In our June 1, 2010 newsletter, I predicted that the Court in a narrow-crafted decision would ultimately uphold the right of CLS to discriminate against those who did not hold its religious beliefs or ascribe to its sexual behavior restrictions. I thought that the court would recognize that freedom to associate includes the right to exclude. I used the examples that an atheist club would not be required to allow Christian “atheist club” members to redirect the focus of a group, and that a Muslim group would not need to allow Hindu leadership.
I thought that it was clear that there was viewpoint discrimination against the conservative Christian club, after all, of all of the various student groups, it had been the only group that was denied registration. I did not think that Court, or the dozens of other student groups regardless of their place on the liberal-conservative continuum, would want to see the focus of their groups diluted by disruptive, non-supportive students who could forcibly assume leadership roles.
Further, I thought that the Court would find that the University’s written “non-discrimination policy” reasoning was the operative policy in effect at the time it denied CLS’s registration, and therefore that the Court would rule in line with its precedent upholding college student freedom of association and freedom of speech in similar cases. It was only in the thick of litigation that Hastings had changed its argument to claim that instead of basing its decision on the non-discrimination policy, it had based the non-registration of CLS on an “all-comers” policy. Hasting had claimed, after the fact in the litigation process, that it’s “all-comers policy” that required every student group to accept any student was non-discriminatory and neutrally applied.
I thought that the Court would recognize that this had not been the original policy in place, and that Hastings was conveniently trying to avoid making what would be a losing “non-discrimination” policy argument. I anticipated a ruling that would foster a “free marketplace of ideas” ethos on public campuses.
But I was wrong. Over some strong dissent within its ranks, the Court surprisingly ruled against the Christian Club. In an effort to figure out why this happened, I asked “What would Ross Perot do?” and decided to “open the hood” and take a look inside.
This is kind of technical, so please bear with me. If a party to litigation believes that, even assuming all the facts alleged are true, there is no legal basis for the other side to prevail, they can file for “summary judgment.” Part of this involves the parties reviewing a long series of facts and deciding which ones they can both stipulate, or agree, to.
In this case, it turns out that CLS had stipulated to the ‘fact’ that “”Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organizations, regardless of [her] status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.”
In other words, CLS had stipulated, or “agreed” in the litigation process that the “all-comers” policy was the operative policy in effect when CLS was denied registration.
The majority opinion makes a big deal out of the precedent that “parties are bound by, and cannot contradict, their stipulations.”
The Court said that an “all-comers” policy was different from a discriminatory policy and was permissible.
In short, early on in the case, CLS had agreed with the other sides’ definition of the policy and the Court had no obligation to try to fix the mess CLS ended up in as a result. If the Court had decided to replace CLS’ stipulation with what CLS had actually meant, that would truly be seen as “judicial activism.”
What this means is that the court ruling is very narrow and can be challenged again should future plaintiffs play their cards right. They just have to find an example of discriminatory policy and label it as such.