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Justices say school can require student groups to accept all who are interested

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 29, 2010; A06

Public universities may insist that officially recognized student organizations accept all students who want to join, the Supreme Court ruled Monday, and such a requirement does not violate the constitutional rights of a religious group that wants to exclude gays and those who do not share its core beliefs.

The court divided 5 to 4, with the court's liberal wing in control, in ruling that a university's nondiscrimination policy does not unfairly target faith groups. In an opinion by Justice Ruth Bader Ginsburg, the court said the Christian Legal Society, or CLS, may not both seek official recognition from the University of California's Hastings College of the Law and ask for an exception from its policies.

"CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy," she wrote. She was joined by liberal Justices John Paul Stevens, Stephen G. Breyer and Sonia Sotomayor, and by Anthony M. Kennedy, the justice most often in the middle when the court divides on ideological grounds.

The decision brought a biting dissent from the court's conservatives.

"The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,' " Justice Samuel A. Alito Jr. wrote for the four dissenters. "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."

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas joined Alito.

Hastings, located in San Francisco and the oldest law school in the California system, has nearly 70 recognized student organizations, including a wine club, a dancing organization and several based on religious affiliation.

Official recognition brings the right to use the Hastings name and logo, access to an e-mail address with a link to the law school's network, office space and meeting rooms, and small grants from student activity fees and university funds.

A Christian group was part of the landscape for years. But when it decided to affiliate with the national CLS, it was told that the group's ban on gays and nonbelievers in leadership positions violated the college's policy and its insistence that Hastings students be allowed to join any club.

The CLS sued. A federal judge sided with the school, saying its blanket policy did not single out the religious group because of its views. The U.S. Court of Appeals for the 9th Circuit affirmed.

Ginsburg said that the court in the past has been concerned when public universities based recognition decisions on a group's viewpoint, but that Hastings solved the problem with its "all-comers" policy. "It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers," she wrote.

She said CLS stipulated early on in the litigation that open membership was the law school's policy. She called "unseemly" its attempt to say now that the policy discriminates against religious groups.

Alito replied that the majority "ignores strong evidence" that the law school's policy shifted with its legal strategy and was "announced as a pretext to justify viewpoint discrimination."

But Kennedy, in a concurrence, said the university's goal of creating an open student forum is admirable. "A vibrant dialogue is not possible if students wall themselves off from opposing points of view," he wrote, adding: "The era of loyalty oaths is behind us."

Stevens also said universities are different and should be allowed to make their own policies, so long as they apply equally to all.

"Although the First Amendment may protect CLS's discriminatory practices off campus, it does not require a public university to validate or support them," Stevens wrote separately.

CLS forbids those who engage in "unrepentant homosexual conduct," Stevens said, but the same argument could be made from groups that "may exclude or mistreat Jews, blacks, and women -- or those who do not share their contempt for Jews, blacks, and women.

"A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities," he wrote.

The case is Christian Legal Society v. Martinez.

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