CLS v. Martinez case is narrow in a number of respects, but its thrust is worrisome for many reasons.  The case involves a decision by a public law school, the Hastings College of the Law, to deny official recognition and potential funding to a student organization, the local chapter of the Christian Legal Society.  The Supreme Court ruled that Hastings did not violate the free speech rights of CLS by refusing to recognize it on the grounds that it requires its members and officers to sign a Statement of Faith and affirm a Christian standard of sexual conduct.

As attested by both the Christian Legal Society and the Alliance Defense Fund, which assisted in the suit, the ruling is narrow because of several unusual facts in the case.  For one, while the case was underway, the Hastings College of the Law advanced the position that its policy was to require all student groups to admit any and every interested law student as a member.  The law school insisted that this policy was applied not only to CLS but to the Republican and Democratic clubs, the pro-life and pro-choice law groups, the feminist law association, La Raza, and so on.  The CLS disputes this contention.

Apparently, very few, if any, other law schools maintain this type of “all comers” policy for student groups.  It’s not hard to see why.  The very idea of expressive association – of clusters of students coming together to advance their particular legal views, social ideas, or religious commitments – would be a nullity if law school administrations could insist that every group must be equally open to those who share its beliefs and those who oppose them.  Smaller organizations would be particularly vulnerable to being overwhelmed by a majority of dissident students if an organization were prohibited from having a mission and bonding its members to that mission.

Back in 1972, in Healy v. James, an 8-0 Supreme Court barred Central Connecticut State College from denying recognition to a student chapter of Students for a Democratic Society, a controversial group that at the time of the ruling had strongly protested the War in Vietnam.  Justices across the legal spectrum from William O. Douglas to Warren Burger agreed with the result on free speech grounds.

Writing in dissent today, Justice Samuel Alito asserted, “The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’  Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”  Alito noted that throughout the history of student organizations at Hastings, only the CLS chapter had ever been denied recognition on the grounds offered by the law school.  The majority decision, he concluded, is “a serious setback for freedom of expression in this country.”

One way forward that remains open is for Hastings to abandon its absurd policy and allow student groups to represent diverse opinions on such crucial and contentious topics as religion and sexuality.  Hastings can do so while pursuing policies that promote “real diversity and inclusion.” It’s never too late to do the right thing for free speech.