Monday, August 23, 2010

QNOC Digest 2010.07.04

Queer News On Campus [QNOC] Articles Digest
For the week ending 2010.07.04

Brought to you by the Consortium of Higher Education LGBT Resource Professionals.

Archives of the QNOC Digest can be found at

Reminder: If you come across articles that should be included in the digest, please email a link to the article to

1. UCSB Kiosk - To be a gay, lesbian, or bisexual student
2. The Chronicle (Duke) - Anti-gay graffiti on bridge re-ignites DCR controversy
3. Today @ Colorado State - CU regents make statement against transgender discrimination
4. The Chronicle of Higher Education - New Policies Accommodate Transgender Students
5. The Washington Post - Gay rights group "disappointed" in McDonnell college board appointment
6. KHOU - Transgender HCC student said he was victim of campus hate crime
7. Houston Chronicle - HCC student is charged in campus attack: Victim says it should be treated as a hate crime
8. The Miami Herald - Florida State University's Board of Trustees expected to discuss nondiscrimination policy
9. Inside Higher Ed - EXTRA: Anti-Bias Rules Upheld
10. Mercury News - High Court favors UC law school over anti-gay Christian student group in constitutional clash
11. The Chronicle of Higher Education - Supreme Court Decision on Law School's Anti-Bias Policy May Have Limited Impact
12. Inside Higher Ed - New Venue for Anti-Bias Debate
13. The New York Times - Justices Rule Against Group That Excludes Gay Students
14. The New York Times - The Court: Denying Government Support for Intolerance
15. The New York Times - Court: Christian Group Can't Bar Gays, Get Funding
16. The Chronicle of Higher Education - Hastings and Supreme Court Ideology
17. The Chronicle of Higher Education - Ruling Is Unlikely to End Litigation Over Policies on Student Groups

1. UCSB Kiosk, June 20, 2010
2145 Student Resource Building
To be a gay, lesbian, or bisexual student
By Gerardo Zepeda

I arrived at UCSB convinced that I would be able to live my life as "straight." I had already been confused about my sexuality for several years. I grew up learning that anything gay was wrong, and in essence, that I was wrong. It was hard to deal with the fact that I was queer, and at UCSB I found the support I needed to finally accept it.
For the first time, I felt that I had more freedom to explore my sexuality, and what it meant to me. I had to come out to myself and accept that before I could move on. My first step after that was to find a place where I could meet people who could help me. Over the summer I worked in the UCen and found out about the Resource Center for Sexual and Gender Diversity (RCSGD). Here for the first time, I felt comfortable talking about my sexuality. Through the RCSGD I learned about programs and events throughout the year; when looking for information or resources, the RCSGD is the best place to go.
Some people are at first surprised to learn that many Lesbian, Gay, Bisexual, Transgender, Transsexual, Intersex, Questioning, Ally and other peoples now use "queer" as an all-encompassing term for the community. Historically the word was used as a derogatory remark; the queer community has since reclaimed it as a positive, politically charged and empowering term. Coming out is a difficult thing to do, and no one should force you to do it. Throughout our lives society has told us that being queer is wrong. We are influenced by everything around us, such as cultural, religious, and economic backgrounds. Coming out is a personal decision; you have to make it for yourself according to what and when you think is right for you.
I was at first scared to be out on campus. I knew that not everyone on campus would be accepting or supportive of queer people, and queer issues. I knew there would be some disadvantages in doing so, but I also knew there were positive aspects. The queer community on campus is fairly easy to find, and incredibly welcoming. Not only will you meet a lot of new people, but also find a lot of the support you need. The coming out process is not easy, but there are a lot of resources on campus to help you through it. The RCSGD has a library, videos, a lounge, and year-long programming and they have a great staff that is always there to answer your questions. It was through the Resource Center that I learned about various organizations, events, and groups on campus such as the Queer Student Union (QSU), a social and political group on campus made up of students, staff, faculty and the community. I also became highly involved, and committed to Queer People of Color (QPOC), an inclusive student, staff, and community organization that recognizes racial, gender, and class inequalities and strives to support the specific cultural needs of queer people of color on the UCSB campus through educational, social, and political events.
There are other departments on campus supportive of the queer community; the Women's Center has a library, a lounge, and diverse programs and events helpful to queer students. Counseling Services offers queer and queer friendly counselors that can help you with anything you might be going through, as well as discussion groups for gay, bisexual and questioning men; lesbian, bisexual and questioning women; and trans people. The MultiCultural Center (MCC) has a lot of diverse and interesting films, performances, and events throughout the year as well as a study lounge. There is a residential interest hall called the "Rainbow House" that offers housing, programs, events, and support for all Queer people and their Allies on campus. A lot of people feel nervous about attending groups, and meetings, or coming to the RCSGD for information. Don't feel threatened; most of these places offer confidentiality and support. In the spring, the queer student groups, in collaboration with the RCSGD and other organizations on campus, put on Pride Week--a celebration of queer life. There are a lot of activities and events during this week and the information for Pride Week is always available at the RCSGD.
Dealing with your sexuality and coming out can be a very difficult thing to do; but remember that you don't have to do it alone. There is a community here at UCSB that is always willing to help, and knows what you are going through.

2. The Chronicle (Duke), June 23, 2010
301 Flowers Building, 404 Chapel Drive, Durham, NC 27708
Anti-gay graffiti on bridge re-ignites DCR controversy
By Joanna Lichter

Anti-gay graffiti that appeared on the East Campus Bridge near the start of the summer session sparked further controversy between the Duke College Republicans and its former members, who were recently embroiled in a discrimination debate.

The graffiti was directed at former College Republicans Chair Justin Robinette, a rising senior, who claimed in April he was impeached from his position because he is gay. Following April’s incident, the Duke Student Government Judiciary ruled that the College Republicans did not discriminate against Robinette in their decision.

“Recent intimidation tactics make it hard for me to stay silent, even though I and my officers are being threatened to [do so],” Robinette wrote in an e-mail Monday. “I think what has been perpetrated by members of the DCR against officers who resigned and who are supporting me is inching beyond the jurisdiction of student government.” Robinette claimed he and other former members have received death threats, intimidating Facebook messages and have been cyber-stalked and harassed.

Robinette said he has repeatedly requested intervention from University administrators, adding that he was denied meetings with President Richard Brodhead.

Robinette declined to speak directly with The Chronicle and responded via e-mail, adding that he was advised to have all conversations with media “documented.”

Vice President for Student Affairs Larry Moneta said it is unclear when the vandalism occurred, but that the University dispatched employees from the Facilities Management Department to paint over the graffiti 90 minutes after he was notified of the incident.

“As far as the graffiti is concerned, it doesn’t appear that we have much hope of discovering who did it,” Moneta wrote in an e-mail June 15. “I made the decision to have it painted over.... My effort at this time is focused on support to the student.”

The East Campus Bridge graffiti appeared to read “Lyning F—g Robinet,” “DCR = Righteous” and “Get AIDS in Hell.”

Duke University Police Department did an initial investigation of the incident, but it did not produce any suspects, DUPD Assistant Chief Gloria Graham wrote in an e-mail June 15. The case has since been turned over to Student Affairs, she added.

Normally, the University does not interfere with hate speech on the East Campus Bridge, but it does paint over harmful statements when they are directed at a specific student, Moneta said.

