The Prudence of Law School Administration Regulation of Law Student Organizations in the Aftermath of the Hastings Case (Part Two)

Yesterday (post here), I offered several principled reasons why law schools should provide ample room for student organizations to define their own purpose and values, including expectations for members and leaders. In addition, several practical reasons counsel a law school to hesitate before following the lead of the Hastings College of Law in imposing a uniform “accept-all-comers” rule. In its decision in Christian Legal Society v. Martinez, the Supreme Court majority did not offer unqualified approval for the “all-comers” rule in all circumstances and all applications:

First, as the Supreme Court majority acknowledged (and remanded the case for further consideration) and as the dissenting opinion emphasized, any policy regulating law school student organizations must be applied evenly, not selectively, and in a viewpoint neutral manner. Thus, a law school may not forbid the Christian Legal Society chapter from limiting voting rights to students who share the Christian faith, while allowing the student Outlaw group to limit leadership to students who promote “gay pride” or who endorse “same-sex” marriage. Indeed, because the Court’s majority opinion is somewhat opaque on what viewpoint neutral membership standards may be adopted consistent with an “all-comers” policy, it is not clear that a student Running Club may require members to actually go running or that a student Pro Bono Service Project could expect members to actually participate in pro bono projects, at least outside of attendance at regular club meetings inside the law school building.

A law school adopting an “accept-all-comers” policy will have to be scrupulous in following the same policy strictures for all student organizations, however heavy-handed that may end up being in practice. And therein lies a substantial degree of risk for a law school administration. Because each student group is different and has its own purpose and goals, what makes sense for one group in running a meeting or planning activities, and in adopting requirements for membership, may range from the irrelevant to the self-defeating for another. And yet the administration of an all-comers policy has to apply a one-size-fits-all standards for membership and leadership eligibility for all student organizations. Any slip away from such uniformity in a particular case would slide the public school back into what is forbidden constitutional territory, even for the Supreme Court majority.

Because law school administrators often are perceived as having favorites among students and student groups, and because students also tend to be aware of ideological leanings among administrators and faculty, students (and other faculty members) will be on the sharp look-out for any evidence of inequality in application of regulations of student groups. As was discussed yesterday, the result may be a flattening out of student groups in purpose and thus a decline in their vitality. But that’s the price a law school would choose to pay if it insists upon controlling the membership rules for student groups rather than letting the marketplace of ideas flourish without administrative regulation.

Second, the Supreme Court majority agreed that it would be an abuse of an “all-comers” policy for a law school to stand idly by while students opposed to the principles of a student group attempted to infiltrate and stage a hostile take-over of that group. The Court majority said: “If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy.” Justice Kennedy in concurrence also agreed that a constitutional challenge would have merit “if it were shown that the all-comers policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views.” Thus, the continued legitimacy of a law school all-comers policy turns on how it is actually used by students and how disputes about student group messages play out.

In other words, public law schools that adopt the Hastings-style policy will thereby assume the serious and continuing responsibility to police student behavior inside student groups and to respond to complaints of disruptive or destructive behavior, to (somehow) prevent voting blocks from forming that undermine a group’s original message, etc. The law school with a Hastings-type policy cannot afford to allow student groups to settle their own internal conflicts, an approach that would be permissible under a less restrictive law school rule that affords freedom to students groups to set their own standards and rules for participation and leadership. Under a more intrusive student organization registration system, the law school administration may be called upon to investigate, negotiate, mediate, and sometimes impose to ensure that its all-comers policy does not become the death knell for an unpopular student group.

Because such conflicts are most likely to arise in the context of belief-based student groups, law school administrators would be placed in the uncomfortable or even untenable position of having to determine whether a particular dispute about group activities, policy statements, leader elections, etc. involves a core belief and thus implicates the integrity and viability of the organization. In general, we rightly refuse to permit government officials, which include public law school administrators, to define the genuine nature of an expressive association or to draw lines between central and tangential expressive matters. Yet the Supreme Court majority apparently is devolving such a value-laden duty upon law school administrators as a response to fears of strategic student conduct to disrupt unpopular student groups, with the consequence that a public law school’s failure to faithfully uphold that duty may lead it into constitutional error.

Third, in response to concerns about exclusion of any particular viewpoint from a public law school, the Supreme Court majority highlighted the continued availability of law school facilities for meetings by non-registered student organizations, as well as alternative means of communication, such as being able to write notices on classroom chalkboards. Especially given the sharp critique of the dissent, which contended that these alternatives were not adequate and had been denied in practice to the Christian Legal Society by becoming mired in the Hastings bureaucracy, a law school administration will need to ensure that unregistered student groups have meaningful access to facilities and to students. While a law school presumably could give some preference to registered groups with respect to facilities and institutional message systems, the public law school must be careful that exercising such a preference for registered organizations does not seriously impinge on unregistered groups and their ability to regularly meet and function in the law school building. Once again, then, a law school’s choice to impose stricter regulation on student groups ultimately entails a greater responsibility by the law school administration in managing student groups. For both principled and practical reasons, greater freedom for student groups is preferable.

Finally, the more that a law school administration intrudes itself into law student group affairs, the greater the administration runs the risk of making human errors, which in this expressive context could become constitutional wrongs. If the law school fails to apply its “all-comers” policy with strict even-handedness or fails to uphold its duty to ensure that a student group is not undermined through hostile interference by students abusing the policy, the school will be vulnerable to court challenge. Even if the law school ultimately prevails in litigation, a lawsuit may draw unfavorable attention to the law school’s restrictions on free expression and association, may heighten existing controversies within the law school, may further divide the law school community, and may lead to internal law school matters being aired publicly as emails are produced in discovery and law school administrators and students are deposed. And if a public law school should be found to have crossed the constitutional line, the school will then find itself subject to judicial oversight to some degree and having to pay the attorney’s fees of the prevailing student organization’s attorneys.

In light of these circumstances and consequences, a law school may be well-advised as a matter of practical judgment to steer clear of strict regulation of student groups. However predisposed the typical law school faculty and administration may be to advance a liberal ethos by using regulation of student organizations to elevate “equality” above “freedom of association,” a fuller understanding of the potential administrative headaches may deter a law school from taking that dubious path. By contrast, a law school policy that leaves student groups the freedom to formulate their own standards, including those grounded in beliefs and principles, and that also prevents law school administrators from second-guessing the expressive choices made by others, is not only a principled choice but a prudentially wise one.

Greg Sisk