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Identity crisis

Law | Can a school tell a student group to accept 'all comers,' even those at odds with the group's purpose, as a basis for recognition? The high court hears the case

Issue: "Flame-outs," May 8, 2010

WASHINGTON-Ashton Dennis couldn't sleep.

"You roll to the right, you see the Capitol, you roll to the left and you see the Supreme Court," she said, burying her head inside her sleeping bag. Dennis is one of nine students from Eastern University, a Christian college near Philadelphia, and she was halfway awake on the steps of the Supreme Court. It was midnight, in the mid-40s, with clear skies overhead and the security guard puttering back and forth across the court's spacious porch.

Some college students camp out for a spot at a concert; these nine, all in a constitutional law class together, were first in line for tickets into the high court's oral arguments the next day in a case that will decide the fate of a Christian student group in a public university. It's a bad time of year for a road trip: Finals are just over week away, noted the students' professor Kathy Lee, who didn't say much else because she was trying to sleep in a camping chair. The students ordered pizza, but the Domino's delivery guy didn't know where the Supreme Court was. They gave him directions over the phone-it's right next to the Capitol, they said.

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The Eastern University students are divided over the case, but one wants to tell a ghost story instead of spending more time debating. The case concerns a chapter of the Christian Legal Society that students tried to form at the University of California's Hastings Law School about six years ago. The school refused to recognize the student group based on the school's "all comers" policy that requires clubs to accept anyone into membership. The school argued that it shouldn't be providing resources to the group because it required voting members or leaders of the group to sign a statement of basic Christian commitments.

The denial of official student group status meant that the Christian Legal Society (CLS) chapter didn't have the same access as other groups to space on campus, the student email network, or the student activity fund. CLS sued to be recognized on the basis that its First Amendment rights had been violated-that others had been provided a forum for public speech, but they had been denied. A federal judge ruled against CLS, and then the 9th Circuit Court of Appeals ruled against the group, too.

If history is any guide, the Supreme Court agreed to hear the case because it is interested in overturning the 9th Circuit's ruling. The lawyer for CLS, Michael McConnell (incidentally a former judge who was on the short list for the chief justice seat John Roberts now holds), argued a similar case before the Supreme Court in 1995. Rosenberger v. University of Virginia concerned a public university denying funding to a student group that published a religious magazine, and the court ruled in favor of the student group. "It's like Return of the Jedi," said Jordan Lorence, another lawyer working with CLS on the case.

Support for CLS in the case isn't limited to evangelicals: A libertarian gay group, a Muslim group, and 14 states filed briefs in support of the Christian group; The Washington Post penned an editorial excoriating Hastings.

No one on either side of the case seems to think that Hastings' "all comers" policy is especially wise; a Democratic club would have to allow Republicans into voting membership and leadership, for example. The school doesn't appear to have enforced its rule consistently. Other recognized student groups, like La Raza, had ethnic standards for membership but changed the standards only after a CLS lawyer pointed it out in the course of this case.

Hastings' beef with CLS is that the group requires that members in good standing live Christianly-not in sexual immorality, which includes homosexuality, a standard that the school argues amounts to discrimination based on sexual orientation. "Bigotry toward the LGBT community . . . can't be sanctioned by the government, and it certainly cannot be given a dime in student funds," commented Barry Lynn from Americans United for Separation of Church and State, which supported Hastings in the case. More than 50 gay law student groups filed briefs in support of Hastings, on the grounds that the school should not have to "subsidize groups that engage in discrimination."

Hastings' lawyer, Gregory Garre (incidentally a George W. Bush appointee as solicitor general, who formerly argued the government's position on cases before the high court) compared the case to the Supreme Court case that stripped Bob Jones University's tax-exempt status because of its ban on interracial dating. Courts still tend to treat sexual orientation as different from race, even though Justice Sonia Sotomayor compared CLS' position on homosexuality to racism.

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