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Christian Legal Society v. Martinez: “T” weighs in

posted by Scot McKnight

Lawbook.jpgWe are fortunate here at the Jesus Creed blog to have so many readers and commenters. One of whom is “T” and he is a lawyer. Here are his reflections on the SCOTUS ruling on the California case, and I hope we can have a good conversation about this. 

Should Christian organizations be protected by the Law so they can include in their groups only those who affirm their guidelines?

What a field
day for the heat. Monday, the Supreme Court handed down a 5-4 decision in the
case of Christian
Legal Society v. Martinez
. 
Members of the Jesus Creed community may remember that David
Opderbeck posted his thoughts here on the then pending case
, which I urge
folks to revisit, both for the basic facts of the case and, perhaps more
importantly, for David’s astute questioning of the often presumed appropriate
Christian response to this kind of ruling, which we will revisit later.  David and one of his colleagues have
also posted brief initial responses here
and here,
respectively, which are also worth reading in full.

In a nutshell,
the ruling: the Court, via a majority opinion written by Justice Ginsburg, has
answered the following question in the affirmative:

“May a
public law school condition its official recognition of a student group–and the
attendant use of school funds and facilities–on the organization’s agreement to
open eligibility for membership and leadership to all students” including
those “who do not share the organization’s core beliefs about religion and
sexual orientation” or any other matter?

Therefore, it
is (now) lawful (but certainly not required) for a public law school to make
and enforce a rule that prohibits any
officially
recognized
student organization (“RSO”) from denying membership
or leadership to any student based on the student’s “beliefs or status,”
regardless of the raison d’etre of the group.
  

To be clear, under the law school’s “All-comers”
rule that is at issue in the majority opinion, registered Republicans could
join a “Democrat” RSO and vice-versa, a Muslim could join (and be an
officer in) a Jewish RSO, etc.  Each
student group in a school with such a “All-comers” policy, therefore,
must choose between (i) the right to discriminate on membership and leadership
and (ii) the benefits of being an “RSO” which consist, in this case,
of being eligible to seek financial assistance from the law school, use of law
school facilities for meetings and office space, use of the school’s name and
logo,  and use of the law school’s
channels to communicate with students (placing announcements in a weekly
Office-of-Student-Services newsletter, use of designated bulletin boards, using
a Hastings-organization address, and participating in an annual Student
Organizations Fair).   

Many things could be said of the majority opinion, not many of them positive at least by me (some of which I’ll get to later), but I’d like to make specific note of the following at this stage which can help keep it in perspective: 

1. The benefits at issue here (given to RSO’s) were essentially: (i) Use of public school money, (ii) preferred use of public school facilities (physical and electronic) and venues, and (iii) visibility within official school channels for student groups (the latter very likely being the most significant to CLS).  

2. The majority opinion and Kennedy’s concurring opinion put much stock in the fact that this was a school rule, and that a school should be given latitude to guide and restrict student groups that it facilitates in order to accomplish its educational goals, which in this case were obviously weighted toward diversity interaction.  Non-lawyers should note that the majority’s emphasis on this educational context creates a built-in hurdle for using this case as precedent outside of an educational context.

3. It’s premature to expect this “All-comers” policy to sweep the nation’s universities; chiefly because it is questionable whether many school leaders would want such a policy (or even if the school in the instant case does–see pages 5-9 of J. Alito’s dissent).  Such a policy will very likely manage to aggravate all student groups (and the administrators who oversee them) who want to organize around a shared viewpoint, mission, or experience unless that mission is interactive diversity. 

4. The far more common “non-discrimination policy” of the law school (which it changed, mid-litigation, to an All-comers policy as it applied to RSOs) and the school’s selective application of that policy to CLS that the dissent felt was at issue in this case, was not addressed by a majority of the Court; which means that the Court dodged, for now, the more significant issue that this case presented which still looms for another day and (hopefully) another set of litigants.  The justices were significantly at odds about what was properly at issue in the case based on the stipulations and admissions of the parties, which makes for more thunder and lightning in the majority, concurring and dissenting opinions than actual rain that folks on the ground can use.

