One of the strongest arguments that the Christian Legal Society will assert in its case challenging Hastings Law School's refusal to recognize it as an official student organization is based upon a series of Supreme Court decisions establishing the rights of student or community groups to equal access to school funding and facilities. The CLS reliance on these cases is undermined, however, by two facts. First, Hastings allows CLS to meet on school property – it simply denies CLS funding and the right to use the Hastings name and logo. Second, Hastings does not prohibit "religious organizations" or "religious activities" among its student organizations – instead it refuses to recognize student organizations that discriminate in their membership policies on the basis of several factors, including religion and sexual orientation.
There are five principal decisions of the Supreme Court that govern student access to campus facilities and funding. Each case is briefly described below.
Healy v. James (1972)
The Students for a Democratic Society (SDS) sought recognition as an official student organization at Central Connecticut State College, and the college not only denied official recognition but refused to permit the organization to meet on campus. The President of the college justified his decision on the ground that the SDS had disrupted classes at many colleges and universities nationwide, and because "the organization's philosophy was antithetical to the school's policies" of academic freedom. The Supreme Court ruled that it was unconstitutional for the college to refuse to recognize the SDS - and to deny the group the opportunity to meet on campus, which it called the "most important" aspect of official recognition – solely because the group's beliefs. However, the Court did hold that the College could withhold recognition if the group refused to agree to abide by the reasonable rules and regulations of the university (such as not disrupting classes). The Court stated:
A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students' associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct. This is a minimal requirement, in the interest of the entire academic community, of any group seeking the privilege of official recognition.
Widmar v. Vincent (1981)
The University of Missouri at Kansas City had a regulation prohibiting the use of campus buildings or facilities ""for purposes of religious worship or religious teaching." The regulation was challenged by Cornerstone, a student organization whose official recognition was withdrawn by the University. The Supreme Court ruled that the University's policy was content-based and therefore subject to "strict scrutiny." The University contended that the policy satisfied strict strict scrutiny because it was necessary to serve a compelling governmental interest – that is, its duty under the Establishment Clause to remain neutral with respect to religion. The Court ruled that an "equal access" policy allowing religious groups to meet on campus on the same basis as other groups would not violate the Establishment Clause, and that accordingly the Establishment Clause was not a sufficient reason to jusify the school's policy against religious organizations.
Lamb's Chapel v. Center Moriches Union Free School District (1993)
A public school district allowed social and civic organizations to use its buildings after school hours, but it prohibited a religious organization, Lamb's Chapel, to show a film series about family values and child-rearing from a christian perspective. The Court ruled that the school district was under no duty to open its facility to the community, but that once it did it had created a "public forum," and the school could not allow some groups to use the facility to discuss family issues and bar others based upon the content of what those groups would discuss. To do so, said the Court, was to engage in "viewpoint discrimination" - and viewpoint discrimination is strictly prohibited by the First Amendment. Here is the Court's own summary of its decision in Lamb's Chapel, as set forth in a later case:
[A] school district had opened school facilities for use after school hours by community groups for a wide variety of social, civic, and recreational purposes. The district, however, had enacted a formal policy against opening facilities to groups for religious purposes. Invoking its policy, the district rejected a request from a group desiring to show a film series addressing various child-rearing questions from a "Christian perspective." There was no indication in the record in Lamb's Chapel that the request to use the school facilities was "denied for any reason other than the fact that the presentation would have been from a religious perspective." Our conclusion was unanimous: "[I]t discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint.
Rosenberger v. University of Virginia (1995)
Wide Awake Productions (WAP) was a student organization that published a magazine offering Christian views and commentary on social issues and current events. WAP applied for funding which was available from student activity fees at the University of Virginia. The University had a rule prohibiting SAF funding for any "religious activity" on the ground that the University, which is a state institution, wished to avoid any violation of the Establishment Clause. The Court ruled in favor of WAP on the ground that the SAF funding, just like the use of facilities in Lamb's Chapel, constituted a "public forum" that the University must allow access to in a non-discriminatory manner. The Court stated:
The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable. … We conclude … that here, as in Lamb's Chapel, viewpoint discrimination is the proper way to interpret the University's objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints.
Board of Regents of the University of Wisconsin v. Southworth (2001)
In Southworth, a group of students contended that it was a violation of their First Amendment rights for the university to charge a mandatory student activity fee to support student organizations – organizations whose messages students might disagree with. The Court ruled:
The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral.
Summary
CLS will argue that the foregoing cases support its claim that the refusal of Hastings Law School to officially recognize the student group is unconstitutional. CLS will contend that the decision of the law school is not "viewpoint neutral," and is therefore in violation of decisions like Lamb's Chapel, Rosenberger, and Southworth. The law school will contend that, unlike cases like Healy or Widmark, it allows CLS to meet on campus and therefore is granting CLS "equal access" to its facilities. Furthermore, the law school will argue that its decision to withhold official recognition from CLS was based upon the organization's conduct, not its speech – and that Healy allows this. Hastings will claim that it is not discriminating against CLS based upon the "content" or "viewpoint" of the ideas that CLS wishes to express – that instead, the law school has denied CLS official recognition because of its conduct in failing to open membership in CLS to all Hastings students on a non-discriminatory basis; specifically, that CLS discriminates on the basis of religion and sexual orientation.
In tomorrow's post I will discuss the "expressive association" decisions and their relation to this case.
Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.
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"Viewpoint neutral" is an interesting term.