Monday, June 28, 2010
The Court gets it wrong on "discrimination", diversity, and speech
The Court handed down its opinion in the Christian Legal Society case this morning. By a 5-4 vote, the Court upheld a rule requiring officially recognized student groups at Hastings College of the Law to "accept all comers" as members and leaders. As Justice Alito explains in his dissent, this rule is not the rule that was actually applied to the Christian Legal Society when it was denied official recognition for insisting that its members and leaders affirm a Christian statement of belief. Instead, this "accept all comers" rule -- which, even if it were in fact the rule, would be a very silly rule -- seems to have been seized upon in order to make less apparent the extent to which Hastings was singling out the Christian Legal Society, its views, and the views of other such groups, for special disapproval. (Justice Stevens' concurring opinion is more candid in expressing this disapproval.)
The opinion and outcome is, I think, deeply disappointing. (Note: I filed, with Tom Berg, an amicus brief in the case.) Like Justice Alito, "I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country." What is particularly unsettling, even ominous, is that the Court -- and Justice Kennedy in his concurring opinion -- seems entirely unable to understand (or perhaps simply does not believe) that it is not invidious, and it is not contrary to dialogue, diversity, education, etc., for associations to act in accord with a shared, distinctive ethos.
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/06/the-court-gets-it-wrong-on-discrimination-diversity-and-speech.html
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Rick- I've not read (or even skimmed) the opinions yet, but want to ask you something on this. You've long pushed the idea that there ought to be a diversity of institution types, each allowed to seek the good as it finds best. Why isn't this decision just an example of that? I don't think anyone argued that the rule Hastings argued for was _required_ of all state schools, let alone all schools. So, why isn't the moral that, if one wants to have a club limited in the way the Christian Law students wanted their club to be limited, they should attend a different school? You might say that this is drawing the diversity line in the wrong place- that it should be draw at the level of clubs and not of universities or law schools, but I think it will be hard to give a principled reason for that. And, given that point, it seems plausible to me that we can see this ruling as upholding the "diversity of institutions" point you elsewhere support, rather than opposing it. I'd be interested to hear why you think this isn't the case, beyond just the fact that you don't like the decision made by the institution in this particular case, of course.