Supreme Court: Student Groups Must Take Everyone

On June 28, the United States Supreme Court deemed college and university “all-comer policies” constitutional. All-comer policies prohibit student groups from excluding an individual from or restricting an individual’s membership in their groups for any reason, including the makeup of the individual’s beliefs.

The case in question was brought forth by the Christian Legal Society (CLS) of UC, Hastings College of the Law. CLS requires that its official members affirm that they adhere to certain Christian tenants, including the belief that “unrepentant homosexual conduct” is sinful. Based on their belief that CLS membership requirements violated the school’s all-comer non-discrimination policy, Hastings administrators revoked CLS’s official student organization status and its school funding in 2004.

Fast forward six years. The Supreme Court declared that the law school’s all-comer policy did not violate the group’s freedom of religion or speech as long as the policy was applied equally to all campus groups. CLS countered that Hastings did apply the policy in a discriminatory way. On this issue, the Court remanded the case, sending it back to a lower court for a decision on whether Hastings did, in fact, target CLS unfairly.

Professor Michael McConnell of the Stanford Law School argued the case before the Court on behalf of CLS. One of McConnell’s main arguments was that the group had the right to control its speech and maintain its identity by excluding those who did not share its beliefs or preventing those individuals from rising to group leader status.

In an interview with the* Review, McConnell said, “If an all-comers policy were applied to the equivalent of The Stanford Review at a public university, [the Review*] could no longer have a consistent editorial view. It would be forced to hire writers who do not share its perspective. This issue is particularly important for groups that hold a minority point of view.”

At the core of McConnell’s argument is the freedom of association. During the case, McConnell described Hastings’s policy as a “frontal assault on the freedom of association. Freedom of association is the right to form around shared beliefs.” McConnell sees this right as particularly important for minority viewpoint groups because it enables groups to maintain the integrity of their own mission and beliefs, whatever they may be.

The question of what this ruling will mean for Stanford is still unknown. Because Stanford is a private university, the Supreme Court ruling will have no direct effect on Stanford’s own student group membership policy. That policy reads, “Membership in student organizations must be broadly open to all currently registered Stanford students.”

When asked for clarification on the definition of “broadly open,” Nanci Howe, Director of Student Activities and Leadership, stated, “Stanford’s philosophy for all groups is that University-recognized student groups should be broadly open to all students who are interested in participating. This is an ‘all-comers policy.’”

She continued, “Stanford does allow groups to have objective criteria such as a skill or specific past experience for group membership provided that it is central to the mission of the organization. . . . We do not consider adherence to a stated belief to be an objective criteria.”

Whether Stanford’s policy qualifies as a true all-comer’s policy is questionable because it does allow for official student groups to exclude individuals based on *some *“objective criteria.” But one of the key points of contention in CLS v. Martinez was whether a group could prevent individuals who disagreed with its mission from taking part as members—voting, promoting its mission, setting the agenda, speaking for the group, or managing the group’s development.

Because Stanford does not consider belief to be an “objective criteria” by which a group can determine its membership, Stanford would theoretically also have been required to revoke the student group status and funding from CLS and all groups like it. Groups with similar membership policies would include religious, political, homosexual activist, ethnic activist, gender activist, environmental protection groups, and many others. These types of groups all center around shared core principles and include members who are dedicated to those principles.

David French, Professor McConnell’s colleague and senior council for the Alliance Defense Fund, which served as co-counsel for CLS, has argued that the ruling leaves great potential for “hostile takeovers” within groups. “As those who follow the twists and turns of free speech on campus know, attempted takeovers are hardly unheard of,” he wrote immediately following the ruling.

Ms. Howe disagrees with regard to Stanford. “We would expect that all members be interested in the group’s statement mission. In practice, it is very rare that a student would join a group for the purpose of disrupting it, but in such a situation, the group and the University can respond to behavior that is disruptive or prevents group activities from occurring.”

Citing his belief that some universities seek to control the discourse so that it resembles what they approve, Glen Davis, Pastor of Chi Alpha Christian Fellowship said, “Universities must decide what they believe tolerance looks like. Are they willing to become intolerant in the pursuit of tolerance? Are they willing to achieve their goals through coercion rather than reasoned discourse?”

While Stanford’s policy does differ from what McConnell considers ideal for the preservation of groups’ rights on campuses, McConnell did acknowledge a characteristic of Stanford’s policy that works in the favor of student groups: “Stanford has accorded a broad right for student groups to meet and speak on campus. Although Stanford is a private university and isn’t covered under the first amendment, Stanford is probably a more free-speech friendly place than some public universities.”