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

Because it was such a dramatic setback for constitutionally-protected freedom of expression and association on public university campuses, the Christian Legal Society v. Martinez case naturally has been been the focus of attention primarily in terms of the constitutional questions resolved (incompletely) by the Supreme Court. Now as law schools, law faculties, law students, and others digest the opinion, the next and open question will be whether many law schools choose to follow the lead of the Hastings College of Law.  Even if they are constitutionally permitted to do so, will (and should) law schools want to adopt a policy for recognized student organizations that requires any and all students to be accepted as full voting members, full fledged participants, and leaders, regardless of attraction to the purpose and support for the message of the group?

Despite the constitutional door opened to an “accept-all-comers” policy (at least in the abstract and with many questions of application remaining), we still may hope that many or most law schools will reject the invitation to intrude so directly into law student association and expression. Even the Supreme Court majority stopped short of endorsing the wisdom of the Hasting accept-all-comers policy, reminding readers that the constitutional “permissibility” of a school policy may not correspond to the “advisability” of that policy.

For reasons of both principle and practical judgment, law schools would be well-advised to freely allow students to come together and establish the structure, membership, and leadership of student organizations according to their own shared interests and values. In today’s post, I address the principled side of the matter, that of protecting freedom of association and expression and of promoting genuine diversity within the law school. In tomorrow’s post, I’ll address the likely administrative headaches and continuing risks of litigation that would attach to those law schools that attempt to apply an “all-comers” rule to student groups in a constitutionally valid manner.

The law school that prides itself on genuine and meaningful diversity and that wishes to fully embrace freedom of expression will turn away from the political or ideological temptation to restrict student organizations according to a uniform formula. Especially in the public law school, law students should be allowed considerable leeway in setting principled standards for membership and leadership, including demanding a commitment to certain beliefs and expectations that define the group.

By extending anti-discrimination rules beyond appropriate bounds of restricting the acts of the law school as an institution and thereby imposing rules of uniformity on student groups, a law school would create a needless conflict between principles of equality and freedom of association and expression. Instead, law school should embrace what “Gays and Lesbians for Individual Liberty” in their amicus brief before the Supreme Court in Christian Legal Society v. Martinez described as “[a] confident pluralism that conduces to civil peace and advances democratic consensus building.” As this amicus explained in that brief, law schools should “permit the marketplace of ideas to work, not pretermit debate through misapplication of nondiscrimination rules in an expressive forum.”

A law school should avoid a rigid policy of enforced formal diversity that in practice crushes true diversity. A sincere commitment to meaningful diversity, not just in appearance but in thought, should lead a law school to permitting those with diverse perspectives to think and act in accordance with their own principles, absent some dangerous disruption to essential order. People of shared values should be able to join together in promoting the principles or identity of the group without being accused of invidious discrimination. In another amicus brief, a coalition of minority religious groups including the American Islamic Congress, the Coalition of African-American Pastors, and the Sikh collation offered this important reminder: “[I]t is fundamentally confused to apply a rule against religious discrimination to a religious association.”

In addition, to help build a healthy community, a law school should encourage the creation of dynamic student organizations led by deeply committed students that offer a place of refuge and an opportunity for revitalization to students of shared culture, interests, or values. A set of homogenized rules that forbid students to deliberately associate with persons of shared beliefs may undermine and enervate student groups.  Law students may be forced to go underground or leave the campus to find solidarity and support. As insightful law professors and administrators long have recognized, law student satisfaction depends in significant part on the vitality of law student organizations, especially for those from minority groups and cultures (which in the legal academy most definitely includes traditional religious believers), who otherwise may not feel connected to and welcome in the law school setting. Allowing student groups to flourish as they stake out independent and distinctive positions is not only the essence of true diversity but the means by which to make all persons at home in the law school community.

The Hastings College of Law “all-comers” policy, that was belatedly unveiled by that school after the start of litigation, may have the superficial appearance of neutrality and allow law school administrators to congratulate themselves that they have advanced progressive ideals of equality. But the force of a rule that all student groups must confer full membership, voting rights, and leadership opportunities to any and all students, regardless of support or opposition for a group’s purpose, will fall unevenly on different student groups. By its very nature, such a rule encourages and emboldens those holding majority views in a particular community, while discouraging and stifling minority viewpoints, at least those that are unpopular. For belief-based student organizations, an “all-comers” rule is demoralizing and threatening.  Even if the unpopular group avoids disintegration under such a majoritarian power rule, the group likely will be constantly at risk of dilution and weakening of its purpose and message.

Even for other law student groups based upon other subject matters, extra-curricular activities, or social gatherings, the "accept-all-comers" rule may initiate a general erosion in the vibrancy of student groups.  Law school administrators will be watchful for any sign that any group is setting meaningful standards of shared values or acceptable conduct, because it must zealously prohibit membership restrictions for all student groups to avoid accusations of uneven application to belief-based groups. Accordingly, to avoid running afoul of the “all-comers” open access rule, many student organizations will feel compelled to look for the lowest common denominator in describing itself. The flattening effect of the rule may drain energy and excitement from student groups, causing them to slowly fade as a significant part of a healthy law school community.

Greg Sisk