“Under the bridge policy there’s a distinction between free expression, that however hateful, harmful or inappropriate it is—as long as it’s free expression— it will stay there as long as its not directed at an individual,” Moneta said Monday. “If it’s threatening or harassing and directed at an individual, then the University will get rid of it.”

The language of the University’s bridge painting policy, however, leaves room for considerable debate. Under the policy, groups and individuals from Duke can express their opinions without restriction, except by “legal standards.” The specific legal standards are not defined within the policy.

The College Republicans have denied all accusations indicating that members of the club were the perpetrators of the vandalism. Chair of the College Republicans Carter Boyle, a rising senior, said the club was slandered by the appearance of the College Republicans’ initials in the graffiti.

“The Duke College Republicans decry both the usage of offensive and derogatory language and the slander of their organizational title in this abuse of university property,” reads the formal response released by the Executive Board of the College Republicans. “It is the board’s hope that the greater Duke community will join the Duke College Republicans in a commitment to remove slanderous and hateful language from the vocabulary of this community by following the courses of action laid down by our mutual peers and colleagues serving in the DSG.”

Cliff Satell, former College Republicans vice chair and a rising senior, filed a complaint with the Undergraduate Conduct Board last week. His complaints referred to the bridge graffiti, an e-mail he received from a College Republican that he felt was blackmail and vandalism with the word “f—got” that appeared in the Spring on the dormitory name tag of rising senior Matthew Leonard, former College Republicans vice chair.

Dean of Students Sue Wasiolek said reports of personal threats and hate speech are typically uncommon at Duke, but that the University takes such incidents very seriously.

“I would say any kind of hate speech is a major concern for the institution, and it’s very difficult to know whether there has been an increase,” Wasiolek said. “I can say that within the last several months there seems to be an increase in the reporting of hate speech, and whether that means there’s an increase in the actual occurrence is hard to say.”

Rising junior Bridget Gomez started a Facebook group petitioning the administration to take action against the hate speech and DCR. The group has 258 members as of 9 p.m. Wednesday, most of whom are Duke students.

Wasiolek said University officials are still deciding how best to respond to the incidents both during the summer and in the Fall.

3. Today @ Colorado State, June 25, 2010
271 Aylesworth SW, Colorado State University, Fort Collins, CO 80523-6025
CU regents make statement against transgender discrimination

Several students and staff members spoke to the CU Board of Regents Friday outlining incidents transgender discrimination on campus.
Current CU policy prohibits discrimination based on sexual orientation, but Hillary Montague-Asp, co-chair of the Gay, Lesbian, Bi-sexual, Transgender Student Advisory Board, says that is not enough.

"Transgender has nothing to do with sexual orientation," Montague-Asp said. "Our main focus is that gender expression and gender identity are completely different subjects from sexual orientation and therefore should be defined separately."

The board passed a resolution sending a message to its campuses and the community against the discrimination of all people, including transgender people.

4. The Chronicle of Higher Education, June 27, 2010
1255 Twenty-Third St, N.W., Washington, D.C. 20037
New Policies Accommodate Transgender Students
By Alexandra Tilsley

Amanda Stevens came out to her classmates before she knew any of their names. And it wasn't intentional.

At her orientation at the State University of New York at Albany, incoming students were told to divide by gender. Ms. Stevens, a transgender woman who identifies as female but is physically male, chose to go with the females. But in the middle of the session, one of the presenters turned to her and asked if she had made a mistake.

"Eventually, I had to out myself," Ms. Stevens says. "It was kind of embarrassing because, to this day, people in my class who I won't have remembered will say, 'Oh, you were in my orientation.'"

For many universities, accommodating transgender students is the next big challenge in becoming truly inclusive. As information about gender expression becomes more readily available, the number of people identifying as transgender at an early age has grown and, increasingly, students go to college already openly transgender. "The climate is changing," says Genny Beemyn, director of the Stonewall Center at the University of Massachusetts at Amherst and an expert on transgender issues.

Already almost 300 colleges have updated their nondiscrimination policies to include gender identity and expression, and more than 50 campuses have gender-neutral housing. But movement is still slow and scattered—often colleges wait until a student speaks out before discussing the issue—and even those that are ahead of the curve still haven't found all the answers.

"I don't think anyone has it all covered," Genny Beemyn says. "Every institution has a ways to go in terms of providing support and services, though there are definitely some colleges that have been at the forefront."

First Steps
Albany eventually stopped separating students by gender at orientation after Ms. Stevens brought the issue to administrators' attention. But Ms. Stevens and other transgender students still have to request special accommodations in the dormitories, and they still have to e-mail professors individually to request that they use the students' preferred names and pronouns.

The University of Vermont is one of the only colleges that has found an elegant way for students to share their preferred names and pronouns with professors. The university created a software patch for its student-information system that puts students' preferred names and pronouns on class rosters and identification cards but retains their legal names on financial-aid and medical forms. Previously, students who wanted to be called by names different from their legal ones had to approach the registrar or their professors and explain. Essentially, they were forced to out themselves as transgender.

Vermont began discussing the change in 2003, after a student wrote a thesis on ways the university could become more transgender-friendly and specifically cited the student-information system. The proposal remained low on the priority list, however, until faculty members began voicing concerns, embarrassed when they accidentally called a transgender student by the wrong name.

It took six months and more than $80,000 in staff time to create the patch, but Keith P. Williams, the university registrar, says the investment was worth it. Already more than 700 students have taken advantage of the new capability. Though most just use it to list a nickname, such as "Bob" instead of "Robert," Mr. Williams says he knows of at least seven cases where the system was used by a transgender student.

"The customer-service aspect of this is immense," says Dot V. Brauer, director of Vermont's Lesbian, Gay, Bisexual, Transgender, Questioning and Ally Services.

Mr. Williams is now working to make the software code available to other colleges that use the same software, SunGard's Banner system. He has spoken with SunGard about standardizing the preferred-name option, and is looking into distributing his code to interested colleges at no charge.

Vermont is now considering gender-neutral housing as well, a common first step for colleges trying to become more transgender-inclusive. In the past year, 18 institutions, including Connecticut College and Northeastern University, have passed or effected gender-neutral housing policies, according to the National Student Genderblind Campaign.

"There's only housing for men and women, and for a transgender person that can be a very uncomfortable experience, having to live with someone they don't identify with," says Emilia Dunham, a graduate of Northeastern who helped establish gender-neutral housing there.

When she arrived at Northeastern, Ms. Dunham says, the university would allow students to live with someone of the other sex only if they had had reassignment surgery. She began working with student leaders to construct a proposal that would allow men and women to live together, hoping to make housing more comfortable for transgender students and gay students.

The issue had been brought up before, Ms. Dunham says, but never made it as far as a formal proposal. Administrators ultimately approved the plan, and students can now choose to live with someone of the opposite gender through the normal room-selection process. (First-year students, however, must contact the housing office to request gender-neutral housing.)

Gender-neutral housing policies vary by college. Some designate a specific hallway or wing, while others integrate gender-neutral rooms throughout their dorms. Most offer the option only to upperclassmen, because of the difficulties of pairing students of different genders who do not know one another. Some, including Connecticut College, will reassign first-year students to gender-neutral rooms after they have had a chance to meet their classmates and find new roommates.

In devising gender-neutral housing policies, most colleges consider both transgender students and those who simply want to live with a friend of the opposite sex. Occasionally such proposals face resistance from administrators, parents, or students who are concerned about couples living together, but once people understand the impetus for gender-neutral housing, they tend to favor the idea.

