Higher Ed | Daily Report

It's official – to get university funding, College Democrats have to allow Tea Partiers to join and religious groups have to admit atheists.

In a narrow 5-4 decision, the U.S. Supreme Court yesterday upheld a UC Hastings College of the Law policy that denied official status to a Christian student organization that excluded gays, saying the university has a right to withhold school funds from groups that exclude some students.

The decision won praise from Hastings, whose supporters in the case included other universities, the American Civil Liberties Union and several gay-rights groups.

"Today's ruling sends a message that public universities need not lend their name and support to groups that discriminate," said Steven R. Shapiro, Legal Director for the ACLU, in a statement.

Several free-speech groups decried the ruling, however, saying it trampled First Amendment rights. The Foundation for Individual Rights in Education and the Student Press Law Center sided with the Christian Legal Society, for example.

In a dissenting opinion, Justice Samuel Alito wrote that the decision severely limits free speech of unregistered organizations.

"The Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups," he wrote. "I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country."

A quick recap of the case: In 2004, the Christian Legal Society applied for registered student organization status at Hastings – which would have given it the use of school funds, facilities and channels of communication, as well as Hastings’ name and logo. 

The group's bylaws limited membership to people who shared its core values regarding religion and sexual orientation. Specifically, they excluded anyone who engaged in "unrepentant homosexual conduct." 

The university denied the group's request for status, citing a nondiscrimination policy. The Christian Legal Society sued. The district court and 9th U.S. Circuit Court of Appeals upheld the university's policy.

In the majority opinion, Justice Ruth Bader Ginsburg framed the key question this way: Can a public law school condition its recognition of a student group – and the use of school funds and facilities that go along with it – on the organization’s agree­ment to allow all students to join?

Yes, the court decided. The university's policy is evenly applied to organizations with various viewpoints, and it applies to a limited forum – the Christian Legal Society can still operate, just not with official university status.

In a concurring opinion, Justice John Paul Stevens wrote that the situation would be different if the university were trying to restrict the group from existing at all.

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

Ginsburg wrote that, since registered student organizations receive funding from a mandatory student fee, the university's anti-bias policy ensures that no Hastings student is forced to fund a group that would reject him or her as a member.

She also noted that the Christian Legal Society had been able to operate outside of the official channels after being denied registered student organization status. 

But Alito highlighted that part of the court's argument as exceptionally flawed. First of all, he said that even though the university offered to give the group access to some facilities, the university didn't respond in time to a Christian Legal Society request to set up a table on the patio at the start of fall semester, for example. 

And secondly, "This Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad," he wrote.  

So will yesterday's ruling presage hostile takeovers by saboteurs who will infiltrate groups to subvert their mission? Ginsburg didn't think so.

"This supposition strikes us as more hypothetical than real," she wrote.

Then again, the brief filed by Foundation for Individual Rights in Education cites a case at Central Michigan University involving the group Young Americans for Freedom, in which students who opposed the group plotted to infiltrate it in 2007.

"FIRE will continue to fight for the rights of expressive campus organizations to form around shared beliefs and for the principle that the College Democrats have the right to be Democrats, the College Atheists have the right to be atheists and the College Christians have the right to be Christians," Will Creeley, the group's director of legal and public advocacy, said in a statement.