Non-Discrimination Policies
and Student Organizations
Jonathan Alger
Senior Vice President and General Counsel
Rutgers, The State University of New Jersey
Legal Issues in Higher Education Conference
October 18, 2010
The Issues
• Whether, and to what extent, student organizations
can or must be forced to abide by institutional nondiscrimination policies
• How to enforce non-discrimination policies in light of
principles of free expression, free association, and
freedom of religion
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Program Outline
• Overview of Supreme Court decision in Christian
Legal Society v. Martinez (2010)
• Implications for Institutional Policies and Practices
• Some Additional Rules of Thumb
• Questions and Answers
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Basic Points
• Constitution applies to public institutions only
• But private institutions may be subject to other
federal and state laws (e.g., non-discrimination
statutes), as well as institutional policies
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Christian Legal Society v.
Martinez (2010)
• Christian Legal Society and other national
organizations had challenged institutional policies that
did not permit student organizations to require
members to subscribe to statements of faith.
• Colleges and universities had taken differing
approaches (e.g., some had exceptions for religious
organizations; others made no exceptions).
• Lower courts had split on this issue.
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The Facts
• Hastings College of Law (part of the U. of California
System) extends recognition to Registered Student
Organizations
• RSOs had access to school funds, facilities, channels
of communication, and school name and logo
• RSOs were required to comply with institutional
policies, including non-discrimination policy (which
tracked state law and included religion and sexual
orientation)
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The Facts
• Hastings policy is described by the Court as an “all
comers” policy—i.e., RSOs must allow any student
to participate, become a member, or seek leadership
positions, regardless of his or her status or beliefs
• There was some dispute about the actual policy and
its application, but the parties had agreed to
“stipulations” of fact
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The Facts
• CLS (a national organization with local campus
chapters) bylaws require members and officers to sign
a “Statement of Faith” and to conduct their lives in
accord with prescribed principles (including the belief
that sexual activity should not occur outside of
marriage between a man and woman)
• CLS excludes from affiliation anyone who engages in
“unrepentant homosexual conduct” or holds different
religious convictions
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The Facts
Hastings rejected CLS’ application for RSO status
because it excluded students based on religion and
sexual orientation (and thus violated the institution’s
non-discrimination policy)
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The Suit
• CLS claimed that Hastings’ action violated their
rights to free speech, expressive association, and
free exercise of religion
• Lower courts found the all-comers condition on
RSO recognition to be reasonable and viewpoint
neutral
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The Question
Does a public institution’s conditioning access to a
student-organization forum on compliance with an
all-comers policy violate the Constitution?
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The Answer
In a 5-4 decision (authored by Ginsburg, and joined
by Stevens, Kennedy, Breyer and Sotomayor), the
Court found the policy to be reasonable and
viewpoint neutral—and thus not a violation of First
Amendment rights
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Limited Public Forum
• A limited public forum exists when a public
institution opens property that is “limited to use by
certain groups or dedicated solely to the discussion
of certain subjects”
• Under this framework, a public entity can impose
restrictions on speech that are reasonable in light of
the purposes of the forum and that are viewpoint
neutral
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Limited Public Forum
• Court characterized Hastings’ RSO program as
“dangling the carrot of subsidy, not wielding the stick of
prohibition”
• In other words, CLS had a choice whether to seek
recognition and associated benefits—it could exist
without these benefits, as other organizations chose to
do (and thus not be subject to institutional policies)
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Limited Public Forum
• Hastings said non-RSOs could still use Hastings’
facilities for meetings, and have access to
generally available bulletin boards to announce
events
• In age of electronic media, Court said CLS had
ample alternative channels of communication
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Privilege v. Right
Characterizing recognition and associated benefits
as a “subsidy” makes it a privilege rather than a
right, thus distinguishing the case from others where
groups would have been forced to accept all
members if they wanted to exist (e.g., Boy Scouts v.
Dale)
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Justifications for All-Comers
Requirement
• Ensures that leadership, educational and social
opportunities are available to all students
• Helps the institution enforce its non-discrimination
policy without inquiring into RSO motives for
membership restrictions
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Justifications (cont.)
• Encourages tolerance, cooperation and learning
among students—and when conflict occurs, can
build conflict-resolution skills (J. Kennedy
underscored relationship between an all-comers
approach and the “marketplace of ideas”)
• Follows state non-discrimination law
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Hostile Takeovers
• Court rejected argument that an all-comers policy
would facilitate “hostile takeovers” of student
organizations (little evidence of such occurrences).