"For some people, it was a new concept," says Amy P. Gauthier, director of Residential Education and Living at Connecticut College. "Once we had more conversations about it, people became more open to it."

'When Values Clash'
That's not to say that every proposed transgender-inclusive policy is readily accepted.

Ixchel Rosal, director of the Gender and Sexuality Center at the University of Texas at Austin, says the center has faced some resistance, mostly from hesitant parents and administrators, as it pushes for transgender-inclusive policies. The university only recently added gender identity to its nondiscrimination clause, and it is looking into gender-neutral bathrooms and housing.

"We're a public institution, so how do you create these public spaces that are welcoming and accommodating to all without anyone feeling their perspective and their values are not being honored?," Ms. Rosal asks. "When values clash, that becomes an obstacle."

Questions of values can also arise at single-sex colleges, which face special challenges in areas like student life and admissions as they grapple with how to be inclusive while remaining dedicated to their core missions.

At other colleges, money is the issue. Some have balked at the cost of changing a student-information system or adding sex transitions to their student health-care coverage.

But one of the biggest obstacles for colleges is that they are entering uncharted territory.

Until 10 years ago, Genny Beemyn notes, no one had discussed the idea of gender-neutral housing. Gender-neutral bathrooms were similarly rare, and colleges were just beginning to integrate sexual orientation into their nondiscrimination policies, never mind gender identity.

There are still a number of unknowns; specifically, administrators and students alike have been wrestling with how to make both Greek organizations and athletics—two traditionally sex-divided activities—welcoming to transgender students.

Shane L. Windmeyer, director of Campus Pride, an online resource for LGBT students, contends that membership in a fraternity or sorority should be based on a feeling of shared brotherhood or sisterhood.

"It is about the individual member buying into wanting to be a brother or wanting to be a sister," Mr. Windmeyer says. "It's not about the biological sex of the person wanting to be a brother or a sister."

But he says that few of the national fraternity and sorority organizations have taken up the issue, and that some transgender students avoid fraternities and sororities because they perpetuate the gender binary.

There are no real conclusions about how to accommodate transgender students in athletics, either. The NCAA requires that students compete based on their legal gender, usually determined by their sex. But when a female begins transitioning into a male, she often ends up excluded because she has to take hormones that can be considered illegal drugs under NCAA rules.

But for many colleges, discussions about Greek life or athletics remain a ways down the road.

At Albany, for instance, the top priorities remain adding gender-neutral bathrooms and updating the university's nondiscrimination clause. Plans could change, of course, and the university intends to continue responding to students' concerns—just as it did with its orientation.

"I don't think I ever would have thought about that, except a transgender student said, 'That was an uncomfortable situation for me to be in,'" says Christine A. Bouchard, vice president for student success. "It just makes it so much more of an educational process for all of us to hear from these students."

5. The Washington Post, July 1, 2010
1150 15th St. NW, Washington, DC 20071
Gay rights group "disappointed" in McDonnell college board appointment
By Rosalind Helderman

The Chairman of the Board of Equality Virginia, the state's gay rights group, is taking issue with one of Gov. Bob McDonnell's appointees to the Virginia Tech Board of Visitors.

McDonnell Thursday appointed John Rocovich, chairman of a Roanoke lawfirm, to the university's governing board. Rocovich had previously served on the board under Gov. Jim Gilmore (R), during a time when the board repealed the school's policy barring discrimination on the basis of sexual orientation.

That issue has returned to the forefront in recent months, after Attorney General Ken Cuccinelli (R) wrote a letter to each public university, asking them to rescind such policies.

The universities have responded by reaffirming those policies, and McDonnell issued Executive Directive No. 1, prohibiting discrimination in the state workforce.

Mark Board, chair of the Board of Equality Virginia, said the following about Rocovich's appointment in a statement:

Equality Virginia is disappointed that the Governor would look to the past in making board appointments and choose to reappoint John Rocovich to the Virginia Tech board," said Mark Board, chairman of the group in a statement today. "During Mr. Rocovich's tenure as Rector of the VA Tech Board in 2003, he led the board to revoke the University's commitment to affirmative action and to repeal the University's prohibition against discrimination based on sexual orientation. When his term expired, Governor Warner replaced him on the Board, and the new board reversed these actions. Given this past history, the Governor's decision to reappoint Mr. Rocovich to the Tech Board sends a negative message to the Hokie nation about the sincerity of the Governor's commitment to the enforcement of his executive directive #1 and his commitment to ensure Tech's GLBT employees and students are protected from discrimination.
Rocovich could not be reached Thursday. We've asked the governor's office for a response and we'll let you know what they say.

UPDATED: McDonnell spokeswoman Stacey Johnson responded, ""The governor has appointed a diverse group of Virginia leaders to these positions. Mr. Rocovich is a leader in the business and education community. The governor believes this makes him an excellent choice to serve the Commonwealth and Virginia Tech on its board of visitors."

6. KHOU, June 25, 2010
KHOU-TV Channel 11, 1945 Allen Parkway, Houston, TX 77019
Transgender HCC student said he was victim of campus hate crime
By Ron Trevino

HOUSTON -- A local transgender man said he was recently the target of a hate crime on the Houston Community College campus.
Lance Reyna was born Valerie Reyna, but says he is now physically and legally a man.
This past Tuesday, Reyna said he was attacked in a restroom at HCC’s fine arts building.
At first, he thought it was a friendly prank.
"He puts me in a headlock," said Reyna. "I don’t think anything of it because I hear a familiar voice. "He says, ‘Hey queer,’ reminds me of one of my friends. So, I insisted it was one of my friends in my mind. All of a sudden I see a little razor, like a knife."
That’s when Reyna knew it was neither a friend or a prank. Reyna said the attacker punched and kicked him in the head, leaving him with a concussion and no wallet.
It was the attacker’s comments that made him think he was the target of a hate crime.
"For him to call me a queer, you’re making it personal instead of just attacking me," said Reyna.
A spokesman for HCC said the school is working with police to try to find the attacker.
"I’m still a human being," said Reyna. "If society is gonna be prejudiced against me, it makes me feel like a second or third class citizen."

7. Houston Chronicle, July 1, 2010
P.O. Box 4260, Houston, TX 77210-4260
HCC student is charged in campus attack: Victim says it should be treated as a hate crime
By Allan Turner

A Houston Community College student was charged with aggravated robbery on Wednesday in connection with the June 22 attack on campus transgender activist Lance Reyna, officials said.
Accused of the first-degree felony was Terrance Calhoun, 22, who was enrolled in summer composition and mathematics classes, HCC spokesman Curtis Doolan said. If convicted, Calhoun, who allegedly confessed to the robbery, faces a maximum possible sentence of life in prison.
Reyna, 29, a political science student, suffered a concussion when he was attacked in the men's restroom of the Central Campus fine arts building.
'A slight sense of relief'
Reyna said he was washing his hands when a man emerged from a bathroom stall, placed a knife to his throat then knocked him to the floor and beat and kicked him. His wallet, containing bank cards and personal identification, was stolen.
"I'm still trying to process this," Reyna said hours after Calhoun was arrested on campus. "I feel a slight sense of relief, but I still believe I was targeted. ... I won't feel justice was done until he is convicted of a hate crime."
Harris County District Attorney's spokeswoman Donna Hawkins said Calhoun likely will not be prosecuted for a hate crime because proving hate would pose an added challenge for prosecutors and, even if a conviction were obtained, punishment would not be increased.
Punishment phase issue?
The aggravated robbery charge, she said, already provides the potential for the most severe punishment.
The possibility that hate motivated the crime might be introduced in a trial's punishment phase, she said.
Doolan said Reyna's cooperation with campus police, especially his reports concerning the use of his stolen credit cards to make purchases, assisted police in their investigation.
Reyna, who was called upon Wednesday to identify the suspect in a lineup, said his wallet and driver's license were returned.
The victim, who has been active in transgender and other gay and lesbian organizations, said he still suffers pain from his injuries.
"I don't feel safe on campus," he said. "Just looking at the building triggers my memories. I deal with night terrors every day."

