Phi Beta Cons

The Right take on higher education.

An Issue Moves Toward Resolution


Friday afternoon, a judge in the Southern District of California issued a long-delayed ruling against a collection of Christian student groups, holding that San Diego State and Long Beach State universities could impose religious and sexual orientation non-discrimination rules on campus religious organizations. In other words, a university can force a Christian group to open its doors to non-Christian members, and prevent the group from imposing Bible-based rules of sexual conduct on its members or leaders.

This ruling, while disappointing (full disclosure: the Alliance Defense Fund Center for Academic Freedom, with which I am involved, represents the plaintiffs), is not unexpected. Since the San Diego State case was first filed in 2005, a federal court in San Francisco ruled against the Christian Legal Society in a similar case at Hastings College of Law, and the Ninth Circuit issued an unfavorable opinion in a case that raised many of the same issues in a high-school context. In fact, given these developments, it would have been surprising for a California judge to have ruled differently.

So far, the Ninth Circuit (and consequently the district courts within the Ninth Circuit) is out of step with circuit courts elsewhere. The Seventh Circuit has decisively ruled in favor of student free association, and the Eleventh Circuit granted a Christian fraternity’s request for an injunction against the University of Florida’s nondiscrimination policy (the case has been argued on the merits, and we are awaiting a final decision).

Early next month, the Ninth Circuit will hear the Christian Legal Society’s appeal in the Hastings case. If the Ninth Circuit follows the Seventh Circuit’s lead (and if the Eleventh Circuit follows suit), then student free-association rights will be virtually assured. If either the Ninth Circuit or the Eleventh Circuit rules for the university, then a classic “circuit split” will exist, students will enjoy different levels of constitutional rights depending on the location of their club, and Supreme Court intervention will be more likely.

Either way, a vital issue that goes to the heart of student liberty on campus is moving (at glacial speed) to a definitive conclusion.


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