Yesterday, a divided U.S. Supreme Court affirmed the University of California, Hastings College of the Law’s right to condition official recognition of a Christian student group on the organization’s agreement to open eligibility for membership and leadership to all students – including homosexual students. In an opinion on behalf of a narrow 5-4 majority, Justice Ginsburg concluded the law school’s policy – that a registered student organization (“RSO”) allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs – is a “reasonable, viewpoint-neutral condition on access to the student organization forum.” Justice Alito, who authored a vigorous dissent joined by the Chief Justice and Justices Scalia and Thomas, called the majority’s decision “a serious setback for freedom of expression in this country,” and characterized the ruling as a surrender to political correctness.

An initial and notable divide between the majority and the dissent is a disagreement over what law school policy was to be measured for constitutionality.  The law school maintains a published “non-discrimination policy” that prohibits student groups from “discriminate[ing] unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” But at the district court level, both the law school and the Christian student group, the Christian Legal Society (“CLS”), had stipulated to the following characterization of the Hastings policy under which it was denied recognition: “Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status.” Because of this stipulation, the constitutionality of this “all-comers policy,” as it was dubbed, was, according to the majority, the only question properly presented to the Court. The dissent rejected the assertion that the all-comers policy was merely an interpretation of the non-discrimination policy, and furthermore suggested that the law school’s all-comers policy was a pretext for discriminatory motives and litigation interests.

In its analysis, the majority first concluded that the limited-public-forum was the appropriate constitutional framework by which to measure the constitutionality of the all-comers policy.  The majority and Justice Stevens in a concurring opinion emphasized that the nature of the public forum at issue and the method by which Hastings influences it as warrants less than strict constitutional scrutiny. The majority stressed that “Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.” And Justice Stevens insists that it is appropriate for the law school to retain a measure of control over a “forum” it creates and funds: “[t]he RSO forum . . . is not an open commons that Hastings happens to maintain. It is a mechanism through which Hastings confers certain benefits and pursues certain aspects of its educational mission.”

Calling the all-comers policy “paradigmatically viewpoint neutral,” the majority distinguished the present case from precedents in Healy v. James 408 U.S. 169 (1972), Widmar v. Vincent, 454 U.S. 263(1981), and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), by saying that in those prior cases, “we ruled that student groups had been unconstitutionally singled out because of their points of view.” In considering the reasonableness of Hastings’ policy, “taking into account the RSO forum’s function and ‘all the surrounding circumstances,’” the Court noted its considerable deference to the school administration’s judgment regarding its educational policy. The Court characterized the all-comers policy as ensuring that “leadership, educational, and social opportunities” remained available to all students, that it served as an aid to Hastings in helping to police its non-discrimination policy, that it “encourage[d] tolerance, cooperation, and learning among students” and finally that it was consistent with existing State anti-discrimination laws. The dissent was not so quick to conclude that the all-comers policy was viewpoint neutral, and was further alarmed by the deference afforded by the majority to the law school’s justifications in defense of its policy, characterizing this deference as an abdication of the Court’s “responsibility to exercise [its] own judgment.”

The reasonableness of the policy was bolstered in the eyes of the majority by the “substantial alternative channels that remain open for CLS-student communication to take place.” In light of whatever viewpoint-neutral access barrier the all-comers policy presented, alternative avenues in electronic media – social networking sites, internet message groups, and Google – lessened the burden on CLS’ First Amendment rights. The dissent flatly rejected this argument, saying “[t]his 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.”

Finally, both the majority and Justice Kennedy in a concurring opinion rejected the proposition that an all comers policy that required student groups to accept members holding viewpoints or beliefs contrary to that of the student group could lead to “hostile takeovers” of groups such as CLS by “saboteurs” who could “infiltrate groups to subvert their mission and message.” The majority called this supposition “more hypothetical than real,” pointing to the absence of evidence of “RSO hijacking” at Hastings. To combat such intrusions, the Court emphasized that RSOs were free to condition eligibility for membership and leadership on other factors such as attendance, payment of dues, and other neutral requirements “designed to ensure that students join because of their commitment to a group’s vitality, not its demise.”

While the dissenters hoped that the Court’s decision “turn[s] out to be an aberration,” the Court’s ruling is poised to have a profound effect on a school’s right to define and control its roster of student organizations, and will certainly dictate the outcomes of identical litigation brought by CLS now pending before several lower courts across the country.