8. The Miami Herald, June 25, 2010
One Herald Plaza, Miami, FL 33132
Florida State University's Board of Trustees expected to discuss nondiscrimination policy
By Steve Rothaus

News release from Florida State University Student Government:

June 25th, 2010

Tallahassee, Florida- Since the 2004 academic year, students across The Florida State University campus have rallied and lobbied the administration in hopes that the University would adopt a basic non-discriminatory policy. If adopted, the policy would seek the protections of all students, staff, and faculty against discrimination based on sexual orientation or gender identity.

Students have since manifested their desire for the policy adoption by the passage of resolutions at the Student Government Association, to newspaper articles published on the campus newspaper. Although all of these tactics have always sought out the attention of the University’s administration, students have faced disappointment year after year.

This year with a new administration, Student Body President Dustin Daniels has sought out to put the issue back on the table. With support from student groups, and various entities of the Student Government, The Florida State University’s Board of Trustees will be holding a meeting today June 25, 2010 where a vote on the adoption of the non-discriminatory policy is expected.

If passed, the adoption of the non-discriminatory policy would be counted as a victory for student groups and campus activist who have long sought its passage. In addition, The Florida State University would join the ranks of other universities across the state and country with similar policies.

The Board of Trustees meeting will take place at the Florida State Conference Center on 555 W. Pensacola St. Student groups are expected to be outside awaiting the result of the final vote.

9. Inside Higher Ed, June 28, 2010
1320 18th Street NW, 5th Floor, Washington, D.C. 20036
EXTRA: Anti-Bias Rules Upheld
By Scott Jaschik

WASHINGTON – The Supreme Court ruled today, 5-to-4, that public colleges and universities may require religious organizations seeking recognition or funds as campus groups to comply with anti-bias rules.

The ruling came in a lawsuit by the Christian Legal Society, which challenged the anti-bias rules of the Hastings College of Law of the University of California. The Hastings policy bars discrimination based on sexual orientation and the Christian Legal Society bars gay people from becoming members. Hastings has argued – with backing from many in public higher education – that state universities have an obligation to adhere to strict anti-bias rules. But the Christian Legal Society – with backing from many religious groups – has argued that forcing it to comply with anti-bias rules amounts to infringing on its First Amendment right to freedom of religion.

The Supreme Court's decision, by Justice Ruth Bader Ginsburg, found that the law school's policy was "a reasonable, viewpoint-neutral condition on access" that did not raise First Amendment issues in the way the Christian Legal Society argued.

The opinion explicitly rejects the argument of the Christian Legal Society that a public university has no business limiting its ability to be recognized and to apply its own rules to membership. "CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides," the decision says. "Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership."

A dissent, by Justice Samuel Alito, blasted the decision, saying that it set a principle of "no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning."

Many public colleges and universities have anti-bias policies similar to those of Hastings, so a ruling for the Christian Legal Society would have forced changes at many institutions. The issue has been particularly intense at public law schools (where the Christian Legal Society has sought recognition) and at undergraduate institutions with Greek systems (when Christian fraternities have sought recognition). Some public colleges and universities – faced with legal threats by supporters of the Christian Legal Society – have changed their policies to exempt religious groups, and those institutions could conceivably now reconsider.

Marc Spindelman, a constitution law professor at Ohio State University, said that the Supreme Court's decision "charts a course for other public law schools to follow in defending their own non-discrimination policies." He said that the opinion "may embolden public law schools that granted Christian Legal Society groups a unique right to discriminate to reconsider those decisions. The Court minced no words when it said the Christian Legal Society was asking for ‘a preferential exception.' "

But the Alliance Defense Fund, which has backed the Christian Legal Society in the case, issued a blog post expressing hope that the decision may be based in large part on policies "unique to Hastings," expressing hope that there may be further review of some key claims. David French, a lawyer for the ADF, said: "This is a disappointing decision but one that does not come close to settling core constitutional issues on campus. "

In the Hastings case, lower courts backed the law school, noting that its rules were applied to all groups equally and that they didn’t prevent the Christian Legal Society from meeting on the campus – only from some privileges reserved for recognized campus groups. Other federal courts, however, have backed the Christian Legal Society – most notably in a dispute at Southern Illinois University.

Inside Higher Ed will have full coverage of the decision tomorrow. For those seeking additional background today, all of the briefs in the case may be found here.

10. Mercury News, June 28, 2010
750 Ridder Park Drive, San Jose, CA 95190
High Court favors UC law school over anti-gay Christian student group in constitutional clash
By John Simerman

Public universities can refuse to recognize student groups that discriminate in their membership, the United States Supreme Court ruled Monday in a case between a University of California law school and a Christian student group that bars those who engage in "unrepentant homosexual conduct" or fail to sign a pledge of faith.
A 5-to-4 majority found that UC's Hastings College of the Law in San Francisco could legally reject a chapter of the Christian Legal Society under the school's "all-comers" anti-discrimination policy that requires recognized student groups to allow any student to join. The recognized groups gain access to campus meeting facilities, e-mail and bulletin board privileges and up to $5,000 in travel funds paid from student activity fees.
Christian Legal Society, or CLS, argued that the school violated the group's constitutional right to free speech, expressive association and free exercise of religion when Hastings rejected it in 2004. The policy, it contended, was just a convenient excuse.
The high court split largely along ideological lines, with Justice Anthony Kennedy swinging to the court's liberal side. For the majority, Justice Ruth Bader Ginsburg wrote that the Hastings policy is "a reasonable, viewpoint-neutral condition" for recognition.
"In requiring CLS — in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations."
Justice Samuel Alito called the majority opinion "deeply disappointing" in a dissent joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. Alito sharply criticized the Hastings policy as "a pretext to justify viewpoint discrimination."
"The proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,' " Alito wrote. "Today's decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning."
But the majority rejected the idea that the action deprived the Christian group of any rights.
"The court is saying, 'We're not interfering with your organizational rights,'" said law professor Steven Green, director of the Center for Religion, Law & Democracy at Willamette University.
"This is unlike the Boy Scouts case from years ago where the Boy Scouts had a gun to its head, going to be forced by the State of New Jersey to admit gays. CLS can still be CLS. It just may not be able to receive the government benefit."
Bruce Simon, Hastings board chairman, called Monday's ruling "a major victory" and defended the policy.
"The whole school is premised as a public institution on diversity and allowing an open forum," he said. "Hastings has done nothing to step in the way of (CLS) meeting and fulfilling its goals."
Kim Colby, senior counsel with the Christian Legal Society, noted that the Hastings policy requires an all-black student group, for instance, to admit a Ku Klux Klan member — as Leo Martinez, Acting Chancellor and Dean of the college, acknowledged in a recent interview.
"What's troubling is it's so blatantly unconstitutional, but you have the liberal wing of the court willing to sacrifice a lot of the First Amendment to uphold a policy that even its defenders admitted was weird and not really a policy of common sense," Colby said.
The high court did not rule on whether Hastings enforced its policy in a nondiscriminatory way, remanding that issue to the Ninth Circuit. Michael McConnell, a former federal judge who argued the case for CLS, said the group planned to show that Hastings does not enforce its policy across the board.
"The only thing I would really predict is, this is going to lead to a lot more conflict, tension and litigation," said McConnell, director of the Stanford Constitutional Law Center. "The court had an opportunity simply to say, every group has a right to participate and a right to control their own leadership."
One constitutional scholar said the ruling could be interpreted to give government wide berth to withhold benefits — including tax breaks for nonprofit groups — from those that don't follow an anti-discrimination policy.
"I don't think (the ruling itself) has much of an effect. They're relatively modest benefits," said UCLA law Professor Eugene Volokh, who agreed with the outcome. "When it comes to other things, especially tax benefits ... that could be a big deal."
The case presented the Supreme Court with a clash of two potent principles, said William Marshall, a University of North Carolina-Chapel Hill law professor.
"One is our nation's commitment to anti-discrimination policy, and the other is our commitment to have different kinds of groups that have different kinds of beliefs," he said. "These are very, very difficult cases when they come."
Contact John Simerman at 925-943-8072.