I could go on at this point to list the specific facts of this case, both substantive and procedural, that the majority either minimized or ignored (largely by putting carefully chosen procedural fingers in their ears), which troubles me as a Christian and even more so as a lawyer, but the bulk of those concerns are covered in depth by J. Alito’s dissent, which, if we discuss at all will need to be in another post.  But more importantly, arguing those facts in this post would, I think, only serve as a red herring and unwisely inflate the precedential scope and significance of this case.  The fact is that the Court’s ruling in this case is expressly limited to an “All-comers policy” and one that is supposedly equally enforced on all student groups.  Whether law schools or universities of any significant numbers will now pursue such a policy remains to be seen, and I, for one, am skeptical.   

But regarding the majority ruling itself, I will offer a few comments: First, many will feel that it is political correctness taken to an extreme–now with Constitutional blessing at the expense of religious association rights.  I tend to agree, though it is perhaps more technically a victory for the power of educational institutions vis a vis their students more than a victory for political correctness.  Either way, it’s hard to celebrate this decision if you’re a fan of religious freedoms.  Secondly, any time that the Supreme Court turns a deaf ear to what appears to be selective enforcement of what is supposed to be a neutral rule (see pages 7-8 of J. Alito’s dissent), whether directed toward Christians or any other viewpoint-centered group, I am concerned and disappointed.  The majority, IMO, ignores, ironically, a discriminatory injustice that is obvious to me from the record.   So this is a disappointing decision from more than one angle.

But none of that dictates an answer to the big question, which is, IMO “How should Christians respond?”  

Before I give my own take on how I hope Christians think about and respond to this case and similar issues, I’ll throw the whole matter open for general comment and discussion:

  Is this ruling a major setback for Christian groups? For Christian mission in this country?  Why or Why not?  How do you think Christians should respond and why?  More specifically, how do you think that Christians and God’s mission at this specific law school will be affected now that they can no longer set up a table at the student organization fair, use the RSO boards and office space and use the school’s name and logo?    What do you see is the real significance of the decision?



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RJS

posted June 30, 2010 at 2:51 pm


Isn’t the next step really forcing equal enforcement?
It is a setback if and only if it can be (or is) applied in a discriminatory manner.
Otherwise it will be avoided for all the reasons you give. I can’t see my University stepping into it, yet anyway.
On the other hand, it could be used as a stepping stone in a changing cultural milieu.



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kevin s.

posted June 30, 2010 at 3:17 pm


“Is this ruling a major setback for Christian groups?”
It’s a minor setback. You can be assured universities will use this as an opportunity to restrict access to campus resources by Christian groups. However, I think this will lead to a discussion about religious freedom at a time when public opinion is on our side.
“How do you think Christians should respond and why?”
Make hay. Infiltrate other organizations, and use access to their resources to do God’s work. There is no scriptural reason not to make a joke out of the hypocrisy of five unelected, self-proclaimed emperors.
Execute a similar program at any other university that tries to use this case as an excuse to discriminate against Christians. Get the college Republicans involved. They can be very creative.
“More specifically, how do you think that Christians and God’s mission at this specific law school will be affected now that they can no longer set up a table at the student organization fair, use the RSO boards and office space and use the school’s name and logo? What do you see is the real significance of the decision?”
The significance is to further paint Christianity as a sort of cosmic fairy tale, with no place in the intellectual world. Christians are constantly accused of being counter-intellectual, eschewing empiricism in favor of fanaticism.
If students stand idly by and allow it, they will be painted with the same brush. Instead, let us make the full-throated case for religious liberty in this country.



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dopderbeck

posted June 30, 2010 at 3:29 pm


Good post T. My initial thought is that this case is more of a muddle than a “setback.” I’m not even really sure what “setback” means in this context. I guess if people think “winning” in the Supreme Court is a goal the Church should pursue, this is a “setback.” For the Kingdom of God — I dunno, it could be a good thing, if we were to respond with a more chastened notion of what we can really accomplish in terms of benefits for the Church through law.
I have a few more thoughts here: http://lawreligionethics.net/2010/06/a-theological-reflection-on-conduct-and-status/



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Travis Greene

posted June 30, 2010 at 4:46 pm


T (or others), can you elucidate the differences between an “all-comers” policy and a “non-discrimination” policy? I don’t think I understand.



