A Divided Supreme Court Rules School Can Require Student Groups to Comply With “All-Comers” Policy

On June 28, 2010, the Supreme Court of the United States in a 5-4 decision upheld a law school policy that required a Christian student group to accept all students—even those who did not share the group’s core beliefs about religion and sexual orientation—in order to receive formal recognition as a student group.  Formal recognition allows student groups to receive University funding and access to certain channels of communication with students. The decision provides public schools at all levels greater flexibility to encourage inclusiveness among student groups, although the Court’s ruling is not without limits.

In Christian Legal Society v. Martinez, the University of Hastings College of Law refused to formally recognize the Christian Law Society as a student group. The Society denied voting membership and officer rights to students who were not willing to affirm their belief in the Christian faith, including an affirmation of intent to avoid advocating or engaging in sexual conduct outside of marriage between a man and a woman. The Law School has a policy that requires that all formally recognized student organizations allow any student to participate, become a member or seek leadership positions in the organization, regardless of the student’s status or beliefs (an “all-comers” policy). The Law School believed the Society’s membership policies, by discriminating against potential members on the basis of religion and sexual orientation, violated the all-comers policy that is applicable to all student groups.

The Society argued that the Law School’s refusal to recognize it as a student group violated the Society’s First Amendment rights to free speech, freedom of association and free exercise of religion, in part because the policy singled out the Society’s particular viewpoints (Christianity and sexual orientation) for special treatment. Specifically, the Society pointed to language in the policy that prohibited discrimination on several enumerated bases—including religion and sexual orientation. In contrast, the Law School argued that its policy was an all-comers policy that applied equally to all student groups regardless of their viewpoints, and that the Society was effectively seeking special treatment in the form of an exception to the generally applicable rule.

Noting that the Society had during earlier stages of the litigation agreed that the policy was an all-comers policy, the Supreme Court held that the Society could not now argue that the policy discriminated based on particular viewpoints. This technical determination was significant to the Court’s decision. Because the all-comers policy applied equally to all groups regardless of their particular viewpoint, the policy only needed to be “reasonable” to survive constitutional challenge. The Court held that the policy was not unconstitutionally discriminatory, in part because the policy (1) limited access to formal recognition and funding, rather than requiring even unrecognized student groups to accept members who did not agree with its core beliefs—and (2) was enacted for reasonable purposes—such as avoiding using public funds to support discriminatory practices.

Although the full reach of the Court’s decision will likely evolve, there are some clear and immediate implications for public schools at all levels. Under the Court’s decision, schools may require student groups to comply with broad all-comers policies in order to receive formal recognition. The Court did not address, however, whether a school could have a policy that prohibits discrimination by student groups based on particular viewpoints. For instance, it is unclear if a school could have a policy that prohibits discrimination by student groups based on religion or sexual orientation or even race, but allows discrimination by other student groups based on other issues, such as political ideology. Moreover, schools should not deny student groups that fail to comply with an all-comers policy the right to meet informally on school grounds if other unrecognized groups are allowed to do so, regardless of their membership practices.