11. The Chronicle of Higher Education, June 28, 2010
1255 Twenty-Third St, N.W., Washington, D.C. 20037
Supreme Court Decision on Law School's Anti-Bias Policy May Have Limited Impact
By Peter Schmidt

A bitterly divided U.S. Supreme Court held Monday that a California public law school did not violate the First Amendment in denying official recognition to a Christian student group that effectively excluded homosexual students from membership based on their beliefs and behaviors. But the parties involved in the case, as well as experts on student organizations, disagree over whether many colleges have policies similar enough to the one at issue in the case to be affected by the decision.

In its 5-to-4 ruling, the Supreme Court held that the University of California's Hastings College of the Law acted reasonably, and in a viewpoint-neutral manner, in refusing to officially recognize and give funds to a campus chapter of the Christian Legal Society because the group refused to abide by the school's requirement that student groups open their membership to all.

Justice Anthony M. Kennedy joined the court's liberal wing in rejecting the Christian Legal Society's argument that the policy infringed on the student group's First Amendment freedoms of expression and association. The majority opinion, written by Justice Ruth Bader Ginsburg, declared that it is "hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers," although it left open the possibility that the lower courts may still determine that the policy has been inconsistently applied.

"Hastings, caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership," the majority opinion says.

In a harshly worded dissent, the four other justices on the court denounced the majority opinion as resting on the principle of "no freedom of expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

The minority opinion, written by Justice Samuel A. Alito Jr., called the court's decision "a serious setback for freedom of expression in this country" and accused the majority of selectively interpreting the factual record to ignore evidence that Hastings had discriminated against the Christian student group based on its views. "The court's treatment of this case is deeply disappointing," and its decision "arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups," the minority opinion says.

Reactions and Reach
The case had been widely watched partly because similar conflicts have popped up at a long list of other colleges where students have tried to set up Christian Legal Society chapters. Although the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of Hastings in the dispute before the Supreme Court, the U.S. Court of Appeals for the Seventh Circuit had held that a similar policy at Southern Illinois University at Carbondale infringed on Christian Legal Society's freedom of expressive association, and some colleges had carved out exceptions to their antidiscrimination policies in response to similar challenges from religious groups.

Leo Martinez, who was named as the defendant in the lawsuit as the Hastings law school's acting chancellor and dean, issued a written statement on Monday welcoming the court's ruling as validating a policy "rooted in equity and fairness." His statement said the law school's intent "has always been to ensure the leadership, educational and social opportunities afforded by officially recognized student organizations are available to all students attending public institutions."

The Supreme Court's decision was similarly welcomed by Edris W.I. Rodriguez, a spokesman for Hastings Outlaw, a registered organization for gay, lesbian, and bisexual Hastings law students that had intervened as a defendant in the case. In an e-mail message, he said, "We are pleased that no student will be forced to have his or her student-activity funds support an organization in which he or she cannot participate."

But Michael W. McConnell, a lawyer who argued the Christian Legal Society's case before the Supreme Court, predicted that the ruling actually would have a limited impact on colleges, because, he argued, few actually have the sort of all-comers policy for student groups that the majority ruled on.

"The policy that the Supreme Court addressed is highly abstract and hypothetical," said Mr. McConnell, director of the Stanford Law School's Constitutional Law Center. He expressed confidence that the Christian Legal Society would be able to demonstrate in the lower court that Hastings has enforced its policies selectively, in a manner that hurts religious groups.

The Alliance Defense Fund, which helped represent the Christian Legal Society members seeking recognition on campus, similarly predicted that Monday's decision would have limited impact because few other institutions have exactly the same policy. In a written statement, Gregory S. Baylor, the group's senior legal counsel, said the Hastings policy requires the Christian Legal Society to allow atheists to lead Bible studies or the College Democrats to allow the election of Republican officers. "We agree with Justice Alito in his dissent that the court should have rejected this as absurd," Mr. Baylor said.

Among the organizations that had submitted friend-of-the court briefs in support of the Christian Legal Society, the Foundation for Individual Rights in Education on Monday issued a statement predicting the court's ruling will lead colleges to withdraw recognition from devoutly religious groups. It called the ruling "a loss for diversity and pluralism on campus, not a win."

By contrast, the American Civil Liberties Union, which submitted a friend-of-the-court brief supporting the law school, issued a statement praising the decision. "Today's ruling sends a message that public universities need not lend their name and support to groups that discriminate," its legal director, Steven R. Shapiro, said.

Justice Ginsburg was joined in the majority opinion by Justices Kennedy, Stephen G. Breyer, John Paul Stevens, and Sonia M. Sotomayor. In the dissenting opinion, Justice Alito was joined by Chief Justice John G. Roberts Jr., and Justices Antonin Scalia and Clarence Thomas.

Fighting over Facts
One of the central disputes in the case had been the question of which policy the Supreme Court should rule on: the "accept all comers" policy that Hastings had testified to having, or the written nondiscrimination policy on its books, which prohibited registered student organizations from having belief- or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual. The Christian Legal Society's lawyers and the court's dissenting minority had argued that the court should focus on the written antidiscrimination policy, which appeared much harder to defend as viewpoint-neutral.

Justice Alito's dissent argued that the courts had been presented "overwhelming evidence" that Hastings denied recognition to the proposed Christian Legal Society chapter pursuant to the written nondiscrimination policy. Although Hastings said its "accept all comers" policy had been in place since 1990, there was no evidence of its having been put in writing or brought to the attention of others at the law school prior to the July 2005 deposition of Mary Kay Kane, then the dean of the law school, in connection with the Christian Legal Society's lawsuit. Moreover, the justices in the minority argued, the courts had been offered evidence that Hastings had routinely registered student groups with viewpoint-based membership and leadership criteria, and had taken steps to ensure that groups accept all comers only after the Christian Legal Society chapter pointed out a double standard in response to Dean Kane's assertion that an all-comers policy was in place.

The majority opinion, Justice Alito wrote, "ignores strong evidence that the accept-all-comers policy is not viewpoint-neutral because it was announced as a pretext to justify viewpoint discrimination."

