it clear
that “a sexually immoral lifestyle,” in CLS’s view, includes
engaging in “acts of sexual conduct outside of God’s design for
marriage between one man and one woman.”
Ibid. It was
shortly after this resolution was passed that the Hastings chapter
of CLS applied to register with the law school.
Hastings sponsors an active program of
“registered student organizations” (RSOs) pursuant to the law
school’s avowed responsibility to “ensure an opportunity for the
expression of a variety of viewpoints” and promote “the highest
standards of . . . freedom of expression,” App. to Pet. for Cert.
82a, 74a. During the 2004–2005 school year, Hastings had more than
60 registered groups, including political groups (
e.g.,
the Hastings Democratic Caucus and the Hastings Republicans),
religious groups (
e.g., the Hastings Jewish Law Students
Association and the Hastings Association of Muslim Law Students),
groups that promote social causes (
e.g., both pro-choice
and pro-life groups), groups organized around racial or ethnic
identity (
e.g., the Black Law Students Association, the
Korean American Law Society, La Raza Law Students Association, and
the Middle Eastern Law Students Association), and groups that focus
on gender or sexuality (
e.g., the Clara Foltz Feminist
Association and Students Raising Consciousness at Hastings). See
App. 236–245; Brief for Petitioner 3–4.
Not surprisingly many of these registered
groups were and are dedicated to expressing a message. For example,
Silenced Right, a pro-life group, taught that “all human life from
the moment of conception until natural death is sacred and has
inherent dignity,”
id., at 244, while Law Students for
Choice aimed to “defend and expand reproductive rights,”
id., at 243. The American Constitution Society sought “to
counter . . . a narrow conservative vision” of American law,”
id., at 236, and the UC Hastings Student Animal Defense
Fund aimed “at protecting the lives and advancing the interests of
animals through the legal system,”
id., at 245.
Groups that are granted registration are
entitled to meet on university grounds and to access multiple
channels for communicating with students and faculty—including
posting messages on designated bulletin boards, sending mass
e-mails to the student body, distributing material through the
Student Information Center, and participating in the annual student
organizations fair. App. to Pet. for Cert. 7a, 85a. They may also
apply for limited travel funds,
id., at 7a, which appear
to total about $4,000 to $5,000 per year, App. 217—or less than $85
per registered group. Most of the funds available to RSOs come from
an annual student activity fee that every student must pay. See
App. to Pet. for Cert. 89a–93a.
When CLS applied for registration, Judy Hansen
Chapman, the Director of Hastings’ Office of Student Services, sent
an e-mail to an officer of the chapter informing him that “CLS’s
bylaws did not appear to be compliant” with the Hastings
Nondiscrimination Policy, App. 228, 277, a written policy that
provides in pertinent part that “[t]he University of California,
Hastings College of the Law shall not discriminate unlawfully on
the basis of race, color, religion, national origin, ancestry,
disability, age, sex or sexual orientation,”
id., at 220.
As far as the record reflects, Ms. Chapman made no mention of an
accept-all-applicants policy.
A few days later, three officers of the
chapter met with Ms. Chapman, and she reiterated that the CLS
bylaws did not comply with “the religion and sexual orientation
provisions of the Nondiscrimination Policy and that they would need
to be amended in order for CLS to become a registered student
organization.”
Id., at 228. About a week later, Hastings
sent CLS a letter to the same effect.
Id., at 228–229,
293–295. On both of these occasions, it appears that not a word was
said about an accept-all-comers policy.
When CLS refused to change its membership
requirements, Hastings denied its request for registration—thus
making CLS the only student group whose application for
registration has ever been rejected. Brief in Opposition 4.
In October 2004, CLS brought this action under
42 U. S. C. §1983 against the law school’s dean and other
school officials, claiming, among other things, that the law
school, by enacting and enforcing the Nondiscrimination Policy, had
violated CLS’s First Amendment right to freedom of speech. App.
78.
In May 2005, Hastings filed an answer to CLS’s
first amended complaint and made an admission that is significant
for present purposes. In its complaint, CLS had alleged that the
Nondiscrimination Policy discriminates against religious groups
because it prohibits those groups “from selecting officers and
members dedicated to a particular set of religious ideals or
beliefs” but “permits political, social and cultural student
organizations to select officers and members dedicated to their
organization’s ideals and beliefs.”
Id., at 79. In
response, Hastings admitted that its Nondiscrimination Policy
“permits political, social, and cultural student organizations to
select officers and members who are dedicated to a particular set
of ideals or beliefs.”
Id., at 93. The Court states that
“Hastings interprets the Nondiscrimination Policy, as it relates to
the RSO program, to mandate acceptance of all comers.”
Ante, at 4. But this admission in Hastings’ answer shows
that Hastings had not adopted this interpretation when its answer
was filed.
Within a few months, however, Hastings’
position changed. In July 2005, Mary Kay Kane, then the dean of the
law school, was deposed, and she stated: “It is my view that in
order to be a registered student organization you have to allow all
of our students to be members and full participants if they want
to.” App. 343. In a declaration filed in October 2005, Ms. Chapman
provided a more developed explanation, stating: “Hastings
interprets the Nondiscrimination Policy as requiring that student
organizations wishing to register with Hastings allow any Hastings
student to become a member and/or seek a leadership position in the
organization.”
Id., at 349.
Hastings claims that this accept-all-comers
policy has existed since 1990 but points to no evidence that the
policy was ever put in writing or brought to the attention of
members of the law school community prior to the dean’s deposition.
Indeed, Hastings has adduced no evidence of the policy’s existence
before that date. And while Dean Kane and Ms. Chapman stated, well
after this litigation had begun, that Hastings had such a policy,
neither they nor any other Hastings official has ever stated in a
deposition, affidavit, or declaration when this policy took
effect.
Hastings’ effort to portray the
accept-all-comers policy as merely an interpretation of the
Nondiscrimination Policy runs into obvious difficulties. First, the
two policies are simply not the same: The Nondiscrimination Policy
proscribes discrimination on a limited number of specified grounds,
while the accept-all-comers policy outlaws all selectivity. Second,
the Nondiscrimination Policy applies to everything that Hastings
does, and the law school does not follow an accept-all-comers
policy in activities such as admitting students and hiring
faculty.
In an effort to circumvent this problem, the
Court writes that “Hastings interprets the Nondiscrimination
Policy,
as it relates to the RSO program, to mandate
acceptance of all comers.”
Ante, at 4 (emphasis added).
This puts Hastings in the implausible position of maintaining that
the Nondiscrimination Policy means one thing as applied to the RSO
program and something quite different as applied to all of
Hastings’ other activities. But the Nondiscrimination Policy by its
terms applies fully to all components of the law school, “including
administration [and] faculty.” App. 220.
Third, the record is replete with evidence
that, at least until Dean Kane unveiled the accept-all-comers
policy in July 2005, Hastings routinely registered student groups
with bylaws limiting membership and leadership positions to those
who agreed with the groups’ viewpoints. For example, the bylaws of
the Hastings Democratic Caucus provided that “any full-time student
at Hastings may become a member of HDC
so long as they do not
exhibit a consistent disregard and lack of respect for the
objective of the organization as stated in Article 3, Section
1.” App. to Pet. for Cert. 118a (emphasis added). The constitution
of the Association of Trial Lawyers of America at Hastings provided
that every member must “adhere to the objectives of the Student
Chapter as well as the mission of ATLA.”