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Chris Ridgeway

posted June 30, 2010 at 4:55 pm


As a former campus ministry staff at a large public university, this ruling trips me both legally and incredibly practically.
To provide a practical view, our student church is registered as a University RSO, an annual paperwork process that requires submitting a mission, by-laws, and names of at least two student officers.
Two key practicals stand out if the University forced application of this policy: 1) Our main large group gathering on Saturday nights is held in a large auditorium on the business school campus, a privilege only available to registered groups: and has met there for the most part of 15 years. Given that the university owns 95% of the potential meeting spaces within walking distance of the undergraduate dorms, the reality is, our group would almost cease to function without RSO status. Students without cars don’t drive to off campus locations.
2) Much of our ministry is to incoming freshman, who at 18, are searching for just about everything, including what they believe. The Registered Student Organization “Quad Day” is an outdoor event where booths are set up by more than 500 organizations (of over 1000 registered), and members actively recruited. Over 15,000 people attend the event, our ministry collects detailed surveys from hundreds, all of whom are followed up by small group leaders in their dorms: a key link we’ve found essential to maintaining a campus ministry. (miss a year, and you’ve generally lost an incoming class…). This key event would be tough to miss.
In fact, it’s pretty hard to connect with students without RSO status. Even flyers are regulated through this system.
Yet, while we would accept gay students as members without question: we could not in good conscience accept practicing gay members as Christian leaders in violation of sexual ethics. Neither would we accept a student officer who has any sexual behavior outside of marriage.
Yep, this is difficult stuff. Certainly the potential is there to practically shut down the ministry.



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dopderbeck

posted June 30, 2010 at 5:25 pm


Chris (#5) — I understand what you’re saying and I agree that it causes lots of consternation. I think the Court mishandled this case.
I wonder, though, whether part of the dilemma is the ministry model of formal para-church groups that are officially recognized on campus and that serve as the Church’s primary contact with college students and university communities. Are there ways in which we could imagine embodying the missional Church within and to the university without having to get entangled with official student group recognition? Are there ways in which something like a Christian Study Center could form a quasi-monastic residential community adjacent to a university? Could local churches become more intentional about hospitality to university students? I think, for example, of a ministry in Manhattan called the Academy for Christian Thought, which draws lots of young folks from the universities in the city and which has a close relationship with Redeemer Pres. Is CLS v. Martinez an occasion for considering different models of ministry to college-age adults?



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eculeus

posted June 30, 2010 at 5:26 pm


Good post. I found my own initially violent gut reaction to have changed considerably as I learned more about the case. I’m realizing that it makes for an easily sensationalized headline, but is far less important than it first seems.
“Is this ruling a major setback for Christian groups? For Christian mission in this country? Why or Why not?”
Not really, no. It really only affects those universities who choose to adopt the “all-comers” policy. I believe that even Hastings will quickly find it to be an untenable long-term policy.
The real “setback” here is that Hastings has on the surface appeared to have succeeded in its bullying of CLS by changing “policy” to clearly target the student group. Although this is unfortunate, it may not have the last laugh. Aside from additional legal challenges still left open, there is a good possibility that the policy has actually backfired — membership in the group has reportedly doubled in the past year, probably due to all the attention. This is actually not so surprising, as persecution has historically only been good for the Christian faith – leading to purification as well as fast growth. In the end, you can’t “set back” God, you always end up playing into his hands.
“How do you think Christians should respond and why? More specifically, how do you think that Christians and God’s mission at this specific law school will be affected now that they can no longer set up a table at the student organization fair, use the RSO boards and office space and use the school’s name and logo? What do you see is the real significance of the decision?”
In regards to the Christians at the specific law school, do you really need a table at the student fair for publicity when your name is plastered over all the newspapers in the country in a high-profile court case? To be deprived of those resources is inconvenient, but probably not terribly handicapping, at least in the short term.
The real fascinating question is how Christians should respond to this. One thing that Christians should definitely NOT do is to try to show the folly of the policy by infiltrating other student organizations (LGBT, Jews, Muslims, etc.) in an effort to incapacitate them in a “if I can’t have it, neither can you” strategy. While this might win the “battle” of getting the policy overturned, it would lose the “war” in winning over the hearts and minds of fellow students for Christ. This would be incredibly stupid.
Rather, the counterintuitive (but Biblical) strategy would be to show love to the very administrators that are seeking to persecute their group. Don’t badmouth them. Pray for them, and find creative ways to do good to them. Now that the spotlight is on, take advantage of this opportunity to be a testimony of the transforming power of Christ,
Because, in the end, the last thing we want is for Christians everywhere to be defined solely by our stance against certain sexual acts. That’s a peripheral consequence of, and not the heart of, the gospel. The battle in the courts must be fought, but they are valuable only insomuch as it advances our front in the all-important battle for souls, which can only be won with the gospel.