The majority opinion argued that the Christian Legal Society had itself stipulated, in U.S. District Court, that the all-comers policy was the only one at issue. The majority rejected the society's "unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as written," but the court could not even reach agreement on what the lower-court stipulation had been. The justices in the minority said the Christian Legal Society had conceded the existence of an all-comers policy but had not abandoned the argument that the nondiscrimination policy had been used.

The question of whether many public colleges even have all-comers policies was unsettled Monday after the court handed its decision down. Gregory Roberts, executive director of the American College Personnel Association, a group that represents student-affairs professionals at private and public colleges, said it is common for colleges to require student groups to follow nondiscrimination policies, but he was unfamiliar with all-comers policies such as the one Hastings said it applied. But Ada Meloy, general counsel for the American Council on Education, said, "I think that both are relatively common."

Questioning Motives
The majority opinion praised the all-comers policy for ensuring that the opportunities offered by student groups are available to all students and that no Hastings student is forced to provide financial support to a group that would not have him or her as a member. The opinion said the all-comers policy also helps Hastings police its written nondiscrimination policy without having to take on the "daunting labor" of trying to determine whether a group had excluded someone based on its biases or the person's beliefs.

The Christian Legal Society had proposed that Hastings prohibit discrimination based on a person's sexual orientation but allow exclusions from membership based on beliefs or behavior—in essence allowing religious groups to bar from membership people who endorse or unrepentantly engage in homosexual behavior. In response, the majority opinion cited Supreme Court precedents holding that laws against certain conduct can amount to invitations to discrimination, that a law barring homosexual behavior opens the door to discrimination against gay and lesbian people.

In seeking to exclude people based on beliefs, the Christian Legal Society "seeks not parity with other organizations, but a preferential exemption from Hastings' policy," the majority said.

The minority opinion challenged the idea that Hastings even had a true "accept all comers" policy, arguing that the law school had acknowledged that it lets student groups have certain membership and conduct requirements that are not discriminatory.

In addition to signing on with the majority, Justice Stevens wrote a separate opinion in which he argued that even the written nondiscrimination policy challenged by the Christian Legal Society was "plainly legitimate" and "meant to promote, not to undermine, religious freedom." While a free society must tolerate the existence of groups that exclude or mistreat people based on race, religion, or gender, it "need not subsidize them, give them its official imprimatur, or grant them equal access to law-school facilities," Justice Stevens said.

Justice Kennedy wrote a separate concurring opinion in which he made clear that he had accepted the law school's characterization of the factual record, and that is what swayed him. If the court had evidence before it that the purpose or effect of the policy was to stifle or undermine speech, that "would present a case different from the one before us," he said.

Carrot or Stick?

The justices in the majority and minority also disagreed strongly with each other over the question of whether the law school's requirements had imposed a serious hardship on the students seeking to form a campus chapter of the Christian Legal Society.

The majority said the Hastings policy "is dangling the carrot of subsidy, not wielding the stick of prohibition," because it leaves such groups free to exclude anyone they wish, so long as they are willing to go without the various benefits that come with official recognition, such as institutional financial support and the use of campus chalkboards and bulletin boards to advertise meetings.

"Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation," said the majority opinion, which argued that the emergence of electronic media and online social networking sites has removed much of student groups' needs for access to officially sponsored communications channels.

In an article published Monday on the Huffington Post Web site, Adam Goldstein, a lawyer for the Student Press Law Center, challenged such logic as akin to justifying racial discrimination at lunch counters on the grounds that people can eat at some other location. "The existence of places where rights aren't being violated can't be held up to defend the violation of rights occurring somewhere else," he said.

The majority also discounted as "more hypothetical than real" the Christian Legal Society's argument that requiring student groups to accept everyone will leave them vulnerable to being infiltrated and subverted by students who oppose them. "Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs," the majority said.

The dissenters challenged the law school's assertions that it had made sincere efforts to try to accommodate students who belonged to the Christian Legal Society, citing evidence showing that administrators at the school had responded to requests for access to facilities by dragging their feet until the planned events had passed.

"The Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad," the minority opinion said.

12. Inside Higher Ed, June 29, 2010
1320 18th Street NW, 5th Floor, Washington, D.C. 20036
New Venue for Anti-Bias Debate
By Scot Jaschik

WASHINGTON -- The U.S. Supreme Court's decision Monday settled a key question about the anti-bias rules of public colleges and universities. Under the ruling, public colleges and universities may limit recognition to student groups that abide by anti-bias rules -- even when the groups are religious and they object on religious grounds to some of the rules.

The ruling rejected an appeal by the Christian Legal Society, which has sought at many public campuses to be recognized as a student group even though -- in violation of many colleges' anti-bias policies -- it bars as members gay people and those who do not meet a variety of requirements related to their religious beliefs.

That finding represented a huge victory for the Hastings College of Law of the University of California, whose anti-bias rules were at issue, and for civil rights and education groups that backed the law school. Hastings fought for the principle at a time when many other law schools and public universities -- facing threatened lawsuits or losing court decisions -- backed down, effectively agreeing to exempt religious groups from some aspects of anti-bias rules.

Still, the issue before the Supreme Court was the permissibility of public colleges' enforcing their anti-bias codes when they interfere with the beliefs of religious groups -- not a requirement that they do so. And no legal experts appear to be reading Monday's decision as requiring public colleges to enforce their anti-bias policies in that way.

So the debate over these policies -- far from being settled -- actually shifted Monday, from courts to campuses. Several colleges indicated to Inside Higher Ed after the decision came down that, while they are reviewing the ruling, they didn't expect to change their policies, and they plan to continue to exempt religious groups from some anti-bias rules. Officials at other colleges declined to comment, or simply said that they were studying the issue. And advocates for gay students and other minority groups called on public colleges that have backed down in the past to once again enforce their policies.

What the Ruling Said

The 5-to-4 ruling, with the lead opinion by Justice Ruth Bader Ginsburg, solidly backed most of the arguments put forth by Hastings and many higher education groups, and rejected the arguments offered by the Christian Legal Society and many of its religious allies.

Justice Ginsburg focused on Hastings' "all comers" approach to student activities, in which it requires all organizations seeking recognition as an official student group to be open to anyone who wants to participate. While the Christian Legal Society argued that this policy denied it the freedom of religion and association rights it should be provided under the First Amendment, Justice Ginsburg said that as long as the policy is enforced consistently, it is valid for a public college or university.

The decision rejected the idea that the Christian Legal Society (referred to by its acronym CLS) is being forced to do anything. "CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition," Justice Ginsburg wrote. "The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out."

Justice Ginsburg also wrote that it would be impossible for a public college or university to do as the CLS requested, and permit organizations to deny membership or leadership to various people based on belief. This was a key part of the CLS argument, as the society said repeatedly that it was not rejecting anyone on the basis of their status.

"How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?" she asked. Further, Ginsburg rejected the CLS argument that it doesn't discriminate against gay people, but only against those who have gay sex. She quoted the Supreme Court decision barring the criminalization of gay sexual acts: "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination."

As to the argument that the Hastings rules would make it impossible for CLS to function as a student organization, Ginsburg noted that many student groups function for years without official recognition and that in the era of e-mail and Web pages, the CLS would have no problem promoting its views and communicating with members.