Id., at 110a. A
student could become a member of the Vietnamese American Law
Society so long as the student did not “exhibit a consistent
disregard and lack of respect for the objective of the
organization,” which centers on a “celebrat[ion] [of] Vietnamese
culture.”
Id., at 146a–147a. Silenced Right limited voting
membership to students who “are committed” to the group’s “mission”
of “spread[ing] the pro-life message.”
Id., at 142a–143a.
La Raza limited voting membership to “students of Raza background.”
App. 192. Since Hastings requires any student group applying for
registration to submit a copy of its bylaws, see
id., at
249–250, Hastings cannot claim that it was unaware of such
provisions. And as noted, CLS was denied registration precisely
because Ms. Chapman reviewed its bylaws and found them
unacceptable.
We are told that, when CLS pointed out these
discrepancies during this litigation, Hastings took action to
ensure that student groups were in fact complying with the law
school’s newly disclosed accept-all-comers policy. For example,
Hastings asked La Raza to revise its bylaws to allow all students
to become voting members. App. to Pet. for Cert. 66a. See also
Brief for State of Michigan et al. as
Amici Curiae 2,
n. 1 (relating anecdotally that Hastings recently notified the
Hastings Democrats that “to maintain the Club’s standing as a
student organization,” it must “open its membership to all
students, regardless of party affiliation”). These belated remedial
efforts suggest, if anything, that Hastings had no
accept-all-comers policy until this litigation was well under
way.
Finally, when Hastings filed its brief in this
Court, its policy, which had already evolved from a policy
prohibiting certain specified forms of discrimination into an
accept-all-comers policy, underwent yet another transformation.
Now, Hastings claims that it does not really have an
accept-all-comers policy; it has an accept-
some-comers
policy. Hastings’ current policy, we are told, “does not foreclose
neutral and generally applicable membership requirements unrelated
to ‘status or beliefs.’ ” Brief for Respondent Hastings
College of Law 5. Hastings’ brief goes on to note with seeming
approval that some registered groups have imposed “even conduct
requirements.”
Ibid. Hastings, however, has not told us
which “conduct requirements” are allowed and which are not—although
presumably requirements regarding sexual conduct fall into the
latter category.
When this case was in the District Court, that
court took care to address both the Nondiscrimination Policy and
the accept-all-comers policy. See,
e.g., App. to Pet. for
Cert. 8a–9a, 16a–17a, 21a–24a, 26a, 27a, 32a, 44a, 63a. On appeal,
however, a panel of the Ninth Circuit, like the Court today,
totally ignored the Nondiscrimination Policy. CLS’s argument in the
Ninth Circuit centered on the Nondiscrimination Policy, and CLS
argued strenuously, as it had in the District Court, that prior to
the former dean’s deposition, numerous groups had been permitted to
restrict membership to students who shared the groups’
views.[
Footnote 1]
Nevertheless, the Ninth Circuit disposed of CLS’s appeal with a
two-sentence, not-precedential opinion that solely addressed the
accept-all-comers policy.
Christian Legal Soc. Chapter of Univ.
of Cal. v.
Kane, 319 Fed. Appx. 645–646 (2009).
Like the majority of this Court, the Ninth
Circuit relied on the following Joint Stipulation, which the
parties filed in December 2005, well after Dean Kane’s
deposition:
“Hastings requires that registered student
organizations allow any student to participate, become a member, or
seek leadership positions in the organization, regardless of their
status or beliefs.” App. 221.
Citing the binding effect of stipulations, the
majority sternly rejects what it terms “CLS’s unseemly attempt to
escape from the stipulation and shift its target to [the
Nondiscrimination Policy].”
Ante, at 11–12.
I agree that the parties must be held to their
Joint Stipulation, but the terms of the stipulation should be
respected. What was admitted in the Joint Stipulation filed in
December 2005 is that Hastings had an accept-all-comers policy. CLS
did not stipulate that its application had been denied more than a
year earlier pursuant to such a policy. On the contrary, the Joint
Stipulation notes that the reason repeatedly given by Hasting at
that time was that the CLS bylaws did not comply with
the
Nondiscrimination Policy. See App. 228–229. Indeed, the
parties did not even stipulate that the accept-all-comers policy
existed in the fall of 2004. In addition, Hastings itself is now
attempting to walk away from this stipulation by disclosing that
its real policy is an accept-some-comers policy.
The majority’s insistence on the binding
effect of stipulations contrasts sharply with its failure to
recognize the binding effect of a party’s admissions in an answer.
See
American Title Insurance Co. v.
Lacelaw
Corp., 861 F. 2d 224, 226 (CA9 1988) (“Factual assertions
in pleadings and pretrial orders, unless amended, are considered
judicial admissions conclusively binding on the party who made
them”);
Bakersfield Westar Ambulance, Inc. v.
Community First Bank, 123 F. 3d 1243, 1248 (CA9 1997)
(quoting
Lacelaw,
supra). As noted above,
Hastings admitted in its answer, which was filed prior to the
former dean’s deposition, that at least as of that time, the law
school did not follow an accept-all-comers policy and instead
allowed “political, social, and cultural student organizations to
select officers and members who are dedicated to a particular set
of ideals or beliefs.” App. 93.
B
The Court also distorts the
record with respect to the effect on CLS of Hastings’ decision to
deny registration. The Court quotes a letter written by Hastings’
general counsel in which she stated that Hastings “ ‘would be
pleased to provide [CLS] the use of Hastings facilities for its
meetings and activities.’ ”
Ante, at 6 (quoting App.
294). Later in its opinion, the Court reiterates that “Hastings
offered CLS access to school facilities to conduct meetings,”
ante, at 24, but the majority does not mention that this
offer was subject to important qualifications. As Hastings’
attorney put it in the District Court, Hastings told CLS:
“ ‘Hastings allows community groups to some degree to use its
facilities, sometimes on a pay basis, I understand, if they’re
available after priority is given to registered organizations’. We
offered that.” App. 442.
The Court also fails to mention
what happened when CLS attempted to take advantage of Hastings’
offer. On August 19, 2005, the local CLS president sent an e-mail
to Ms. Chapman requesting permission to set up an “advice table” on
a campus patio on August 23 and 24 so that members of CLS could
speak with students at the beginning of the fall semester.
Id., at 298. This request—merely to set up a table on a
patio—could hardly have interfered with any other use of the law
school’s premises or cost the school any money. But although the
request was labeled “time sensitive,”
ibid., Ms. Chapman
did not respond until the dates in question had passed, and she
then advised the student that all further inquiries should be made
through CLS’s attorney.
Id., at 297–298.
In September 2005, CLS tried again. Through
counsel, CLS sought to reserve a room on campus for a guest speaker
who was scheduled to appear on a specified date.
Id., at
302–303. Noting Ms. Chapman’s tardy response on the prior occasion,
the attorney asked to receive a response before the scheduled date,
but once again no answer was given until after the date had passed.
Id., at 300.
Other statements in the majority opinion make
it seem as if the denial of registration did not hurt CLS at all.
The Court notes that CLS was able to hold Bible-study meetings and
other events.
Ante, at 6. And “[a]lthough CLS could not
take advantage of RSO-specific methods of communication,” the Court
states, “the advent of electronic media and social-networking sites
reduces the importance of those channels.”
Ante, at
24.