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Scot McKnight

posted June 30, 2010 at 6:29 pm


Chris, good to hear from you brother. Good points and I have to admit some consternation about this SCOTUS ruling, and I do fear for ministry groups.
But what I like in all of this is what David Opderbeck writes: perhaps it is time to restore the potency of a local church/local churches on or near campuses and to begin to have coordinated efforts of alternative forms of ministry. The need to be recognized could go by the wayside, but ministries and churches can sustain themselves.
And, Chris, I am interested what ministries like yours are doing “officially” when it comes to responding to this new legal precedent.



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kevin s.

posted June 30, 2010 at 6:53 pm


“In fact, it’s pretty hard to connect with students without RSO status. Even flyers are regulated through this system.”
This is a big one. In addition, colleges use student e-mail lists to maintain a pretty stringent protocol when it comes to what information students receive.
“I wonder, though, whether part of the dilemma is the ministry model of formal para-church groups that are officially recognized on campus and that serve as the Church’s primary contact with college students and university communities.”
The ministry model is a product of geography. My church used to hold meetings on campus, and one of the “official” campus churches (which was hostile to the gospel) fought our existence tooth and nail. On-campus churches typically serve as polytheistic playgrounds.
Property near college campuses is extremely expensive. In order for orthodox churches to set up shop nearby, they need not only economic resources, but co-operation from an inherently hostile class of academia from which the Ginsburg’s of the world eminate.
“Is CLS v. Martinez an occasion for considering different models of ministry to college-age adults?”
Sure. But it is also an occasion for Christians to leverage populist sympathies to humiliate an academic class that has rejected Christ, and a court that has surrendered impartiality in order to cheer for atheism. We can do both.



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T

posted June 30, 2010 at 7:15 pm


Thoughtful comments. I’m so glad we’re hearing from a campus minister on this.
Travis, it’s a good question. A non-discrimination policy prohibits discrimination on the basis of certain categories (such as race, color, sex, religion, and occasionally also sexual orientation). These policies are general in nature and allow for several exceptions. Such policies are rarely applied in the extreme form of an “all-comers” policy that the school in this case has supposedly applied to its student groups. What I mean is, most (all?) public institutions have a non-discrimination policy for all its decisions, including admissions and hires as well as RSO membership rules, though several schools also “bend” that policy in a variety of ways via affirmative action efforts in hiring and/or admissions, for example. Schools also generally allow (and encourage) RSO’s to be organized around a distinct mission or viewpoint, including a religious viewpoint, and restrict their voting membership to people of that viewpoint. An “all-comers” policy is an extreme and rare version of a non-discrimination policy that forbids any group to discriminate on the basis of status, belief or viewpoint. In fact, in this case, the school insisted that the “all comers” policy was the school’s longstanding (oral) interpretation of their very typically written non-discrimination policy. One of the lingering odors of this case is that the school didn’t mention this “all comers” interpretation until after the litigation had begun. Nor did they use this unwritten policy to review other RSOs until after CLS pointed out other groups in violation of it during litigation.
Technically, the “All-comers” policy is the interpretation that the school gave its general (written) non-discrimination policy as it pertains specifically to RSO’s. I hope that helps. It’s frankly tough to make this case “clear.”



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John

posted June 30, 2010 at 9:46 pm


This is indeed a very very puzzling situation, not for the Christians, but for the legal scholars who are so anxious to sustain the 1st Amendment protecting free speech.
For example, Geoffrey Stone at the U of Chicago law school,
http://www.law.uchicago.edu/faculty/stone-g/
no small figure on 1st Amendment issues, said the following in his “Aims of Education” lecture of the incoming class in the autumn, 1995. Since this lecture is posted on the University of Chicago website as a support for the UofC’s position on academic freedom, the article is still considered a substantive statement.
http://news.uchicago.edu/btn/free.expression.php
“In 1919, a majority of the Supreme Court in Abrams rejected the bold approach of Justice Holmes and opted for a “safe” view of the First Amendment. Fifty years later, the Supreme Court unanimously overruled the majority opinion in Abrams and, embracing Justice Holmes’s dissenting opinion, held that the government may not punish even speech that we “loathe and believe to be fraught with death” unless that speech is both intended and likely to incite imminent lawless action. To reach this result, the Court had to challenge the first principles of its predecessors and to overturn half a century of precedent.”
The full text of Stone’s talk is available for easier reading at the following webpage.
http://www.ditext.com/stone/aims.html
One can watch and hear Stone speak on 1st Amendment rights at this official UofC event.
http://www-news.uchicago.edu/releases/09/video/freespeech.html
Christians can flourish in any and all situations. In my view, the real question here is what the supporters of the 1st Amendment will say when pressed with regard to this case. Very very puzzling.



