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  • Martinez Ruling a "Serious Setback for Freedom of Expression"

    CLS v. Martinez case is narrow in a number of respects, but its thrust is worrisome for many reasons.  The case involves a decision by a public law school, the Hastings College of the Law, to deny official recognition and potential funding to a student organization, the local chapter of the Christian Legal Society.  The Supreme Court ruled that Hastings did not violate the free speech rights of CLS by refusing to recognize it on the grounds that it requires its members and officers to sign a Statement of Faith and affirm a Christian standard of sexual conduct.

    As attested by both the Christian Legal Society and the Alliance Defense Fund, which assisted in the suit, the ruling is narrow because of several unusual facts in the case.  For one, while the case was underway, the Hastings College of the Law advanced the position that its policy was to require all student groups to admit any and every interested law student as a member.  The law school insisted that this policy was applied not only to CLS but to the Republican and Democratic clubs, the pro-life and pro-choice law groups, the feminist law association, La Raza, and so on.  The CLS disputes this contention.

    Apparently, very few, if any, other law schools maintain this type of “all comers” policy for student groups.  It’s not hard to see why.  The very idea of expressive association – of clusters of students coming together to advance their particular legal views, social ideas, or religious commitments – would be a nullity if law school administrations could insist that every group must be equally open to those who share its beliefs and those who oppose them.  Smaller organizations would be particularly vulnerable to being overwhelmed by a majority of dissident students if an organization were prohibited from having a mission and bonding its members to that mission.

    Back in 1972, in Healy v. James, an 8-0 Supreme Court barred Central Connecticut State College from denying recognition to a student chapter of Students for a Democratic Society, a controversial group that at the time of the ruling had strongly protested the War in Vietnam.  Justices across the legal spectrum from William O. Douglas to Warren Burger agreed with the result on free speech grounds.

    Writing in dissent today, Justice Samuel Alito asserted, “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’  Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”  Alito noted that throughout the history of student organizations at Hastings, only the CLS chapter had ever been denied recognition on the grounds offered by the law school.  The majority decision, he concluded, is “a serious setback for freedom of expression in this country.”

    One way forward that remains open is for Hastings to abandon its absurd policy and allow student groups to represent diverse opinions on such crucial and contentious topics as religion and sexuality.  Hastings can do so while pursuing policies that promote “real diversity and inclusion.” It’s never too late to do the right thing for free speech.

    Posted in Legal [slideshow_deploy]

    9 Responses to Martinez Ruling a "Serious Setback for Freedom of Expression"

    1. Nick, Dallas, TX says:

      Hi Chuck,

      I'm not sure you fully understand the facts of the case. First of all, the college never once said the Christian Legal Society can not associate or speak freely. They may not be a recognized organization, but there is no such right as the right to government recognition and funding for groups. They could still use school facilities, albeit not official club facilities. There would not have been a problem had the organization been opposed to gay rights as a matter of policy, but still accepted gay members (who obviously would be unlikely to join) – but the story was different from that.

      The student group was seeking $250 in travel funds so a chapter officer could attend a national conference. This $250 comes out of the pockets of either taxpayers or the student body. Taxpayer money should not ever be used to fund a discriminatory organization. In fact I personally would prefer ideally that NO private organization to be funded with taxpayer dollars, but certainly not discriminatory organizations, which inherently violate the equal protections rights of the discriminated-against taxpayers forced by law to fund it.

      Artificial rights to group recognition and funding do not and must not supercede the equal protections clause of the 14th Amendment for all individual taxpayers. Gay taxpayers should not be forced to pay for Christian Legal Society field trips any more than Christian taxpayers should be forced to pay for the field trips of a theoretical exclusively gay Satanist organization.

    2. Barbara Frances Delo says:

      Agree with Mr. Donovan 100%!

    3. Tim, Oregon says:

      Nick – are you sure that Hastings allows equal access to school facilities for non-recognized student organizations? I noted in the case summary that all RSO's at Hastings receive access to university facilities (for gatherings), minimal student fees, and communication services (bulletin boards, flyers, email, etc.), but nothing about non-recognized groups, if such exist.

      Justice Alito's dissent noted that the Hastings policy appeared to be applied non-uniformly (only in the case of CLS) and interpreted differently over time from a non-discrimination policy to "all-comers" policy. Over 60 RSO's exist at Hastings and many are aligned with ethinicity, promotion of causes, of personal beliefs. It appears that CLS was not in violation of the "all-comers" policy until they enacted the statement of faith, though their values may not have changed.

    4. Pingback: Martinez Media Round Up |

    5. amylynn says:

      Martinez v. CLS, a serious setback for discrimination. You're reading of the case is quite a textbook case of the strawman argument. Pull your head out of the sand.

      and yes Tim, Hastings does allow equal access. I was a student there, the only benefit of being a recognized student group is you get about $40 a semester for pizza, you can use the Hastings logo on your student group sign and e-mails, and you get listed on their website as a student group. Amazing huh? CLS has been suing schools across the country for the sole purpose of creating a split among the circuit so they could get this to the Supreme Court. Now if they would just actually live by Christian value of "acceptance" and follow the Golden Rule, instead of discriminating against people and suing people for political gain, they might actually be considered Christian. They are mostly a political organization. Pretty warped huh?

    6. amylynn says:

      By no stretch of the imagination would any student of First Amendment rights ever seriously argue that Freedom of Speech and Assembly mean that you are owed state funds to speak. Can you cite case law for that proposition? Of course not. Its funny to watch non-legal people try and understand this case, when practically no one has even read it.

      CLS always had unabridged Freedom of Speech and Assembly. CLS can do anything they want, exclude people, burn crosses, torture puppies, whatever… but they have no right to expect Hastings to pay for it if they dont' follow a policy that 59 other student groups adhered to. CLS' Statement of Faith was pretextual for discriminating against others as a political statement.

      The point of a student group is not to give students a change to exercise their Freedom of Speech, it is to encourage a sense of community within the students of the school, hence the policy that a student group should accept all-comers. Obviously, a group that excludes others does not help with that mission, and deserves no part in school dollars that were specifically intended for those ends.

    7. Alex says:

      For all non-legal people, this is what the case was really about, and what is really going on behind all this rhetoric about rights (that actually has much less to with the Constitution than it might seem):


    8. Jay, Kansas says:

      How come religious group asserting their rights always means treating other groups like crap. Sad.

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