At the beginning of the 2005 school year, the
Hastings CLS group had seven members, App. to Pet. for Cert. 13a,
so there can be no suggestion that the group flourished. And since
one of CLS’s principal claims is that it was subjected to
discrimination based on its viewpoint, the majority’s emphasis on
CLS’s ability to endure that discrimination—by using private
facilities and means of communication—is quite amazing.
This Court does not customarily brush aside a
claim of unlawful discrimination with the observation that the
effects of the discrimination were really not so bad. We have never
before taken the view that a little viewpoint discrimination is
acceptable. Nor have we taken this approach in other discrimination
cases.
C
Finally, I must comment on the
majority’s emphasis on funding. According to the majority, CLS is
“seeking what is effectively a state subsidy,”
ante, at
15, and the question presented in this case centers on the “use of
school funds,”
ante, at 1. In fact, funding plays a very
small role in this case. Most of what CLS sought and was
denied—such as permission to set up a table on the law school
patio—would have been virtually cost free. If every such activity
is regarded as a matter of funding, the First Amendment rights of
students at public universities will be at the mercy of the
administration. As CLS notes, “[t]o university students, the campus
is their world. The right to meet on campus and use campus channels
of communication is at least as important to university students as
the right to gather on the town square and use local communication
forums is to the citizen.” Reply Brief for Petitioner 13.
II
To appreciate how far the Court
has strayed, it is instructive to compare this case with
Healy v.
James,
408 U. S. 169 (1972),
our only First Amendment precedent involving a public college’s
refusal to recognize a student group. The group in
Healy
was a local chapter of the Students for a Democratic Society (SDS).
When the students who applied for recognition of the chapter were
asked by a college committee whether they would “ ‘respond to
issues of violence as other S.D.S. chapters have,’ ” their
answer was that their “ ‘action would have to be dependent
upon each issue.’ ”
Id., at 172–173. They similarly
refused to provide a definitive answer when asked whether they
would be willing to “use any means possible” to achieve their aims.
Id., at 173. The president of the college refused to allow
the group to be recognized, concluding that the philosophy of the
SDS was “antithetical to the school’s policies” and that it was
doubtful that the local chapter was independent of the national
organization, the “ ‘published aims and philosophy’ ” of
which included “ ‘disruption and violence.’ ”
Id., at 174–175, and n. 4.
The effects of nonrecognition in
Healy were largely the same as those present here. The SDS
was denied the use of campus facilities, as well as access to the
customary means used for communication among the members of the
college community.
Id., at 176, 181–182.
The lower federal courts held that the First
Amendment rights of the SDS chapter had not been violated, and when
the case reached this Court, the college, much like today’s
majority, sought to minimize the effects of nonrecognition, arguing
that the SDS members “still may meet as a group off campus, that
they still may distribute written material off campus, and that
they still may meet together informally on campus … as
individuals.”
Id., at 182–183.
This Court took a different view. The Court
held that the denial of recognition substantially burdened the
students’ right to freedom of association. After observing that
“[t]he primary impediment to free association flowing from
nonrecognition is the denial of use of campus facilities for
meetings and other appropriate purposes,”
id., at 181, the
Court continued:
“Petitioners’ associational
interests also were circumscribed by the denial of the use of
campus bulletin boards and the school newspaper. If an organization
is to remain a viable entity in a campus community in which new
students enter on a regular basis, it must possess the means of
communicating with these students. Moreover, the organization’s
ability to participate in the intellectual give and take of campus
debate, and to pursue its stated purposes, is limited by denial of
access to the customary media for communicating with the
administration, faculty members, and other students. Such
impediments cannot be viewed as insubstantial.”
Id., at
181–182.
It is striking that all of these
same burdens are now borne by CLS. CLS is prevented from using
campus facilities—unless at some future time Hastings chooses to
provide a timely response to a CLS request and allow the group, as
a favor or perhaps in exchange for a fee, to set up a table on the
patio or to use a room that would otherwise be unoccupied. And CLS,
like the SDS in
Healy, has been cut off from “the
customary media for communicating with the administration, faculty
members, and other students.”
Id., at 181–182.
It is also telling that the
Healy
Court, unlike today’s majority, refused to defer to the college
president’s judgment regarding the compatibility of “sound
educational policy” and free speech rights. The same deference
arguments that the majority now accepts were made in defense of the
college president’s decision to deny recognition in
Healy.
Respondents in that case emphasized that the college president, not
the courts, had the responsibility of administering the institution
and that the courts should allow him “ ‘wide discretion … in
determining what actions are most compatible with its educational
objectives.’ ” Brief for Respondents in
Healy v.
James, O. T. 1971, No. 71–452, pp. 7–8. A supporting
amicus contended that college officials “must be allowed a
very broad discretion in formulating and implementing policies.”
Brief for Board of Trustees, California State Colleges 6. Another
argued that universities should be permitted to impose restrictions
on speech that would not be tolerated elsewhere. Brief for American
Association of Presidents of Independent Colleges and Universities
11–12.
The
Healy Court would have none of
this. Unlike the Court today, the
Healy Court emphatically
rejected the proposition that “First Amendment protections should
apply with less force on college campuses than in the community at
large.” 408 U. S., at 180. And on one key question after
another—whether the local SDS chapter was independent of the
national organization, whether the group posed a substantial threat
of material disruption, and whether the students’ responses to the
committee’s questions about violence and disruption signified a
willingness to engage in such activities—the Court drew its own
conclusions, which differed from the college president’s.
The
Healy Court was true to the
principle that when it comes to the interpretation and application
of the right to free speech, we exercise our own independent
judgment. We do not defer to Congress on such matters, see
Sable Communications of Cal., Inc. v.
FCC,
492 U. S. 115,
129 (1989), and there is no reason why we should bow to university
administrators.
In the end, I see only two possible
distinctions between
Healy and the present case. The first
is that
Healy did not involve any funding, but as I have
noted, funding plays only a small part in this case. And if
Healy would otherwise prevent Hastings from refusing to
register CLS, I see no good reason why the potential availability
of funding should enable Hastings to deny all of the other rights
that go with registration.
This leaves just one way of distinguishing
Healy: the identity of the student group. In
Healy, the Court warned that the college president’s views
regarding the philosophy of the SDS could not “justify the denial
of First Amendment rights.” 408 U. S., at 187. Here, too,
disapproval of CLS cannot justify Hastings’ actions.[
Footnote 2]
III
The Court pays little attention
to
Healy and instead focuses solely on the question
whether Hastings’ registration policy represents a permissible
regulation in a limited public forum. While I think that
Healy is largely controlling, I am content to address the
constitutionality of Hastings’ actions under our limited public
forum cases, which lead to exactly the same conclusion.
In this case, the forum consists
of the RSO program. Once a public university opens a limited public
forum, it “must respect the lawful boundaries it has itself set.”
Rosenberger v.
Rector and Visitors of Univ. of
Va.,
515 U. S.
819, 829 (1995). The university “may not exclude speech where
its distinction is not ‘reasonable in light of the purpose served
by the forum.’ ”
Ibid. (quoting
Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc.,
473 U. S. 788, 806
(1985)). And the university must maintain strict viewpoint
neutrality.
Board of Regents of Univ. of Wis. System v.
Southworth,
529 U. S. 217, 234 (2000);
Rosenberger,
supra, at 829.
This requirement of viewpoint neutrality
extends to the expression of religious viewpoints. In an unbroken
line of decisions analyzing private religious speech in limited
public forums, we have made it perfectly clear that “[r]eligion is
[a] viewpoint from which ideas are conveyed.”
