Phi Beta Cons

The Right take on higher education.

Intriguing Developments at the Supreme Court


The Supreme Court may be preparing to decide — once and for all — whether student groups have a right to reserve membership and leadership for those who agree with the mission and purpose of the organization. While it is generally presumed in the rest of the world that, say, Baptist churches should be led by Baptist pastors (and not atheists or Muslims) and that these pastors shouldn’t engage in sex outside of marriage, in the university world, such common sense is deemed to be “religious” or “sexual orientation” discrimination.

Literally dozens of major universities have de-recognized Christian student groups, and federal cases have been filed from coast to coast. So far, the student groups have been successful everywhere but the Ninth Circuit. In March, that court ruled against the Christian Legal Society at UC-Hastings. Despite the constitutional importance of the issue, the following represents the entire opinion of the Court in the case:

The parties stipulate that Hastings imposes an open membership rule on all student groups — all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).

Citing an obvious conflict with cases in the Seventh Circuit and Second Circuit, CLS filed a cert petition. I’ll let the Alliance Defense Fund’s Jordan Lorence explain what happened next:

According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September. But no one imagined that by mid-November we would still be waiting for the Supreme Court to act. Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices). A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.

However, the Supreme Court has now delayed deciding what to do with the case for six conferences. This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his blog about what is going on with the case.

The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case.  Calling for the record is also an odd and unusual step for the justices to take.

What does all this mean? The only thing we can say for certain is that at least one of the justices is taking a very close look at CLS’s cert petition. A case can’t be pulled from the orders list without an affirmative act by the Court. Moreover, as Jordan notes, there are some unusual aspects to the case. The law school shifted its interpretation of its own policies in the middle of the litigation, arguing that its policy now requires each student group to be open to any student — a stance that deprives every student group of the most basic free-association rights.

Every option is on the table for the high court. It can deny the cert petition, deny it with a dissent, summarily reverse the Ninth Circuit, or grant cert and schedule the case for oral argument. We don’t know what will happen, but we do know that the critical issue of student free association is front and center on the radar screen of at least one justice. Stay tuned.


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