Finally, Ginsburg wrote that it was entirely legitimate for Hastings to have as a requirement that all organizations be open to all. She said CLS was effectively trying to have its own set of rules, and that a public college or university may insist that everyone follow the same regulations.
"CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides. Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership," she wrote. (On one issue -- whether Hastings applies its rules consistently, the decision ordered additional court hearings, but Hastings officials expressed confidence that they would prevail, especially since the courts that will consider the issue have already upheld the law school's policies.)

Justice Ginsburg was joined in the decision by the other three justices generally viewed as the liberal wing of the court, and by Justice Anthony Kennedy, the swing vote. The four traditionally conservative justices joined a dissent by Justice Samuel Alito that blasted the majority opinion, saying that it would set a standard of "no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning."

Where Colleges Go From Here

Michael W. McConnell, lead counsel for the Alliance Defense Fund, which led the legal defense for the CLS, said that he was "very disappointed" by the Supreme Court's decision and predicted that it would cause great harm to Christian student groups. He said that the justices in the majority were "naïve about how students behave" when they said they didn't see a key problem with an "all comers" policy that he did: that students who disagree with a group could just take it over. And McConnell said it was unreasonable to expect student groups to function without official recognition.

"It's almost impossible to function without recognition," he said. Whatever Justice Ginsburg said about the Internet, McConnell said that campus presence in every possible way is what matters to promote student groups.

Ethan Schulman, a lawyer who has represented Hastings from the beginning of the legal proceedings, said he was thrilled with the decision and said that public colleges should be as well. An underlying principle of the decision, Schulman said, was that the justices wanted to "give substantial deference to university administrators in the kinds of policies they can adopt to further educational objectives."

So what should happen now? Schulman said that those colleges that have agreed to recognize the CLS and those that agreed to recognize Christian fraternities with similarly exclusionary policies "are now open to go back to those decisions." Schulman said that he didn't see Monday's ruling as creating "an obligation" to do so, but that those that were not comfortable with those past decisions would be on solid ground enforcing their original anti-bias policies.

Among those that faced this issue with Christian fraternities were the University of Florida and the University of North Carolina at Chapel Hill -- both of which initially tried to enforce anti-bias rules but later agreed to recognize Christian fraternities that didn't comply with all aspects of those rules. Florida officials declined not only to talk about what they would do now, but even to talk about their current policies.

At Chapel Hill, the university amended its anti-bias rules to say that "student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization's goals and agree with its beliefs, so long as no student is excluded from membership or participation on the basis of his or her age, race, color, national origin, disability, religious status or historic religious affiliation, veteran status, sexual orientation, or, unless exempt under Title IX, gender."

Winston Crisp, vice chancellor for student affairs at the university, issued a statement suggesting that change was unlikely: "We developed our policy to honor student rights to equal opportunity and freedom from discrimination in concert with student First Amendment rights to freedom of association. The policy has served us well and we're comfortable with the balance we have found. We will review the policy in light of today's Supreme Court decision, but we have no immediate plan to make changes."

Many law schools were urged by the Christian Legal Society to recognize chapters despite anti-bias rules. Only a few -- such as those at the University of Montana and at Hastings -- resisted. Many others -- among them Arizona State and Ohio State Universities -- made changes in policies. Ohio State officials said Monday that they were studying the Supreme Court decision to determine any changes that might be in order. Arizona State officials said that they were checking on their plans.

Marc Spindelman, a constitution law professor at Ohio State, said that the campus dynamic over anti-bias rules may now change because it clearly is possible for public institutions to stick with strict enforcement. "Either policy is now constitutionally acceptable," he said.

Given that many of the policy changes were made "to satisfy CLS," he said, "it's hard to imagine there won't be pressure to change policies back." But he said that this pressure may come from students or faculty members, not just from administrators. He said that the Supreme Court decision may be "one stage in a larger battle" for those who want student groups at public colleges not to engage in discrimination.

Others, however, will be pushing colleges that altered their anti-bias policies not to change back. William Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education, said that colleges will have more diversity of viewpoints represented on their campuses if they respect the beliefs of groups like the CLS. "Although colleges have the power to enforce an all-comers policy, they are best not doing so, if they wish to continue a robust debate on their campuses," Creeley said. He said FIRE would "redouble its efforts" to encourage colleges to respect "freedom of association rights," which he said could be endangered by policies like those at Hastings.

Creeley also said that the majority decision understated the importance of being a recognized campus group, and he said he was distressed by the references to social media as a tool for non-recognized groups, "as if to suggest that Facebook and Twitter are the functional equivalent of the traditional means of campus communications."

At Southern Illinois, Christians Who Welcome Everyone

While the Supreme Court focused on the Hastings case, one of the other major legal battles involving CLS involved Southern Illinois University at Carbondale's law school. In 2005, the U.S. Court of Appeals for the Seventh Circuit ordered the law school to recognize the CLS, pending further legal hearings. In 2007, the university reached an agreement with the CLS that recognized it, and allowed it to discriminate by requiring officers and voting members to adhere to its religious beliefs, provided that anyone could attend programs. The university also agreed to create a $10,000 scholarship fund to provide awards to students selected jointly by SIU and the CLS.

Rod Sievers, a spokesman for the university, said Monday that while the university could now change its policies, that was unlikely. "We felt that this was a pretty good balance between rights of people and the goals of the state," he said. "We don't feel any need to go back and revisit this thing."

Sievers also noted that he had been unable to verify that the CLS exists today at the university.

Another group of Christian students is active, but it is not affiliated with CLS (or any national group) and its members say that they don't think the CLS is active at Southern Illinois. (A national spokeswoman for CLS e-mailed late Monday night that she thought there still was a chapter.)

Notably, the Christian Law Student Association at Southern Illinois would probably have no trouble with the anti-bias rules at Hastings. Joy Reedy, president of the association and a rising third year law student, said that its members meet once a week on campus to study Bible together and to provide social support for one another. Sometimes they invite professors who "are rumored to be Christian" to meet with the students and talk about how they integrate faith into their careers. The students all describe themselves as evangelical Protestants, but they are from several denominations. Some of the professors they have invited to talk to them have turned out not to be Protestants -- they ended up with a Catholic professor one time -- but the discussions were good ones, Reedy said.

Asked about the CLS bans on gay students or its faith statement for members, Reedy said that while there are common beliefs among the members of her group, there are no rules, and no one is asked whether their beliefs or actions might violate the beliefs of others. She said that there has never been a problem of non-believers trying to take over the group, or even showing up. There are about eight students most weeks, she said.

What if a non-believer showed up for the weekly Bible discussion and wanted to join the group? "We have no requirements," she said. "If you want to come, you are welcome to come."

13. The New York Times, June 29, 2010
620 Eighth Avenue, New York, NY 10018
Justices Rule Against Group That Excludes Gay Students
By Adam Liptak

WASHINGTON — A public law school did not violate the First Amendment by withdrawing recognition from a Christian student group that excluded gay students, the Supreme Court ruled on Monday in a 5-to-4 decision.

The case, involving a clash between religious freedom and antidiscrimination principles, divided along familiar ideological lines, with the court’s four more liberal members and Justice Anthony M. Kennedy in the majority.

Justice Ruth Bader Ginsburg, writing for the majority, said it was constitutionally permissible for public institutions of higher education to require recognized student groups to accept all students who wished to participate in them.

Justice Samuel A. Alito Jr., writing for the four dissenters, said the decision represented a triumph for the principle that there is “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

The two sides disputed not only the legal principles involved but also just what had happened at Hastings College of the Law in San Francisco, the defendant in the case.