Good News
Club v.
Milford Central School,
533 U. S. 98, 112, and n.
4 (2001). See
Rosenberger,
supra, at 831;
Lamb’s Chapel v.
Center Moriches Union Free School
Dist.,
508 U.
S. 384, 393–394 (1993);
Widmar v.
Vincent,
454 U. S. 263,
277 (1981).
We have applied this analysis in cases in
which student speech was restricted because of the speaker’s
religious viewpoint, and we have consistently concluded that such
restrictions constitute viewpoint discrimination.
E.g.,
Rosenberger,
supra, at 845–846;
Widmar,
supra, at 267, n. 5, 269, 277; see also
Good News
Club,
supra, at 106–107, 109–110;
Lamb’s
Chapel,
supra, at 392–393, 394. We have also stressed
that the rules applicable in a limited public forum are
particularly important in the university setting, where “the State
acts against a background of tradition of thought and experiment
that is at the center of our intellectual and philosophic
tradition.”
Rosenberger,
supra, at 835.
IV
Analyzed under this framework,
Hastings’ refusal to register CLS pursuant to its Nondiscrimination
Policy plainly fails.[
Footnote
3] As previously noted, when Hastings refused to register CLS,
it claimed that the CLS bylaws impermissibly discriminated on the
basis of religion and sexual orientation. As interpreted by
Hastings and applied to CLS, both of these grounds constituted
viewpoint discrimination.
Religion. The First
Amendment protects the right of “ ‘expressive
association’ ”—that is, “the right to associate for the
purpose of speaking.”
Rumsfeld v.
Forum for Academic
and Institutional Rights, Inc.,
547 U. S. 47, 68 (2006)
(quoting
Boy Scouts of America v.
Dale,
530 U. S. 640, 644
(2000)). And the Court has recognized that “[t]he forced inclusion
of an unwanted person in a group infringes the group’s freedom of
expressive association if the presence of that person affects in a
significant way the group’s ability to advocate public or private
viewpoints.”
Dale,
supra, at 648.
With one important exception, the Hastings
Nondiscrimination Policy respected that right. As Hastings stated
in its answer, the Nondiscrimination Policy “permit[ted] political,
social, and cultural student organizations to select officers and
members who are dedicated to a particular set of ideals or
beliefs.” App. 93. But the policy singled out one category of
expressive associations for disfavored treatment: groups formed to
express a religious message. Only religious groups were required to
admit students who did not share their views. An environmentalist
group was not required to admit students who rejected global
warming. An animal rights group was not obligated to accept
students who supported the use of animals to test cosmetics. But
CLS was required to admit avowed atheists. This was patent
viewpoint discrimination. “By the very terms of the
[Nondiscrimination Policy], the University … select[ed] for
disfavored treatment those student [groups] with religious …
viewpoints.”
Rosenberger, 515 U. S., at 831. It is no
wonder that the Court makes no attempt to defend the
constitutionality of the Nondiscrimination Policy.
Unlike the Court, Justice Stevens attempts a
defense, contending that the Nondiscrimination Policy is viewpoint
neutral. But his arguments are squarely contrary to established
precedent.
Justice Stevens first argues that the
Nondiscrimination Policy is viewpoint neutral because it “does not
regulate expression or belief at all” but instead regulates
conduct. See
ante, at 2 (concurring opinion). This Court
has held, however, that the particular conduct at issue here
constitutes a form of expression that is protected by the First
Amendment. It is now well established that the First Amendment
shields the right of a group to engage in expressive association by
limiting membership to persons whose admission does not
significantly interfere with the group’s ability to convey its
views. See
Dale,
supra, at 648;
Roberts
v.
United States Jaycees,
468 U. S. 609, 623
(1984); see also
New York State Club Assn., Inc. v.
City of New York,
487 U. S. 1, 13 (1988)
(acknowledging that an “association might be able to show that it
is organized for specific expressive purposes and that it will not
be able to advocate its desired viewpoints nearly as effectively if
it cannot confine its membership to those who share the same sex,
for example, or the same religion”);
Widmar,
supra, at 268–269 (“[T]he First Amendment rights of speech
and association extend to the campuses of state universities”).
Indeed, the opinion of the Court, which Justice Stevens joins,
acknowledges this rule. See
ante, at 13.
Justice Stevens also maintains that the
Nondiscrimination Policy is viewpoint neutral because it prohibits
all groups, both religious and secular, from engaging in religious
speech. See
ante, at 3. This argument is also contrary to
established law. In
Rosenberger, the dissent, which
Justice Stevens joined, made exactly this argument. See 515 U. S.,
at 895–896 (opinion of Souter, J.). The Court disagreed, holding
that a policy that treated secular speech more favorably than
religious speech discriminated on the basis of viewpoint.[
Footnote 4] 515 U. S., at 831. The
Court reaffirmed this holding in
Good News Club, 533 U.
S., at 112, and n. 4.
Here, the Nondiscrimination Policy permitted
membership requirements that expressed a secular viewpoint. See
App. 93. (For example, the Hastings Democratic Caucus and the
Hastings Republicans were allowed to exclude members who disagreed
with their parties’ platforms.) But religious groups were not
permitted to express a religious viewpoint by limiting membership
to students who shared their religious viewpoints. Under
established precedent, this was viewpoint discrimination.[
Footnote 5]
It bears emphasis that permitting religious
groups to limit membership to those who share the groups’ beliefs
would not have the effect of allowing other groups to discriminate
on the basis of religion. It would not mean, for example, that
fraternities or sororities could exclude students on that basis. As
our cases have recognized, the right of expressive association
permits a group to exclude an applicant for membership only if the
admission of that person would “affec[t] in a significant way the
group’s ability to advocate public or private viewpoints.”
Dale, 530 U. S., at 648. Groups that do not engage in
expressive association have no such right. Similarly, groups that
are dedicated to expressing a viewpoint on a secular topic (for
example, a political or ideological viewpoint) would have no basis
for limiting membership based on religion because the presence of
members with diverse religious beliefs would have no effect on the
group’s ability to express its views. But for religious groups, the
situation is very different. This point was put well by a coalition
of Muslim, Christian, Jewish, and Sikh groups: “Of course there is
a strong interest in prohibiting religious discrimination where
religion is irrelevant. But it is fundamentally confused to apply a
rule against religious discrimination to a religious association.”
Brief for American Islamic Congress et al. as
Amici
Curiae 3.
Sexual orientation. The Hastings
Nondiscrimination Policy, as interpreted by the law school, also
discriminated on the basis of viewpoint regarding sexual morality.
CLS has a particular viewpoint on this subject, namely, that sexual
conduct outside marriage between a man and a woman is wrongful.
Hastings would not allow CLS to express this viewpoint by limiting
membership to persons willing to express a sincere agreement with
CLS’s views. By contrast, nothing in the Nondiscrimination Policy
prohibited a group from expressing a contrary viewpoint by limiting
membership to persons willing to endorse that group’s beliefs. A
Free Love Club could require members to affirm that they reject the
traditional view of sexual morality to which CLS adheres. It is
hard to see how this can be viewed as anything other than viewpoint
discrimination.
