Supreme Court considers California law school's discrimination policy

By Robert Barnes
Washington Post Staff Writer
Tuesday, April 20, 2010; A04

The Supreme Court appeared deeply divided Monday over whether a college's insistence that student organizations be open to all violates the constitutional rights of a religious group that wants to exclude gays and those who do not share its core beliefs.

If religious groups must accept anyone who wants to join, said Michael W. McConnell, the lawyer for the Christian Legal Society, "a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study, and if CLS does not promise to allow this, the college will bar them" from official recognition.

But Gregory G. Garre, the lawyer for the University of California's Hastings College of the Law, said the university has the right to insist that any student group it recognizes agree to admit all students, regardless of status or beliefs. The theories of sabotage have no basis in fact at Hastings or "the history of American education," he said.

After a spirited hour of arguments, it was hard to tell whether there was a majority on the court for either of those views.

The court returned Monday for its final round of oral arguments in the current term, and the last for Justice John Paul Stevens, who has announced his intention to retire this summer. Stevens will turn 90 on Tuesday, and he is already the second-oldest justice in history. Depending on when the term ends, he could become the second-longest-serving.

The case at hand, Christian Legal Society v. Martinez, gives the court a chance to settle fundamental questions about how far a public university must go to accommodate religious groups. But it also comes with a tangled history that could mean a limited decision, or perhaps no decision at all. Justices Stephen G. Breyer and Anthony M. Kennedy wondered whether the case was fully developed for the court to make such a significant constitutional ruling.

Hastings denied the religious group's bid for official recognition -- which brings perks such as meeting space, a small share of student activity fees and access to the college's e-mail network -- because the group required its members to sign a "statement of faith." Among other things, it forbids "unrepentant participation in or advocacy of a sexually immoral lifestyle," including sex outside of a marriage between a man and woman.

A district judge in San Francisco and the U.S. Court of Appeals for the 9th Circuit ruled for Hastings, saying its anti-discrimination policy did not infringe on CLS's freedom of association or exercise of religion.

Justice Antonin Scalia said Hastings' policy of allowing anyone to join any club made no sense.

"It is so weird to require the campus Republican Club to admit Democrats -- not just to membership, but to officership," Scalia said. "To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy."

But justices on the left saw no reason to force the college to give its imprimatur to groups that discriminate. "Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?" Justice Sonia Sotomayor asked McConnell.

McConnell said the group may not discriminate on the basis of a person's status, but can on the basis of beliefs.

"What if the belief is that African Americans are inferior?" Stevens asked.

"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.

Justices on the right saw other problems. Justice Samuel A. Alito Jr. envisioned a small group of Muslim students. "If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?" Alito asked Garre, a solicitor general in the George W. Bush administration who is now in private practice.

When Garre said that did not seem like a realistic threat, Alito replied, "CLS obviously thinks this is a real threat."

Chief Justice John G. Roberts Jr. took exception to Garre's description of CLS as a group that wants to exclude gays. "It's a religious-oriented group that wants to exclude people who do not subscribe to their religious beliefs," he said.

Private or public?

The court seemed more united in its skepticism of a California police officer's assertion that his bosses violated his privacy by reading the sexually explicit messages he sent his wife -- and his girlfriend -- on his government-issued pager.

The Ontario, Calif., Police Department had a written policy warning employees that there was no privacy in e-mails or other communications using government-owned computers and other electronic equipment. But Sgt. Jeff Quon, a member of the SWAT team, said that when he received a pager from the city, his boss said it could be used for personal purposes, so long as employees paid overage costs beyond the monthly allowance.

When the department audited the pagers to see whether official communications or private use caused consistent overages, officials discovered what Scalia referred to as the "spicy conversations."

Quon filed suit, saying the department had violated his right against unreasonable searches. The 9th Circuit agreed.

The Obama administration supported Ontario. "Millions of employees today use technologies of their employers under policies established by those employers," said Deputy Solicitor General Neal Katyal. "When a government employer has a no-privacy policy in place that governs the use of those technologies, ad hoc statements by a non-policy member cannot create a reasonable expectation of privacy."

Quon's attorney Dieter Dammeier had a hard time convincing some justices that his client had an expectation of privacy.

"I mean, wouldn't you just assume that that whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some of their superiors?" Stevens asked.

Dammeier also didn't have much luck when trying to convince the justices there were less intrusive ways to get the information on work-related messages versus private ones, such as asking the officers for permission.

"But your officers might say, 'I don't want to read these messages because they happen to be about the sexual activity of some of my co-workers and their wives and me,' which happened to be the case here," Breyer said.

"Right," Dammeier replied.

"So I guess if you had asked for consent, the officer would have said no," Breyer said.

The case is City of Ontario v. Quon.

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