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Emily

posted June 30, 2010 at 10:01 pm


I am a graduate student at a major university with just such an “All comers” policy. And there have been battles between Christian student organizations and the administration about it, because they refuse to admit gay and lesbian students.
The administration is not asking them to change their message. They are free to preach against homosexuality and remain an official student group. And I can’t imagine gay and lesbian students would line up to join such a group. The issue is that the Christian student group would have to *theoretically* admit a gay student and they won’t budge on this issue.
I think it goes too far. The Muslim student groups don’t complain. The GLBT groups don’t complain. The campus Democrats and Republicans don’t complain. Somehow, they all manage this policy without a problem, but in real life, a college Republican joins the College Republicans, not the college Democrats.
I think Christian student groups choose to make this an issue for political reasons. Period. And if you can’t follow university policies, then don’t expect me (as a student) to fund your activities.
Captcha: million happier



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kevin s.

posted June 30, 2010 at 10:41 pm


“I think Christian student groups choose to make this an issue for political reasons.”
So what?
“And if you can’t follow university policies, then don’t expect me (as a student) to fund your activities.”
That would be fine if you were the one funding the school. However, this is a public school.



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RJS

posted June 30, 2010 at 11:04 pm


kevin s.
Where do you think the money for student organizations comes from at most universities? Both the direct funds and the subsidy for use of facilities?



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thesauros

posted June 30, 2010 at 11:31 pm


If a person is not in an intimate, healed and forgiven relationship with Jesus the Christ, then any other ?category? to which they belong, GLTG for example or atheist or ? is not their biggest problem. Christian student groups need to get down to and remain focussed on the basics, which is a right relationship with Jesus. If an atheist or ? should seek to get h/her kicks by trying to join a Christian student society well then deal with it at the time. Otherwise, operate like any other campus organisation, don?t discriminate and for most campus Christian groups it simply won?t become and issue (how many straight Christians attempt to join the campus GLTG group), or at least not one that won?t give you an opportunity to live your faith.



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Shucky

posted July 1, 2010 at 7:41 am


i think christians should start to join and change groups that are hostile to christian interests and tenets. the supreme court seems to have no problem with people who join groups with the intent of being disruptive and destructive.



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T

posted July 1, 2010 at 9:00 am


Emily,
You hit on many of the parts of this case that I find conflicting. Thanks for speaking up. For instance, in this case, multiple other RSOs were not in compliance, but they did not have their registered status questioned, until CLS pointed them out after litigation was underway. This, admittedly, bothers me more as a lawyer than a Christian. As Alito argued in the dissent, the Court has historically been very, very sensitive when supposedly viewpoint-neutral rules are applied in a non-neutral way as they were here. Hastings was caught with its pants down on that front, and the majority brushed it off. Again, more as a lawyer than a Christian, this is a dissapointing shift for the Court. In this area of the law, it’s often how rules get applied, not how nobly or neutrally they are worded, that matters.
And the public “funds” in this case worked out to be about $75.00 per RSO. The case, therefore, really wasn’t about subsidizing viewpoints as much as it was about equal access to the public forums that were given to all RSO’s.
But one of the oddest realities in this case is how, as you mention, the all-comers policy doesn’t produce, seemingly, any diversity within viewpoint groups. Muslims don’t join the Jewish groups; Republicans don’t join the dems, etc. But, oddly, at least one of the justices argued that if several folks actually took an RSO up on this policy and intentionally made it difficult for the RSO to pursue its message (by virtue of leadership being mandatorily available to those who oppose the groups viewpoint), then that would be a different case, and likely a violation of the groups free-speech rights. Which tells me that the majority and all the other RSOs are okay with this policy, so long as few folks, if any, actually do what it allows and encourages. That’s just silly, legally and logically. I say, wouldn’t it be more odd for a group to complain about its mission and speech being frustrated after it had changed its own bylaws to specifically allow folks who oppose their viewpoint to lead the group? I can personally think of a few legal arguments that make such a group’s case much weaker than CLS’s case was here.
I could go on with what bothers me as a lawyer in this case, but for that, again, I can just encourage you to read the dissent, which is fairly well written and very interesting.
BUT, all that said, even believing CLS was, ironically, singled out unjustly, I tend to agree with some of the emotional thrust of your comment, which is, in part, was this a legal battle Christians wanted to fight? How do Christians now want to proceed? Is a legal win a moral loss and vice-versa? Those are the bigger questions for me.
Shucky, whatever the answer is, I’m pretty sure that’s not it.