V
Hastings’ current policy, as
announced for the first time in the brief filed in this Court,
fares no better than the policy that the law school invoked when
CLS’s application was denied. According to Hastings’ brief, its new
policy, contrary to the position taken by Hastings officials at an
earlier point in this litigation, really does not require a student
group to accept all comers. Now, Hastings explains, its policy
allows “neutral and generally applicable membership requirements
unrelated to ‘status or beliefs.’ ” Brief for Respondent
Hastings College of Law 5. As examples of permissible membership
requirements, Hastings mentions academic standing, writing ability,
“dues, attendance, and
even conduct requirements.”
Ibid. (emphasis added).
It seems doubtful that Hastings’
new policy permits registered groups to condition membership
eligibility on whatever “conduct requirements” they may wish to
impose. If that is the school’s current policy, it is hard to see
why CLS may not be registered, for what CLS demands is that members
foreswear “unrepentant participation in or advocacy of a sexually
immoral lifestyle.” App. 146. That should qualify as a conduct
requirement.
If it does not, then what Hastings’ new policy
must mean is that registered groups may impose some, but not all,
conduct requirements. And if that is the case, it is incumbent on
Hastings to explain which conduct requirements are acceptable,
which are not, and why CLS’s requirement is not allowed. Hastings
has made no effort to provide such an explanation.[
Footnote 6]
VI
I come now to the version of
Hastings’ policy that the Court has chosen to address. This is not
the policy that Hastings invoked when CLS was denied registration.
Nor is it the policy that Hastings now proclaims—and presumably
implements. It is a policy that, as far as the record establishes,
was in force only from the time when it was first disclosed by the
former dean in July 2005 until Hastings filed its brief in this
Court in March 2010. Why we should train our attention on this
particular policy and not the other two is a puzzle. But in any
event, it is clear that the accept-all-comers policy is not
reasonable in light of the purpose of the RSO forum, and it is
impossible to say on the present record that it is viewpoint
neutral.
A
Once a state university opens a
limited forum, it “must respect the lawful boundaries it has itself
set.”
Rosenberger, 515 U. S., at 829. Hastings’
regulations on the registration of student groups impose only two
substantive limitations: A group seeking registration must have
student members and must be non-commercial. App. to Pet. for Cert.
82a–83a, Hastings Board of Directors, Policies and Regulations
Applying to College Activities, Organizations and Students §34.10
(June 22, 1990) (hereinafter Hastings Regulations). Access to the
forum is not limited to groups devoted to particular purposes. The
regulations provide that a group applying for registration must
submit an official document including “a statement of
its
purpose,”
id., at 83a (Hastings Regulations
§34.10.A.1 (emphasis added)), but the regulations make no attempt
to define the limits of acceptable purposes. The regulations do not
require a group seeking registration to show that it has a certain
number of members or that its program is of interest to any
particular number of Hastings students. Nor do the regulations
require that a group serve a need not met by existing groups.
The regulations also make it
clear that the registration program is not meant to stifle
unpopular speech. They proclaim that “[i]t is the responsibility of
the Dean to ensure an ongoing opportunity for the expression of a
variety of viewpoints.”
Id., at 82a (Hastings Regulations
§33.11). They also emphatically disclaim any endorsement of or
responsibility for views that student groups may express.
Id., at 85a (Hastings Regulations §34.10.D).
Taken as a whole, the regulations plainly
contemplate the creation of a forum within which Hastings students
are free to form and obtain registration of essentially the same
broad range of private groups that nonstudents may form off campus.
That is precisely what the parties in this case stipulated: The RSO
forum “seeks to promote a diversity of viewpoints
among
registered student organizations, including viewpoints on religion
and human sexuality.” App. 216 (emphasis added).
The way in which the RSO forum actually
developed corroborates this design. As noted, Hastings had more
than 60 RSOs in 2004–2005, each with its own independently devised
purpose. Some addressed serious social issues; others—for example,
the wine appreciation and ultimate Frisbee clubs—were simply
recreational. Some organizations focused on a subject but did not
claim to promote a particular viewpoint on that subject (for
example, the Association of Communications, Sports &
Entertainment Law); others were defined, not by subject, but by
viewpoint. The forum did not have a single Party Politics Club;
rather, it featured both the Hastings Democratic Caucus and the
Hastings Republicans. There was no Reproductive Issues Club; the
forum included separate pro-choice and pro-life organizations.
Students did not see fit to create a Monotheistic Religions Club,
but they have formed the Hastings Jewish Law Students Association
and the Hastings Association of Muslim Law Students. In short, the
RSO forum, true to its design, has allowed Hastings students to
replicate on campus a broad array of private, independent,
noncommercial organizations that is very similar to those that
nonstudents have formed in the outside world.
The accept-all-comers policy is antithetical
to the design of the RSO forum for the same reason that a
state-imposed accept-all-comers policy would violate the First
Amendment rights of private groups if applied off campus. As
explained above, a group’s First Amendment right of expressive
association is burdened by the “forced inclusion” of members whose
presence would “affec[t] in a significant way the group’s ability
to advocate public or private viewpoints.”
Dale, 530 U.
S., at 648. The Court has therefore held that the government may
not compel a group that engages in “expressive association” to
admit such a member unless the government has a compelling
interest, “ ‘unrelated to the suppression of ideas, that
cannot be achieved through means significantly less restrictive of
associational freedoms.’ ”
Ibid. (quoting
Roberts, 468 U. S., at 623).
There can be no dispute that this standard
would not permit a generally applicable law mandating that private
religious groups admit members who do not share the groups’
beliefs. Religious groups like CLS obviously engage in expressive
association, and no legitimate state interest could override the
powerful effect that an accept-all-comers law would have on the
ability of religious groups to express their views. The State of
California surely could not demand that all Christian groups admit
members who believe that Jesus was merely human. Jewish groups
could not be required to admit anti-Semites and Holocaust deniers.
Muslim groups could not be forced to admit persons who are viewed
as slandering Islam.
While there can be no question that the State
of California could not impose such restrictions on all religious
groups in the State, the Court now holds that Hastings, a state
institution, may impose these very same requirements on students
who wish to participate in a forum that is designed to foster the
expression of diverse viewpoints. The Court lists four
justifications offered by Hastings in defense of the
accept-all-comers policy and, deferring to the school’s judgment,
ante, at 21, the Court finds all those justifications
satisfactory,
ante, at 21–24. If we carry out our
responsibility to exercise our own independent judgment, however,
we must conclude that the justifications offered by Hastings and
accepted by the Court are insufficient.
The Court first says that the
accept-all-comers policy is reasonable because it helps Hastings to
ensure that “ ‘leadership, educational, and social
opportunities’ ” are afforded to all students.
Ante,
at 21–22 (quoting Brief for Respondent Hastings College of Law 32).
The RSO forum, however, is designed to achieve these laudable ends
in a very different way—by permitting groups of students, no matter
how small, to form the groups they want. In this way, the forum
multiplies the opportunity for students to serve in leadership
positions; it allows students to decide which educational
opportunities they wish to pursue through participation in
extracurricular activities; and it permits them to create the
“social opportunities” they desire by forming whatever groups they
wish to create.
Second, the Court approves the
accept-all-comers policy because it is easier to enforce than the
Nondiscrimination Policy that it replaced. It would be “a daunting
labor,” the Court warns, for Hastings to try to determine whether a
group excluded a member based on belief as opposed to status.
Ante, at 22; see also
ante, at 2–3, n. 1
(opinion of Stevens, J.) (referring to the “impossible task of
separating out belief-based from status-based religious
discrimination”).
