The Discrimination Code Christian groups fight for their right to discriminate in law schools
by Megan Rellahan
Under Hastings' non-discrimination policy, funded organizations must be open to all students who would like to join regardless of "religion and sexual orientation." However, the CLS requested exemption from the religion and sexual orientation portions of the policy.
Once the group was denied recognition by the UC Hastings College of the Law, Tim Tracey, litigation counsel for the Christian Legal Society Center for Law and Religious Freedom, has filed a federal lawsuit on the group's behalf.
"Really, they're raising that [discrimination policy] as a virtue to the extent where it's really hurting Christian groups," said Tracey. "They're saying 'Well, we want everybody to feel like they can be part of every club;' when in reality that doesn't make sense. And that's really not true diversity when we're telling everybody every group has to be like everybody else."
According to Tracey, by denying the recognition to the CLS due to CLS' unwillingness to comply with school policy, the UC Hastings College of the Law violated the group's First Amendment rights. Tracey argued that in the U.S. Constitution, there is something referred to as "express of association."
"A group of people have the right to associate around any particular set of beliefs they want—in this case, a set of Christian beliefs. The government does not have the right to come in and say you have to accept people who disagree with that message or that you have to accept people to run your club who can't agree with your values," Tracey explained.
"Diversity requirements," said Tracey, "effectively refuse Christian student groups the right to maintain their unique identity."
Since 2004, Judge Jeffrey S. White in San Francisco has been hearing both sides to this ongoing case. Finally, in April, a decision was reached, and claims by the CLS were rejected. With victorious suits filed by the CLS in similar cases against major law schools, including Arizona State University College of Law and Pennsylvania State University Dickinson School of Law, White was the first judge in the country to reject claims by the CLS. National Law Journal staff reporter Pamela A. MacLean wrote that Judge White found public colleges and universities "may not be forced to provide benefits and recognition to groups that discriminate in membership and selection of officers based on sexual orientation."
Since Judge White's ruling, the CLS has appealed with the 9th Circuit; and arguments are expected to be heard early next year.
"We're in an area where there are competing First Amendment considerations," said Ethan Schulman, Hasting's attorney from San Francisco's Howard Rice Nemerovski Canady Falk & Rabkin. "From the law school's perspective, it is whether a public institution can be forced to subsidize admittedly discriminatory organizations. That is particularly offensive to the university. From the standpoint of CLS and its allies, they see the issue narrowly: Can they be forced to admit members who don't share their beliefs?"
"But no one has forced them to admit [homosexual] members. They can meet on their own nickel and admit anyone they choose," continued Schulman.
Despite some law school authorities' bypassing a lawsuit by carving out religious exceptions to their nondiscrimination policies, other law schools are under attack. It all began in 2004, a few years after the U.S. Supreme Court's decision in Boy Scouts of America v. Dale, which held that having a group admit a homosexual as the assistant scoutmaster violated the scouts' rights of free association and expression.
While Hastings College of the Law awaits another round of courtroom battles, the CLS has filed a similar lawsuit against Southern Illinois University School of Law. National Law Journal reporter Pamela A. MacLean reported that Christian student groups were denied recognition based on discrimination against homosexuals. In the Christian Legal Society v. Walker case, although the district court denied a preliminary injunction, the 7th Circuit stepped in to order the injunction, forcing the school to recognize the Christian student groups while the court went over constitutional implications.
"The constitutional association right is crystal clear," said CLS attorney Casey Mattox. "We have a stronger argument than the Boy Scouts case."
With all the uproar over a growing nationwide conflict presenting itself in law schools, the American Civil Liberties Union (ACLU) has begun watching closely. According to ACLU Chicago attorney Adam Schwartz, "We think a public university is within its rights when it creates an inclusive educational environment."
The CLS is counting on this controversial issue to reach the Supreme Court. "There is hope [at CLS] that the Supreme Court will take one of these cases and clarify the law," stated Mattox.
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