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Travis Greene

posted July 1, 2010 at 9:17 am


kevin s @ 9
“In addition, colleges use student e-mail lists to maintain a pretty stringent protocol when it comes to what information students receive.”
Dude, nobody uses their student email.



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RJS

posted July 1, 2010 at 9:45 am


Ah, Travis Not true.
All of my students use their University e-mail, every last one of them. They would be lost without it. A percentage have it forwarded to a different account. I am not sure how big a percentage, but the majority of replies (75% or so) come with university return address.
Believe me – with a class of 25 or 200 (and I’ve taught classes with as many as 460) there is no way I would assemble any other kind of e-mail list.



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kevin s.

posted July 1, 2010 at 12:29 pm


“Where do you think the money for student organizations comes from at most universities? Both the direct funds and the subsidy for use of facilities?”
Some comes from tuition. The rest, usually the majority, comes from tax dollars.
“Dude, nobody uses their student email.”
Nonsense.



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RJS

posted July 1, 2010 at 1:15 pm


kevin s.
Nope – student organization money is generally a separate fee levied on the students. It does not come from tuition or from tax dollars. Some building upkeep subsidy comes from using facilities maintained by the general fund (tuition and state money (tax dollars)).
Rule 1. The books must balance.



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AJ

posted July 1, 2010 at 2:20 pm


I’m curious as to how inclusion would be applied to leadership. Leaders tend to be chosen based on merit/maturity, etc. If a group allowed participation for all, would it still get in trouble if someone with a dissenting viewpoint was not chosen for a leadership role? How would this be enforced?



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T

posted July 1, 2010 at 3:08 pm


AJ,
Good question. Practically speaking, as long as the RSO members didn’t explicitly vote based on viewpoint, discrimination would likely be very hard to prove, especially since these are students and evaluation of their performance of group tasks aren’t likely maintained or as important as they would be in a work environment.
There are several ways, IMO, in which the All-comers policy is unworkable or unenforceable in reality, especially for student groups.



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Travis Greene

posted July 1, 2010 at 4:19 pm


RJS (and kevin s),
Ok, maybe a bit of hyperbole :) But I would be willing to bet that the percentage who have it forwarded is quite high. There are plenty of programs that will send a reply from the original address.
Different schools have different cultures, but we never used our school emails. The interfaces are generally out of date and terrible, and everybody has their own email or Facebook account or whatever anyway. We had to change our school email passwords every 15 days or something absurd, and after the first semester or so I just gave up on it.
My main point is that it is silly to think that lack of access to the list of student emails is somehow a barrier to college ministry. As if that’s the only way to contact people. We need to get over our Christendom sense of entitlement and get to work.
Access to meeting space, posting flyers, etc is a different issue.



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BradK

posted July 1, 2010 at 5:12 pm


What is the CLS’s (or any other campus Christian group) real beef here? If it is truly a Christian organization (i.e. comprised of Christians) what’s the problem with letting in unbelievers? Doesn’t that just make the field “whiter unto harvest”? Sure, gay and lesbian students might decide to join. But doesn’t that just put them in closer proximity to believers to whom they might not otherwise get represent Christ? Isn’t this just really a greater opportunity to love?
Not to mention that, whether it’s a good idea or not, as soon as non-Christians start joining groups like this, some other folks are going to “infiltrate” other “exclusive” campus groups and colleges will have to either amend their policies to allow a certain amount of exclusivity or something like this will wind up back before the SCOTUS again. Some folks will probably do it anyway. I can easily see some right-wing male students trying to join female student organizations, straight students joining gay and lesbian organizations, or white students joining black or Latino groups just to try and make political points.
But I must admit that though I read Kennedy’s concurring opinion, I still didn’t get a good feel for what really caused him to rule with the majority on this case. I would have expected him to rule the other way on this case as public or government institutions allowing some exclusivity on grounds of religion really doesn’t seem to be a violation of separation of church and state.