This is a strange argument, since the
Nondiscrimination Policy prohibits discrimination on substantially
the same grounds as the antidiscrimination provisions of many
States,[
Footnote 7] including
California, and except for the inclusion of the prohibition of
discrimination based on sexual orientation, the Nondiscrimination
Policy also largely tracks federal antidiscrimination
laws.[
Footnote 8] Moreover,
Hastings now willingly accepts greater burdens under its latest
policy, which apparently requires the school to distinguish between
certain “conduct requirements” that are allowed and others that are
not. Nor is Hastings daunted by the labor of determining whether a
club admissions exam legitimately tests knowledge or is a pretext
for screening out students with disfavored beliefs. Asked at oral
argument whether CLS could require applicants to pass a test on the
Bible, Hastings’ attorney responded: “If it were truly an objective
knowledge test, it would be okay.” Tr. of Oral Arg. 52. The long
history of disputes about the meaning of Bible passages belies any
suggestion that it would be an easy task to determine whether the
grading of such a test was “objective.”
Third, the Court argues that the
accept-all-comers policy, by bringing together students with
diverse views, encourages tolerance, cooperation, learning, and the
development of conflict-resolution skills.
Ante, at 23.
These are obviously commendable goals, but they are not undermined
by permitting a religious group to restrict membership to persons
who share the group’s faith. Many religious groups impose such
restrictions. See,
e.g., Brief for Agudath Israel of
America as
Amicus Curiae 3 (“[B]ased upon millennia-old
Jewish laws and traditions, Orthodox Jewish institutions …
regularly differentiate between Jews and non-Jews”). Such practices
are not manifestations of “contempt” for members of other faiths.
Cf.
ante, at 6 (opinion of Stevens, J.) (invoking groups
that have “contempt for Jews, blacks, and women”). Nor do they
thwart the objectives that Hastings endorses. Our country as a
whole, no less than the Hastings College of Law, values tolerance,
cooperation, learning, and the amicable resolution of conflicts.
But we seek to achieve those goals through “[a] confident pluralism
that conduces to civil peace and advances democratic
consensus-building,” not by abridging First Amendment rights. Brief
for Gays and Lesbians for Individual Liberty as
Amicus
Curiae 35.
Fourth, the Court observes that Hastings’
policy “incorporates—in fact, subsumes—state-law proscriptions on
discrimination.”
Ante, at 23. Because the First Amendment
obviously takes precedence over any state law, this would not
justify the Hastings policy even if it were true—but it is not. The
only Hastings policy considered by the Court—the accept-all-comers
policy—goes far beyond any California antidiscrimination law.
Neither Hastings nor the Court claims that California law demands
that state entities must accept all comers. Hastings itself
certainly does not follow this policy in hiring or student
admissions.
Nor is it at all clear that California law
requires Hastings to deny registration to a religious group that
limits membership to students who share the group’s religious
beliefs. Hastings cites no California court decision or
administrative authority addressing this question. Instead,
Hastings points to a statute prohibiting discrimination on
specified grounds, including religion or sexual orientation, “in
any program or activity
conducted by” certain
postsecondary educational institutions. Cal. Educ. Code Ann. §66270
(West Supp. 2010) (emphasis added). Hastings, however, does not
conduct the activities of the student groups it registers. Indeed,
Hastings disclaims such responsibility, stating both in its
regulations and its Handbook for Student Organizations that it
“
does not sponsor student organizations and therefore does
not accept liability for activities of student organizations.” App.
to Pet. for Cert. 85a (Hastings Regulations §34.10.D); App. 250. In
addition, as CLS notes, another provision of California law
specifically exempts “any funds that are used directly or
indirectly for the benefit of student organizations” from a ban on
state funding of private groups that discriminate on any of the
grounds listed in §66270. See §92150 (West Supp. 2010).
The authority to decide whether §66270 or any
other provision of California law requires religious student groups
at covered institutions to admit members who do not share the
groups’ religious views is of course a question of state law that
we cannot resolve. The materials that have been brought to our
attention, however, provide little support for the majority’s
suggested interpretation.
In sum, Hastings’ accept-all-comers policy is
not reasonable in light of the stipulated purpose of the RSO forum:
to promote a diversity of viewpoints “
among”—not
within
—“registered student organizations.” App. 216
(emphasis added).[
Footnote
9]
B
The Court is also wrong in
holding that the accept-all-comers policy is viewpoint neutral. The
Court proclaims that it would be “hard to imagine a more
viewpoint-neutral policy,”
ante, at 28, but I would not be
so quick to jump to this conclusion. Even if it is assumed that the
policy is viewpoint neutral on its face,[
Footnote 10] there is strong evidence in the record
that the policy was announced as a pretext.
The adoption of a facially
neutral policy for the purpose of suppressing the expression of a
particular viewpoint is viewpoint discrimination. See
Crawford v.
Board of Ed. of Los Angeles,
458 U. S. 527, 544
(1982) (“[A] law neutral on its face still may be unconstitutional
if motivated by a discriminatory purpose”). A simple example
illustrates this obvious point. Suppose that a hated student group
at a state university has never been able to attract more than 10
members. Suppose that the university administration, for the
purpose of preventing that group from using the school grounds for
meetings, adopts a new rule under which the use of its facilities
is restricted to groups with more than 25 members. Although this
rule would be neutral on its face, its adoption for a
discriminatory reason would be illegal.
Here, CLS has made a strong showing that
Hastings’ sudden adoption and selective application of its
accept-all-comers policy was a pretext for the law school’s
unlawful denial of CLS’s registration application under the
Nondiscrimination Policy.
Shifting policies. When Hastings
denied CLS’s application in the fall of 2004, the only policy
mentioned was the Nondiscrimination Policy. In July 2005, the
former dean suggested in a deposition that the law school actually
followed the very different accept-all-comers policy. In March of
this year, Hastings’ brief in this Court rolled out still a third
policy. As is recognized in the employment discrimination context,
where issues of pretext regularly arise, “[s]ubstantial changes
over time in [an] employer’s proffered reason for its employment
decision support a finding of pretext.”
Kobrin v.
University of Minnesota, 34 F. 3d 698, 703 (CA8
1994); see also,
e.g.,
Aragon v.
Republic
Silver State Disposal Inc., 292 F. 3d 654, 661 (CA9
2002);
Cicero v.
Borg-Warner Automotive, Inc.,
280 F. 3d 579, 592 (CA6 2001).
Timing. The timing of Hastings’
revelation of its new policies closely tracks the law school’s
litigation posture. When Hastings denied CLS registration, it cited
only the Nondiscrimination Policy. Later, after CLS alleged that
the Nondiscrimination Policy discriminated against religious
groups, Hastings unveiled its accept-all-comers policy. Then, after
we granted certiorari and CLS’s opening brief challenged the
constitutionality—and the plausibility—of the accept-all-comers
policy, Hastings disclosed a new policy. As is true in the
employment context, “[w]hen the justification for an adverse . . .
action changes during litigation, that inconsistency raises an
issue whether the proffered reason truly motivated the defendant’s
decision.”
Cicero,
supra, at 592.
Lack of documentation. When an
employer has a written policy and then relies on a rule for which
there is no written documentation, that deviation may support an
inference of pretext. See,
e.g.,
Diaz v.
Eagle Produce Ltd. Partnership, 521 F. 3d 1201, 1214
(CA9 2008);
Rudin v.
Lincoln Land Community
College, 420 F. 3d 712, 727 (CA7 2005);
Machinchick v.
