Author: ADF Senior Counsel David French
So the Supreme Court "affirmed and remanded" the Ninth Circuit. What does that mean? It turns out that it doesn't mean as much as you think.
As I read through the Supreme Court's opinion, I'm struck by the profound narrowness of its holding. Put simply, the Supreme Court upheld Hastings Law School's policy that every student organization must be open to any student on campus. This policy is known as Hastings "all-comers" policy, and as of the date of the oral argument in the case, we could not locate any other public university in the country with a similar policy. In fact, in the more than 10 years that I've been arguing and litigating this issue on campus, I've never seen another policy like it.
Typically, universities have nondiscrimination policies that prohibit discrimination on the basis of, among other things, "religion" and "sexual orientation." These kinds of provisions have been used to kick dozens of Christian student groups of campus and they rarely survive a court challenge. In this case, Hastings sought to avoid scrutiny of its nondiscrimination policy by changing it to an all-comers policy, and that all-comers policy was the policy before the Court.
It's also critical to note that while Hastings succeeded in defending its all-comers policy, it has not yet won this case. Why? Because the court remanded the case to determine if the university applied its all-comers policy in a discriminatory manner. In other words, while the policy may be constitutional, it has to be applied to all groups on campus and not just against CLS. There is strong evidence that the university has, in fact, exempted other, favored, groups from their own policy, with the radical left advocacy group La Raza permitted to discriminate on the basis of ideology and race.
Lead counsel in the case, Professor (and former Tenth Circuit Judge) Michael McConnell summed up the decision as follows:
[The opinion] not touch the written nondiscrimination policy; the leading precedent on that policy remains the Seventh Circuit decision holding it unconstitutional. While the Court upheld the all-comers policy in the abstract, it allowed a remand to determine whether it was applied in a discriminatory manner (which all the record evidence demonstrates). And Justice Kennedy , in his concurrence, states that "petitioner would have a substantial case on the merits if it were shown that the policy was . . . used to infiltrate the group or challenge its leadership in order to stifle its views." (Kennedy, concurring, at 4). In other words, if any hostile students actually take advantage of the policy, it would become unconstitutional.
As he succinctly stated: "We survived to fight another day."
This post originally appeared here.