Hastings Law Student Group Can't Discriminate, Get Funding

By Tanya Roth, Esq. on June 29, 2010 | Last updated on March 21, 2019

On June 25, the Supreme Court handed down several major opinions, saw the opening of the Kagan nomination hearings and learned that the husband of Justice Ruth Bader Ginsberg had passed away. Justice Ginsburg herself wrote the majority opinion in one important decision announced today. In the case of Christian Legal Society v. Martinez, the Court found that the First Amendment did not require Hastings law school to support a group which excluded certain people from membership in opposition to the school's policy of non-discrimination.

This case came from Hastings College of Law in San Francisco, California. The Christian Legal Society, a student organization, allowed all students at its meetings, but anyone wishing to be a voting member of the society was required to sign a statement of faith repudiating "unrepentant participation in or advocacy of a sexually immoral lifestyle," according to the Associated Press. Hastings refused to support or fund the group because of what it found was its discriminatory policies. The Law Society was told in 2004 that it was being denied recognition because of its policy of exclusion. CLS sued.

Justice Ginsburg held that in requiring all groups to be non-discriminatory, the school did not intrude on the First Amendment. Justice Ginsburg wrote, "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy." Justice Stevens took an even stronger stance saying, "other groups may exclude or mistreat Jews, blacks and women -- or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities."

Justice Alito wrote for the dissent, finding the majority decision a setback for free expression. "Our proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,'" Alito said, quoting a previous court decision. "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."

The AP reports Leo Martinez, Hastings Law acting chancellor and dean, said the ruling "validates our policy, which is rooted in equity and fairness."

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