PB Power, Inc., 398 F. 3d
345, 354, n. 29 (CA5 2005);
Russell v.
TG
Missouri Corp., 340 F. 3d 735, 746 (CA8 2003);
Mohammed v.
Callaway, 698 F. 2d 395,
399–400, 401 (CA10 1983).
Here, Hastings claims that it has had an
accept-all-comers policy since 1990, but it has not produced a
single written document memorializing that policy. Nor has it cited
a single occasion prior to the dean’s deposition when this putative
policy was orally disclosed to either student groups interested in
applying for registration or to the Office of Student Services,
which was charged with reviewing the bylaws of applicant groups to
ensure that they were in compliance with the law school’s
policies.
Nonenforcement. Since it appears that
no one was told about the accept-all-comers policy before July
2005, it is not surprising that the policy was not enforced. The
record is replete with evidence that Hastings made no effort to
enforce the all-comers policy until after it was proclaimed by the
former dean. See,
e.g., App. to Pet. for Cert. 118a
(Hastings Democratic Caucus);
id., at 110a (Association of
Trial Lawyers of America at Hastings);
id., at 146a–147a
(Vietnamese American Law Society);
id., at 142a–143a
(Silent Right); App. 192 (La Raza). See generally
supra,
at 7–8. If the record here is not sufficient to permit a finding of
pretext, then the law of pretext is dead.
The Court—understandably—sidesteps this issue.
The Court states that the lower courts did not address the
“argument that Hastings selectively enforces its all-comer
policy,”[
Footnote 11] that
“this Court is not the proper forum to air the issue in the first
instance,” and that “[o]n remand, the Ninth Circuit may consider
CLS’s pretext argument if, and to the extent, it is preserved.”
Ante, at 31–32.
Because the Court affirms the entry of summary
judgment in favor of respondents, it is not clear how CLS will be
able to ask the Ninth Circuit on remand to review its claim of
pretext. And the argument that we should not address this issue of
pretext because the Ninth Circuit did not do so is hard to take,
given that the Ninth Circuit barely addressed anything, disposing
of this case in precisely two sentences.
Neither of those two sentences addressed the
“novel question,”
ante, at 1, to which the bulk of this
Court’s opinion is devoted,
i.e., whether the
accept-all-comers policy is reasonable in light of the purposes of
the RSO forum and is viewpoint neutral, see
ante, at
17–31. If it is appropriate for us to consider that issue, then the
Ninth Circuit’s failure to address the issue of pretext should not
stand in the way of review by this Court.
C
One final aspect of the Court’s
decision warrants comment. In response to the argument that the
accept-all-comers-policy would permit a small and unpopular group
to be taken over by students who wish to silence its message, the
Court states that the policy would permit a registered group to
impose membership requirements “designed to ensure that students
join because of their commitment to a group’s vitality, not its
demise.”
Ante, at 27. With this concession, the Court
tacitly recognizes that Hastings does not really have an
accept-all-comers policy—it has an accept-some-dissident-comers
policy—and the line between members who merely seek to change a
group’s message (who apparently must be admitted) and those who
seek a group’s “demise” (who may be kept out) is hopelessly
vague.
Here is an example. Not all
Christian denominations agree with CLS’s views on sexual morality
and other matters. During a recent year, CLS had seven members.
Suppose that 10 students who are members of denominations that
disagree with CLS decided that CLS was misrepresenting true
Christian doctrine. Suppose that these students joined CLS, elected
officers who shared their views, ended the group’s affiliation with
the national organization, and changed the group’s message. The new
leadership would likely proclaim that the group was “vital” but
rectified, while CLS, I assume, would take the view that the old
group had suffered its “demise.” Whether a change represents reform
or transformation may depend very much on the eye of the
beholder.
Justice Kennedy takes a similarly mistaken
tack. He contends that CLS “would have a substantial case on the
merits if it were shown that the all-comers policy was … used to
infiltrate the group or challenge its leadership in order to stifle
its views,”
ante, at 4 (concurring opinion), but he does
not explain on what ground such a claim could succeed. The Court
holds that the accept-all-comers policy is viewpoint neutral and
reasonable in light of the purposes of the RSO forum. How could
those characteristics be altered by a change in the membership of
one of the forum’s registered groups? No explanation is
apparent.
In the end, the Court refuses to acknowledge
the consequences of its holding. A true accept-all-comers policy
permits small unpopular groups to be taken over by students who
wish to change the views that the group expresses. Rules requiring
that members attend meetings, pay dues, and behave politely, see
ante, at 27, would not eliminate this threat.
The possibility of such takeovers, however, is
by no means the most important effect of the Court’s holding. There
are religious groups that cannot in good conscience agree in their
bylaws that they will admit persons who do not share their faith,
and for these groups, the consequence of an accept-all-comers
policy is marginalization. See Brief for Evangelical Scholars
(Officers and 24 Former Presidents of the Evangelical Theological
Society) et al. as
Amici Curiae 19 (affirmance in this
case “will allow every public college and university in the United
States to exclude all evangelical Christian organizations”); Brief
for Agudath Israel of America as
Amicus Curiae 3, 8
(affirmance would “point a judicial dagger at the heart of the
Orthodox Jewish community in the United States” and permit that
community to be relegated to the status of “a second-class group”);
Brief for Union of Orthodox Jewish Congregations of America as
Amicus Curiae 3 (affirmance “could significantly affect
the ability of [affiliated] student clubs and youth movements … to
prescribe requirements for their membership and leaders based on
religious beliefs and commitments”). This is where the Court’s
decision leads.
* &emsp* *
I do not think it is an
exaggeration to say that today’s decision is a serious setback for
freedom of expression in this country. Our First Amendment reflects
a “profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open.”
New York Times Co. v.
Sullivan,
376 U. S. 254, 270
(1964). Even if the United States is the only Nation that shares
this commitment to the same extent, I would not change our law to
conform to the international norm. I fear that the Court’s decision
marks a turn in that direction. Even those who find CLS’s views
objectionable should be concerned about the way the group has been
treated—by Hastings, the Court of Appeals, and now this Court. I
can only hope that this decision will turn out to be an
aberration.
Footnote 1
CLS consistently argued in the courts below
that Hastings had applied its registration policy in a
discriminatory manner. See,
e.g., Plaintiff’s Notice of
Motion for Summary Judgment and Memorandum in Support of Motion for
Summary Judgment in No. C 04–4484–JSW (ND Cal.), pp. 6–7
(“Hastings allows other registered student organizations to require
that their members and/or leaders agree with the organization’s
beliefs and purposes”). CLS took pains to bring forward evidence to
substantiate this claim. See
supra, at 7–8.
CLS’s brief in the Court of Appeals reiterated its contention
that Hastings had not required all RSOs to admit all student
applicants. CLS’s brief stated that “Hastings allows other
registered student organizations to require that their leaders
and/or members agree with the organization’s beliefs and purposes.”
Brief for Appellant in No. 06–15956 (CA9), pp. 14–15 (citing
examples). See also
id., at 54–55 (“Hastings routinely
recognizes student groups that limit membership or leadership on
the basis of belief. . . . Hastings’ actual practice demonstrates
that the forum is not reserved to student organizations that do not
discriminate on the basis of belief”). Responding to these
arguments, the law school remarked that CLS “repeatedly asserts
that ‘Hastings routinely recognizes student groups that limit
membership or leadership on the basis of belief.’ ” Brief for
Appellees in No. 06–15956 (CA9), p. 4.
