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    :: Monday, April 19, 2010 ::
    CLS v. Martinez

    Fogged about the Christian Legal Society v. Martinez oral argument this morning. Lyle Denniston's account (than which no further authority is needed, tho' I will of course look at the transcript myself when I can) makes it sound as tho' the Court allowed this case to reach it despite uncertainty about basic facts, such as, do Hastings's draconian rules requiring its campus's Christian Legal Society to admit e.g. flaming atheists as voting members and potentially chapter presidents and Bible study leaders find any analogue in its rules governing any other campus organization?

    Lyle writes:
    Alito also suggested that the school policy were applied as Garre [representing Hastings] had described it, a group of ten Muslim students would have to allow 50 students who had strongly anti-Muslim views to come in, take it over, and run it as they pleased. “You would say the First Amendment would allow that,” the Justice commented. “That has never happened in 20 years,” Garre responded, but both Alito and then the Chief Justice dismissed that comment as unresponsive.
    In Michael McConnell's merits brief for CLS, this issue is addressed as follows:
    As the record shows, other groups at Hastings are permitted to maintain their identity, cohesion, and message by limiting their leadership and membership to students who share their core beliefs. Intervenor-Respondent Outlaw, for example, reserves the right to remove any officer who “work[s] against the spirit of the organization’s goals and objectives.” Pet. App.

    Similarly, the bylaws of Silenced Right, a prolife advocacy group, state that “[s]o long as individuals are committed to the goals set out by the leadership, they are welcome to participate and vote in Silenced Right elections.” Id. at 143a.

    Under the constitution of the Hastings chapter of the Association of Trial Lawyers of America (“ATLA”), all members must “adhere to the objectives of the Student Chapter as well as the mission of [national] ATLA.” Id. at 110a. Students may be members of the Hastings Democratic Caucus (“HDC”) only “so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in [HDC’s bylaws].” Id. at 118a. The sole objective identified in those bylaws is the group’s ideological commitment “to advance Democratic party
    principles.” Id. at 117a. All of these groups were accepted as RSOs. As Hastings acknowledged in its answer to CLS’s complaint, “the Policy on Nondiscrimination permits political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” J.A. 93.

    The record further indicates that Hastings’ Policy was not applied where it would interfere with the identity and message of a student group. For example, the La Raza bylaws restrict “policy” membership to students “of Raza background” (meaning persons of Latino or Mexican descent) who timely pay their dues and regularly attend meetings. Id. at 192. Only “policy” members have the right to vote. Ibid. La Raza also has a category of “associate” members that “encompasses all [Hastings] students * * * who are of Raza background.” Ibid. “Associate membership can be conferred by the body upon a non-Raza and nonlaw students as an honorary gesture.” Ibid. While recognizing that the La Raza bylaws “restrict voting rights to persons of La Raza background,” Director Chapman certified those bylaws as “in compliance with the Nondiscrimination Compliance Code,” in the same year in which she refused registration to CLS.
    Id. at 319.
    Hastings's position, as I read its merits brief, is that it is not discriminating against CLS at all, and that to the extent it seems to be, this is only because CLS has singled itself out by becoming the only registered student organization (RSO) at Hastings by objecting to Hastings's "nondiscrimiation" requirements for RSOs.

    And what about all those RSOs with apparently discriminatory provisions in their bylaws? Says Hastings:
    Pointing to various RSO bylaws, petitioner asserts that the policy has not been implemented in an evenhanded manner. Pet.Br.12. But CLS fails to mention that every one of those groups also signed the policy and thus agreed to abide by it, and that the record establishes that no other RSO “has ever attempted to restrict its membership on the basis of a protected category.” JA-350 ¶7. Moreover, the record establishes that Hastings does not interpret the bylaw references to which petitioner points “as an attempt to establish a test or criteria for membership in any way,” JA-350 ¶8, and groups themselves have “confirmed” that their bylaws “allow[] all students to join,” JA-351 ¶10. See also, e.g., JA-343. There is, in short, no evidence that Hastings has ever exempted any RSO from complying with its open-membership policy. Pet.App.65a-66a.
    So, if I'm reading what I think I'm reading, the Hastings chapter of CLS was denied RSO status because, unlike all other Hastings RSOs that have similarly restrictive membership criteria, CLS was candid about this fact and pointed it out to the College's administration, rather than just signing the administration-required paperwork with a "whatever."

    Ironically, if that's really what's happening, then perhaps Hastings CLS doesn't have a case against Hastings College of Law for discriminating, but against all those other Hastings RSOs for being dishonest tools. Which, alas, is not actionable.

    But that's not where it ends. If Hastings wins this case, interesting results will follow that those wishing Hastings well today will not like. Given a large and mischievous enough Young Republican presence at Hastings, its members could take over the Hastings College of Law Democratic Club and place its imprimatur on who-knows-what sort of Tea Party resolutions. A coalition of Jewish and Evangelical students could take over the Muslim student group, endorse a Greater Israel with Jerusalem as its eternal capital, and call for removal of the Mosque of Omar.

    Note that permitting all this take-over mischief would be required by the First Amendment (as well as federal and California anti-discrimination law) as interpreted by Hastings in the present case. It would be prohibited by the First Amendment as interpreted by CLS and Judge McConnell, whose First Amendment requires state actors to allow groups, as well as individuals, to define themselves and express their group identity.

    The Court could agree with Hastings that student-organization takeover mayhem has not yet occurred on the Hastings campus, and therefore the present case is not an apt vehicle for deciding whether the 1st Am should be read so as to encourage or to discourage it. But something was on the Court's mind when it granted cert on the 9th Circuit's two-sentence affirmance here, which was based on an easily-distinguished (and probably wrong) precedent of that circuit's own, conflicting with decisions from most other circuits (see Brief for Petitioners, fn. 3, collecting cases).

    Student-organization takeover mayhem is not just a hypethetical on other campuses. (See FIRE's amicus brief in support of CLS for instances of campus activist groups infiltating each other for purposes of takeover and dismantlement.) Courts should deal only with cases before them, but if SCOTUS was not concerned about the implications of the rule Hastings is asking for, what was it concerned about?

    ADDENDUM: Josh Blackman has some thoughts, with transcript excerpts, here. They show, imo: (1) McConnell got pretty badly mauled; (2) so did Garre, by a hypo from Breyer showing that, by Garre's argument, Hastings could allow Reform or Conservative Jewish worship on campus but couldn't allow use of university facilities for Orthodox Jewish worship, b/c separation of the sexes in worship wd be "discrimination" by "status"; (3) no one knows what the boundary between "religion" and "status" is, and this case cd give the Court a great opportunity to muck it up.

    :: David M. Wagner 3:45 PM [+] ::

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