Freedom of Association at Public Universities

Golden Gate bridge in the fogStan­ford law pro­fes­sor Michael McConnell recent­ly rep­re­sent­ed the Chris­t­ian Legal Soci­ety (CLS) in their case against San Fran­cis­co’s UC Hast­ings Col­lege of The Law before the U. S. Supreme Court. The CLS lost that case on a 5–4 vote (read the rul­ing). I’ve asked Pro­fes­sor McConnell to answer a few ques­tions about the rul­ing, and he has gra­cious­ly agreed to do so and to allow me to pub­lish his answers online.

Q: The court ruled 5–4 in favor of UC Hast­ings “all-com­ers” pol­i­cy. Was this a broad rul­ing affect­ing Chris­t­ian groups at pub­lic uni­ver­si­ties gen­er­al­ly or a rel­a­tive­ly nar­row rul­ing?

A: It was the most nar­row rul­ing pos­si­ble. The all-com­ers pol­i­cy on which the Court ruled is exceed­ing­ly unusu­al. The Court declined to rule on the more typ­i­cal sit­u­a­tion, where the school applies reli­gious nondis­crim­i­na­tion rules to reli­gious orga­ni­za­tions, thus deny­ing to reli­gious groups the free­dom enjoyed by most expres­sive orga­ni­za­tions of choos­ing their own lead­ers. The Court did not even rule on the all-com­ers pol­i­cy as actu­al­ly applied at Hast­ings, but only on an abstract and hypo­thet­i­cal ver­sion that applies across the board to all orga­ni­za­tions.

Q: So let’s say I’m a Chi Alpha or an Inter­var­si­ty direc­tor at some pub­lic uni­ver­si­ty. Should I be dis­cour­aged or alarmed?

A: You should be con­cerned, and try to work with your uni­ver­si­ty to pre­vent infringe­ments on your rights, because the Court’s deci­sion pro­vides no help to you.

Q: Did any parts of the rul­ing sur­prise you?

A: In the course of reject­ing CLS’s argu­ment, the Court gave a sur­pris­ing­ly nar­row inter­pre­ta­tion to free speech (pub­lic forum) prece­dents that I thought were firm­ly estab­lished law.

Q: You have no doubt read many blog posts, op-eds and news arti­cles sum­ma­riz­ing both the case and the court’s deci­sion. Are there any mis­un­der­stand­ings you would like to cor­rect?

A: Too many to list.

In case you’re won­der­ing, this case only affects pub­lic uni­ver­si­ties. Our min­istry at Stan­ford won’t be direct­ly affect­ed.

You can read lots of sum­maries of the ver­dict. A few of the more inter­est­ing ones:

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