Footnote 2
The Court attempts to distinguish
Healy on the ground that there the college “explicitly
denied the student group official recognition
because of
the group’s viewpoint.”
Ante, at 17, n. 15. The same,
however, is true here. CLS was denied recognition under the
Nondiscrimination Policy because of the viewpoint that CLS sought
to express through its membership requirements. See
supra,
at 5;
infra, at 18–23. And there is strong evidence that
Hastings abruptly shifted from the Nondiscrimination Policy to the
accept-all-comers policy as a pretext for viewpoint discrimination.
See
infra, at 31–35.
Footnote 3
CLS sought a declaratory judgment that this
policy is unconstitutional and an injunction prohibiting its
enforcement. See App. 80. Particularly in light of Hastings’
practice of changing its announced policies, these requests are not
moot. It is well settled that the voluntary cessation of allegedly
unlawful conduct does not moot a case in which the legality of that
conduct is challenged. See
City of Mesquite v.
Aladdin’s Castle, Inc.,
455 U. S. 283, 289
(1982); see also
Allee v.
Medrano,
416 U. S. 802, 810–811
(1974);
DeFunis v.
Odegaard,
416 U. S. 312, 318
(1974)
(per curiam). If the rule were otherwise, the
courts would be compelled to leave “ ‘[t]he defendant … free
to return to his old ways.’ ”
United States v.
Concentrated Phosphate Export Assn., Inc.,
393 U. S. 199, 203
(1968) (quoting
United States v.
W. T. Grant Co.,
345 U. S. 629,
632 (1953)). Here, there is certainly a risk that Hastings will
“return to [its] old ways,” and therefore CLS’s requests for
declaratory and injunctive relief with respect to the
Nondiscrimination Policy are not moot. If, as the Court assumes,
the parties stipulated that the only relevant policy is the
accept-all-comers policy, then the District Court should not have
addressed the constitutionality of the Nondiscrimination Policy.
But the District Court approved both policies, and the Court of
Appeals affirmed the judgment. That judgment remains binding on
CLS, so it is only appropriate that CLS be permitted to challenge
that determination now. The question of the constitutionality of
the Nondiscrimination Policy falls comfortably within the question
presented, and CLS raised that issue in its brief. See Brief for
Petitioner 41–46.
Footnote 4
In
Rosenberger the university argued
that the denial of student activity funding for all groups that
sought to express a religious viewpoint was “facially neutral.” See
Brief for Respondents in
Rosenberger v.
Rector &
Visitors of Univ. of Va., O. T. 1994, No. 94–329, p. 2;
515 U. S., at 824–825. The
Rosenberger dissenters agreed
that the university’s policy did not constitute viewpoint
discrimination because “it applie[d] to Muslim and Jewish and
Buddhist advocacy as well as to Christian,” and it “applie[d] to
agnostics and atheists as well as it does to deists and theists.”
Id., at 895–896 (opinion of Souter, J.); cf.
ante, at 2–3 (opinion of Stevens, J.) (asserting that
under Hastings’ Nondiscrimination Policy “all acts of
religious discrimination” are prohibited (emphasis
added)). But the Court flatly rejected this argument. See 515 U.
S., at 831 (“Religion may be a vast area of inquiry, but it also
provides, as it did here, a specific premise, a perspective, a
standpoint from which a variety of subjects may be discussed and
considered”).
Footnote 5
It is not at all clear what Justice Stevens
means when he refers to religious “status” as opposed to religious
belief. See
ante, at 2, n. 1. But if by religious
status he means such things as the religion into which a person was
born or the religion of a person’s ancestors, then prohibiting
discrimination on such grounds would not involve viewpoint
discrimination. Such immutable characteristics are quite different
from viewpoint.
Footnote 6
Nor does the Court clarify this point. Suggesting
that any conduct requirement must relate to “gross misconduct,”
ante, at 4, n. 2, is not helpful.
Footnote 7
See,
e.g., Cal. Gov. Code Ann.
§12940(a) (West 2005); N. J. Stat. Ann. §10:5–12(a) (West
2002); N. Y. Exec. Law Ann. §296(1)(a) (West 2010).
Footnote 8
See,
e.g., Civil Rights Act of 1964,
42 U. S. C. §2000e
et seq. (Title VII); Civil Rights
Act of 1964, 78 Stat. 252, as amended, 42 U. S. C. §2000d
et seq. (Title VI); Age Discrimination in Employment Act
of 1967, 81 Stat. 602, as amended, 29 U. S. C. §621
et
seq.; Americans with Disabilities Act of 1990, 104 Stat. 337,
42 U. S. C. §12101
et seq. However, Title VII, which
prohibits employment discrimination on the basis of religion,
provides that religious associations and schools can hire on the
basis of religion and that any employer can hire on the basis of
religion if it is a bona fide occupational qualification. 42 U.
S. C. §§2000e–1(a), 2000e–2(e).
Footnote 9
Although we have held that the sponsor of a
limited public forum “must respect the lawful boundaries it has
itself set,”
Rosenberger, 515 U. S., at 829, the Court now
says that, if the exclusion of a group is challenged, the sponsor
can retroactively redraw the boundary lines in order to justify the
exclusion. See
ante, at 21, n. 17. This approach does not
respect our prior holding.
Footnote 10
In
Board of Regents of Univ. of Wis.
System v.
Southworth,
529 U. S. 217 (2000), the Court
considered a university rule permitting the “defund[ing]” of a
registered student group through a student referendum. See
id., at 224–225. “To the extent the referendum substitutes
majority determinations for viewpoint neutrality,” the Court
observed, “it would undermine the constitutional protection the
[university’s registered student organization] program requires.”
Id., at 235. “The whole theory of viewpoint neutrality is
that minority views are treated with the same respect as are
majority views.”
Ibid.
Hastings’ accept-all-comers policy bears a
resemblance to the
Southwark referendum process. Both
permit the majority to silence a disfavored organization. There is
force to CLS’s argument that “[a]llowing all students to join and
lead any group, even when they disagree with it, is tantamount to
establishing a majoritarian heckler’s veto” and “potentially
turn[s] every group into an organ for the already-dominant
opinion.” Brief for Petitioner 51.
The Court attempts to distinguish
Southworth as involving a funding mechanism for student
groups that operated selectively, based on groups’ viewpoints.
Ante, at 29, n. 25. But that mechanism—a student
referendum process—placed all students at risk of “being required
to pay fees which are subsidies for speech they find objectionable,
even offensive,” solely upon a majority vote of the student body.
See 529 U. S., at 230, 235. That is no different in principle than
an accept-all-comers policy that places all student organizations
at risk of take-over by a majority that is hostile to a group’s
viewpoint.
Footnote 11
As previously noted, CLS consistently argued
in the courts below that Hastings had applied its registration
policy in a discriminatory manner. See
supra, at 9–10,
n. 1. The Court would ignore these arguments because counsel
for CLS acknowledged below that Hastings
has an all-comers
policy. See
ante, at 9, n. 5 (quoting examples). But
as the Court itself acknowledges, counsel for CLS stated at oral
argument in this Court that “the Court needs to … reach the
constitutionality of the all-comers policy
as applied to CLS in
this case.” Tr. of Oral Arg. 59 (emphasis added);
ante, at 9, n. 5. And as the record shows, CLS has
never ceded its argument that Hastings applies its
accept-all-comers policy unequally.
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