- The Washington Times - Thursday, July 1, 2010

Does it make sense for a public university to force a student chapter of the NAACP to accept a white supremacist as a leader? Should a Jewish student group lose campus meeting space because it doesn’t let an anti-Semite vote? The Hastings College of the Law thinks so. And a five-justice majority of the Supreme Court held Monday that the First Amendment allows such a bizarre policy.

The case of Christian Legal Society v. Martinez arose in 2004 when Hastings denied the Christian Legal Society (CLS) chapter on its campus equal access to meeting space, various communications mechanisms, and its share of funds from student activity fees - the ones that all students pay. The reason for the denial? Although CLS welcomes everyone to its meetings, officers and voting members must share its religious commitments. Hastings said that this violated a policy forcing student groups to permit anyone to vote and hold office, even those who openly reject the group’s beliefs and message. It was this unusual policy that the Supreme Court upheld.

It is not difficult to understand why an NAACP chapter might want to deny voting privileges to a white supremacist or why a Jewish group would withhold a leadership position from an anti-Semite. These individuals reject the basic beliefs of the groups, and their active participation in leadership roles would make it a lot harder for each group to formulate and communicate its unique message. A group’s messengers must agree with its message. When groups refuse to allow those with contrary views to speak for them, they are hardly doing anything wrong or “discriminatory.”

Like other campus groups, CLS had a particular message it wanted to convey. Unsurprisingly, it wanted its officers and voting members to agree with that message. Yet Hastings required CLS to promise in advance that it would never consider whether someone shared its religious commitments when choosing, say, its Bible study leaders.

This is a bad and absurd policy, just as four justices noted in their dissent. Universities “recognize” student groups to promote the marketplace of ideas. Allowing groups to choose messengers that agree with their messages ensures the sort of uninhibited, robust and vigorous debate that is supposed to occur on campus. The First Amendment is based on the idea that truth is most likely to emerge when the government doesn’t try to manipulate the conversation. But Hastings’ ill-considered policy distorts the marketplace of ideas. The school unnecessarily interferes with the sort of free expression our Constitution is supposed to protect.

Groups with unpopular messages are most at risk under Hastings’ policy. Majorities can undermine or even take over small organizations with unpopular messages. Lacking the power to deny leadership positions to individuals who reject their countercultural messages, unpopular groups are perpetually at the mercy of those espousing the dominant viewpoints. Groups with uncontroversial messages usually don’t need the First Amendment, but small and unpopular groups - like theologically conservative Christians at a liberal law school in the city of San Francisco - very much do. Sadly, the court did not provide that First Amendment protection. It held that Hastings could punish CLS for dissenting from campus orthodoxy.

In the view of those of us with the Alliance Defense Fund who, together with CLS, represented the CLS chapter in the case, the five justices who voted against CLS simply trust the government too much. Public university campuses are where some of the most egregious free-speech violations occur.

Controversial speakers are frequently relegated to so-called “free speech zones” - typically small, out-of-the-way places on campus where speech is ineffective. Under the guise of “speech codes,” universities punish speakers whose expression merely “offends” another person. Yet the high court tells us essentially to trust the perpetrators of such injustices, declining to rein in Hastings’ particular abuse of the First Amendment. You don’t have to agree with CLS’s message to be worried about the Supreme Court’s decision, as the huge number of diverse organizations that filed briefs siding with CLS in the case can attest.

Nonetheless, this setback does not mean the end of religious freedom on campus. The CLS chapter’s fight for freedom at Hastings itself isn’t even over. The court sent the case down to the lower courts for consideration of CLS’s argument that Hastings did not evenhandedly apply its policy, and ample evidence supports that argument. In addition, the court did not address the usual way public universities infringe the freedom of religious student groups - by applying “conventional” nondiscrimination policies that allow student groups to organize around secular beliefs but not around religious beliefs. Lovers of liberty should join dissenting Justice Samuel A. Alito Jr. in hoping that “this decision will turn out to be an aberration.”

Gregory S. Baylor is senior legal counsel with the Alliance Defense Fund, which represents the CLS chapter at Hastings College of the Law together with the CLS Center for Law & Religious Freedom.