Strengthening Constitutional Self-Government

No Left Turns

Diversity and toleration on campus

This week’s TAE Online column deals with a lawsuit brought by the Christian Legal Society chapter at UC-Hastings. At issue, as in so many other cases, is whether the organization must follow the school’s nondiscrimination policy in order to be a recognized student group. The district judge in San Francisco said yes. Fortunately, he won’t have the last word.

Here’s the CLS resource page on this case.

Update: Rob Vischer notes that Judge White cites Rumsfeld v. FAIR in support of his conclusion. Is in this case what’s sauce for the goose also sauce for the gander?

Update #2: Thomas Berg responds to Rob V. that the Hastings CLS opinion takes Rumsfeld much further than the Justices intended.

Discussions - 7 Comments

Professor:

In your A.E. article, you say this: To be entitled to a seat at Hastings’ table—along with groups ... Muslim,...the CLS chapter can’t practice what it preaches.

Later, you say this:Perhaps Judge White’s opinion is just an instance of narrow legalism, a mechanical application of the standard distinction between belief and action deployed in so many other cases. He would seem to be on solid ground. The Supreme Court has held that a generally applicable law, not specifically directed at a religious practice, can permissibly place an incidental (and yet serious) burden on religious freedom. The law school’s nondiscrimination policy would seem to fit that description.

You are correct as far as you go, but there’s more to it: A state funded school cannot apply a nondiscriminatory policy in a discriminatory fashion. Clearly, by admitting a Muslim association while refusing to admit a Christian association is a discriminatory application of the policy and should summarily be rejected by the court, for that reason, if no other.

On a practical plane, what does the Hastings antidiscrimination policy achieve? Does it mean other, established and supported student groups are open to those with opposing views, whose vocal attendance would surely be distracting if not disruptive; e.g., jocks in a feminist group, committed straights attending a gay group, strict constitutionalists attending a "living constitution" society?
Or is this just a thinly veneered antiChristian position by Hastings?
I ask in all innocence...it’s been a long time since I was in a pc educational milieu.

I should have stricken the word "by" in my last paragraph. It should read:

You are correct as far as you go, but there’s more to it: A state funded school cannot apply a nondiscriminatory policy in a discriminatory fashion. Clearly, admitting a Muslim association while refusing to admit a Christian association is a discriminatory application of the policy and should summarily be rejected by the court, for that reason, if no other.

Re: Comment 3 by Tom Noell

I don’t know the answer to those questions either, and if the answer to the question, as applied to the Muslim association is that they do allow non-Muslims, etc. to join, that may be a counter argument to what I said in comments 1 and 2.

All recognized groups at least say they adhere to the Hastings policy, which means that all these organizations are officially open to all students. The Hastings Association of Muslim Law Students, for example, must be open to non-Muslim members, who must also be eligible to hold office. The judge imagines that at least some groups will be homogeneous without having to insist on it in any kind of explicit way.

Joe:

The Ohio State Law School’s CLS filed suit against OSU’s anti-discrimination policy in 2003 or early 2004. OSU settled the case the fall of 2004 and created an exemption for religious organizations. I think dropping a nuclear bomb on the lawschool would have resulted in less drama. We had little marches, protests, professors signing offical letters stating disagreement with the administration. The library even had to post little signs stating it would continue to serve students regardless of their sexuality. Then towards the end of Winter Semester, 2005 the local PBS station held a roundtable. One professor, oddly enough a commercial law one, compared CLS to Jim Crow people, and predicted some Hegalian/Marxist tide of history, etc. stuff. The two former ACLU counsel professors fought it out. One was a 1st amendment ACLU guy and supported CLS while the other was a 14th amendment ALCU guy and supported equality.

Tom:

Your argument is the one I brought up as to why anti-discrimination policies actually lead to discrimination. A majority of students can hijack any minority group by taking over its offices, agenda, etc., and if the minority tries to form a new group, the majority can hijack it as well. The purpose of student groups is differentiation, one leaves the main body to meet with others who share traits, etc. If everyone is allowed to join then it is impossible to differentiate and have a legitimate group.

During the OSU Law School snit I argued that a group of people should infiltrate another group and prevent its members from holding offical meetings and should misuse the group’s funds. I think such a stark illustration of the stupidity of anti-discrimination policies would quickly convince supporters to drop them, and lawsuits would be unnecessary. Any policy that depends upon the good sense and manners of other people is not a good policy.

Leave a Comment

* denotes a required field
 

No TrackBacks
TrackBack URL: http://nlt.ashbrook.org/movabletype/mt-tb.cgi/8431