• Neutral options exist to deal with this problem if it
arises: e.g., requirements for attendance, payment
of dues, rules against disruption of activities
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Selective Enforcement
CLS is now arguing that the all-comers policy was a
pretext for selective enforcement against particular
groups or viewpoints (that issue is now being argued
in the 9th Circuit)
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Previous Cases
In previous cases, Court found that colleges violated
First Amendment because they singled out groups
for disfavored treatment because of their points of
view
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Implications for Policies and
Practices
• All-comers policies are permitted, but not mandated
by the Court (must be viewpoint-neutral)
• It would help to articulate in writing the educational
rationale for such a policy and the educational
judgment involved (courts generally defer to
“educational” judgments)
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Selective Enforcement
• All-comers policies must be enforced in an evenhanded way (no special exceptions for certain
religious or political groups)
• Foundation for Individual Rights in Education sent
letter to presidents noting the difficulty in meeting
this standard
• Institutions should keep careful records of how and
why decisions about recognition are made
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Special Exceptions
• Court’s decision leaves open the door to policies
that make special exceptions for religiously-based
(or other) organizations under anti-discrimination
policies
• Thus, institutions have latitude to formulate
policies and approaches consistent with their
educational mission
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Non-Discrimination Policies
• Such policies can be applied to registered student
organizations
• Track federal and state laws, and general
institutional policies
• Policies should prohibit conduct of discrimination
based on particular categories (race, gender, etc.)
– and should not be aimed at the content of speech
or viewpoints of particular groups
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Non-Discrimination
Requirements
• With certain limited exceptions (e.g., fraternities and
sororities), groups should not discriminate in
membership on basis of race, gender, etc.
• But groups can focus on race and gender-related
issues, or advocate for rights of certain groups (e.g.,
Black or Asian Law Students Association)
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Non-Discrimination and
Private Institutions
Private institutions and their organizations can also be
subject to such rules
– Ex.: Duke University’s Student Government
Senate recently voted to cut off funds for College
Republicans chapter because they removed
their chair (allegedly because he is gay)
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Membership Requirements
• Requirements unrelated to an individual’s status
or beliefs are permissible – e.g., good
attendance, payment of dues, no gross
misconduct, skills-based tests (such as writing,
music or athletic ability)
• If hostile takeovers do occur, institutions can
revisit and strengthen such requirements
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Forming Organizations
• Institutions may want to provide flexibility in
process to form new RSOs to be responsive to
changing student needs and interests, and to
ensure a variety of viewpoints
• Consider review and removal of barriers that
prevent meaningful participation of nonregistered organizations
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Additional Rules of Thumb
• Students in public institutions have a general right
to organize and form groups
• Student organizations at public institutions cannot
be denied recognition based solely on their
viewpoint or philosophy
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Legitimate Bases for
Non-Recognition
• Groups can be asked to adhere to reasonable
campus rules.
• Their activities should not interrupt classes or
substantially interfere with other students’ ability to
obtain an education.
• Activities can be prevented that are themselves illegal
under local, state or federal laws, or that are directed
(and are likely) to incite or produce “imminent lawless
action.”
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Mandatory Student Activity Fees
• Funding must be allocated in a viewpoint-neutral
way (don’t use referenda that become “popularity
contests” regarding groups’ views).
• Institutions are not required to provide an opt-out or
refund mechanism for students who object to
funding particular groups, but they may choose to
do so.
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Religious Activities
• Recent 7th Circuit decision held that a public university
cannot deny funding for religious activities by RSOs if
the institution has opened a forum broadly to a wide
range of similar activities (Badger Catholic v. Walsh,
2010)
• U. of Wisconsin had permitted use of student activity
fees for “dialog, discussion, or debate from a religious
perspective”—but not for “worship, proselytizing, or
religious instruction”
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Badger Catholic (cont.)
University had denied funding for this group’s
mentoring/counseling (which could include guidance or
prayer with Catholic nuns or priests), as well as for a
summer retreat for leadership training where masses
were said and communal prayer sessions were held
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Badger Catholic (cont.)
• Court noted practical difficulties of distinguishing
discussions about religious subjects from religious
devotion
• University had permitted other organizations to get
funding for mentoring/counseling, and leadership
training
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Implications of Badger Catholic
• Institutions should use care when carving out
categories of activities for which they won’t provide
funding (e.g., you could exclude all retreats or
counseling, but don’t single out “spiritual” or
“religious” retreats or counseling)
• In general, decision would suggest avoiding
prohibitions related to religion and worship
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Looking Toward the Future
• Our institutions are becoming more diverse and can
expect to see more religious groups seeking RSO
status
• National organizations will continue to monitor
institutional actions and decisions in this area, and
will continue to file test cases
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Consistency and Training
• Decisions and judgments made on these issues
should be carefully documented.
• Individuals responsible for making such decisions
should have written policies to help guide them, and
receive training on the basic rules of thumb.
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QUESTIONS AND ANSWERS
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Contact Information
Jonathan Alger
Senior Vice President and General Counsel
Rutgers, The State University of New Jersey
alger@oldqueens.rutgers.edu
732-932-7697
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