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kevin s.

posted July 1, 2010 at 6:26 pm


“Nope – student organization money is generally a separate fee levied on the students. It does not come from tuition or from tax dollars. Some building upkeep subsidy comes from using facilities maintained by the general fund (tuition and state money (tax dollars)).”
Recognized student groups get first fibs on those facilities, and that is a big part of why it’s important to be recognized.
Also, the fee is not optional, and remains part of the overall cost of running a school that receives public funding. By your reasoning, a school could employ discriminatory practices simply by cordoning off funds provided by students to run day to day operations, while using public funds for other items.



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RJS

posted July 1, 2010 at 7:49 pm


kevin s.
No – the fee is not optional, but it is not part of the overall cost of running a school. That is why it is kept separate in the budgeting. So when Emily (#12) said “then don’t expect me (as a student) to fund your activities” she was dead on correct – the students fund those activities directly as a group. It is no different at a public or a private school.
You (#13) said it was a public school so she wasn’t funding it.
I am not making any specific argument about this case – only saying that you should actually use the truth in your argument.



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AJ

posted July 1, 2010 at 8:47 pm


T #23 – Thanks for your response. When I read that groups would have to choose between “the right to discriminate on membership and leadership” and being a RSO, the issue of leadership struck me as the most important and least enforceable issue, in my experience. However, if a group chose one person over another based primarily on beliefs, would that put the RSO in the position of having to lie or dance around the true reason or risk losing RSO status? I suppose we’ll see how it plays out.
captcha – budget morrow



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kevin s.

posted July 2, 2010 at 12:53 am


“No – the fee is not optional, but it is not part of the overall cost of running a school.”
Part of which is provided by taxpayers.
“That is why it is kept separate in the budgeting.”
It is kept separate as an accounting mechanism, not because it is part of the overall cost. Not sure what you are trying to say, here.
“So when Emily (#12) said “then don’t expect me (as a student) to fund your activities” she was dead on correct – the students fund those activities directly as a group.”
But this is a public school. To attend this school, which is supported with tax dollars, students (who pay taxes) must pay student fees. It is part and parcel of acquiring the education which would be unavailable without public support.
What if a public school wanted to devote a portion of its curriculum to whites-only courses? Theoretically, they could enact a “fee” to fund the courses, which ethnic students would also be required to pay, while devoting public funding to other initiatives.



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John

posted July 2, 2010 at 10:20 am


This thread may be dead by now, but I would like to hear from “T” on the issue of the 1st Amendment, which I highlighted in comment #11 above. When Prof. Stone quotes Holmes about the importance of the 1st Amendment, and that only violent actions could be sanctioned, it seems to me that the legal people in support of this decision must be forced to recognize they are walking on very very thin ice.



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T

posted July 2, 2010 at 12:28 pm


In general, John, I agree with you that this is tough decision for folks who love and want robust First Amendment protections. I am such a person, and largely because I felt the majority downplayed several important factors, including the value of the First Amendment concerns for religious associations and speech, I am disappointed by the decision.
That said, some distinctions are in order. This was not an old-school, explicit suppression of speech based on the content of the speech. The all-comers rule, by its terms anyway, did not favor one religion or viewpoint over any other. And what was essentially at stake was access to a variety of “public forum” venues which the school created and maintained for its students. It gave registered student orgs preferential (though not exclusive) access to those venues for speech and other activities, but prohibited any RSO from withholding membership or leadership positions from any student based on the status or belief of the student.
The Court has a settled history of protecting speech, but also allowing governments, particularly schools, to put content-neutral restrictions (time, place and manner, for instance) on speech. (Students don’t get to yell whatever they want in class, for instance, First Amendment notwithstanding.) Because this was a school rule applied to its own students, the State (as school) gets additional leeway because schools are allowed and even encouraged to do what city governments, for instance, typically do not do, which is encourage learning of this or that concept or value or skill by requiring and giving all kinds of content-rich speech and activities. For instance, law students will be required to read all kinds of cases and supporting briefs that express various viewpoints, many of which will be reprihensible to some students, but the First Amendment won’t get any student out of those assignments to take in offensive speech. Similarly, a school is given some leeway in regulating even the extra-curricular activities that it facilitates, so as to encourage the experiences it wants to encourage for educational purposes. But any restriction of speech, according to well-settled law, must be equally applied, both in word and deed, to people of all viewpoints. The justices split on whether that happened here.
But all that considered, I do think that several First Amendment scholars who are not Christians will be disappointed with this decision, which I think gets at the heart of your question.



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