As the majority understood it, the school had merely applied a neutral “all comers” policy to every group that sought official recognition. Recognized groups were entitled to modest financial assistance, use of the school’s communications channels and meeting space, and use of the school’s name and logo, as long as they allowed all students to participate in their activities.

The dissent, by contrast, said the school had enforced a policy forbidding discrimination based on only a few criteria, including sexual orientation, and so had placed a special burden on religious groups.

The student group that brought the suit, Christian Legal Society, or C.L.S., does not allow students to become voting members or to assume leadership positions unless they affirm what the group calls orthodox Christian beliefs and disavow “unrepentant participation in or advocacy of a sexually immoral lifestyle.” Such a lifestyle, the group says, includes “sexual conduct outside of marriage between a man and a woman.”

The group said that either version of the school’s policy would violate the group’s First Amendment rights to free association and religious freedom.

Justice Ginsburg said the justifications the school had offered for the all-comers policy were sufficient to overcome any First Amendment concerns. Among those justifications, she said, were making sure that educational opportunities were available to all students and bringing together people with diverse views.

In returning the case, Christian Legal Society v. Martinez, No. 08-1371, to the lower courts, the majority left open the possibility that the Christian student group might be able to prove that Hastings’s policy was a pretext for antireligious animus.

Justices John Paul Stevens, Stephen G. Breyer and Sonia Sotomayor joined the majority opinion.

In a concurrence, Justice Stevens said groups that “exclude or mistreat Jews, blacks and women” must be tolerated in a free society. But “it need not subsidize them, give them its official imprimatur or grant them equal access to law school facilities.”

In a second concurrence, Justice Kennedy wrote that “a vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

Justice Alito, writing for himself, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas said the decision marked a dark day.

“I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country,” Justice Alito wrote.

“There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith,” he wrote. “For these groups, the consequence of an accept-all-comers policy is marginalization.”

14. The New York Times, June 28, 2010
620 Eighth Avenue, New York, NY 10018
The Court: Denying Government Support for Intolerance

In the guns case, the Supreme Court did the wrong thing (prohibiting gun bans) for the right reason (extending the reach of the Bill of Rights). The opposite was true in another major case on the final day of the court’s term.

The case was a challenge to the Hastings College of the Law in San Francisco, part of the University of California. It had refused to give official recognition to the Christian Legal Society, a student group that bars non-Christians and gay and lesbian students. The court supported the law school but did not directly address the society’s blatant discriminatory practice.

In a 5-to-4 decision written by Justice Ruth Bader Ginsburg, the court upheld Hastings’s right to refuse to recognize the Christian society, which meant that it could not receive any school funds or use the school’s computer system to communicate. The reason, according to the majority: Hastings had a policy requiring all recognized student groups to accept anyone who wants to join. Democratic groups had to accept Republicans; Islamic groups had to accept Jews; so, the court reasoned, the policy was appropriately neutral.

But that “all comers” policy wasn’t the original reason why the legal society was banned, as the four dissenters, led by Justice Samuel Alito Jr., pointed out. The college had earlier, and correctly, said that the society’s refusal to admit gay and lesbian students violated its nondiscrimination policy, which prohibits discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”

Fearful that the Supreme Court would strike down this legitimate policy, the school later said the society had instead violated its far-less-specific all-comers policy, which removed references to discrimination that the conservative justices said violated the First Amendment rights of religious groups.

Tactically, that approach, embraced by Justice Ginsburg, may have been wise — very possibly attracting the crucial fifth vote of Justice Anthony Kennedy. But, morally, it was questionable. The court should have used this case to clearly state that government funds cannot be used to support discrimination.

Justice John Paul Stevens, in a concurrence on the last day of his distinguished tenure, said it best: “A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

15. The New York Times, June 28, 2010
620 Eighth Avenue, New York, NY 10018
Court: Christian Group Can't Bar Gays, Get Funding
The Associated Press

WASHINGTON (AP) -- An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won't let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group's ''discriminatory practices.''

The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California's Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards ''unrepentant participation in or advocacy of a sexually immoral lifestyle'' as being inconsistent with that faith.

But Hastings, which is in San Francisco, said no recognized campus groups may exclude people due to religious belief or sexual orientation.

The court on a 5-4 judgment upheld the lower court rulings saying the Christian group's First Amendment rights of association, free speech and free exercise were not violated by the college's nondiscrimination policy.

''In requiring CLS -- in common with all other student organizations -- to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,'' said Justice Ruth Bader Ginsburg, who wrote the 5-4 majority opinion for the court's liberals and moderate Anthony Kennedy. ''CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy.''

Justice Samuel Alito wrote a strong dissent for the court's conservatives, saying the opinion was ''a serious setback for freedom of expression in this country.''

''Our proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate,''' Alito said, quoting a previous court decision. ''Today's decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning.''

Leo Martinez, Hastings College of the Law's acting chancellor and dean, said the ruling ''validates our policy, which is rooted in equity and fairness.''

But the decision is a large setback for the Christian Legal Society, which has chapters at universities nationwide and has won similar lawsuits in other courts.

''All college students, including religious students, should have the right to form groups around shared beliefs without being banished from campus,'' said Kim Colby, senior counsel at the Christian Legal Society's Center for Law & Religious Freedom.

The 30-member Hastings group was told in 2004 that it was being denied recognition because of its policy of exclusion.

According to a society news release, it invites all students to its meetings.

''However, CLS voting members and officers must affirm its Statement of Faith,'' the statement said. ''CLS interprets the Statement of Faith to include the belief that Christians should not engage in sexual conduct outside of a marriage between a man and a woman.''

Kennedy said ''the era of loyalty oaths is behind us.''

''A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view's validity should be tested through free and open discussion,'' Kennedy said.

Justice John Paul Stevens was even harsher, saying while the Constitution ''may protect CLS's discriminatory practices off campus, it does not require a public university to validate or support them.''

Stevens, who plans to retire this summer, added that ''other groups may exclude or mistreat Jews, blacks and women -- or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.''

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the decision a ''huge step forward for fundamental fairness and equal treatment.''

''Religious discrimination is wrong, and a public school should be able to take steps to eradicate it,'' Lynn said. ''Today's court ruling makes it easier for colleges and universities to do that.''

In another case, the Supreme Court refused to hear an appeal from some Texas parents who wanted to stop their school district from regulating when students can pass out religious-themed material to their classmates.

The court refused to hear an appeal from some parents from the Plano Independent School District.

The district in 2005 told elementary students religious-themed material could only be passed out before and after school, at recess, at three school parties or at designated tables. Middle and secondary students could add in lunchtime or between classes.

Parents say the policy dilutes students' free speech rights. The 5th U.S. Circuit Court of Appeals ruled for the school district and the Supreme Court refused to hear the appeal.

The case is Christian Legal Society v. Martinez, 08-1371.

16. The Chronicle of Higher Education, June 29, 2010
1255 Twenty-Third St, N.W., Washington, D.C. 20037
Hastings and Supreme Court Ideology
By Kevin Carey

It was good timing, having Senate hearings on Elena Kagan's nomination to the Supreme Court begin on the same day as the Court's 5-4 ruling that the University of California's Hastings College of Law acted reasonably in refusing to recognize a Christian group that denies membership to homosexual students. The Senate hearings are premised on the idea that Court nominees should be chosen and interrogated based entirely on their "judicial philosophy" and ideas about the law. So nominees dutifully say things about modesty and justices as umpires and so forth, even as we all understand that the Hastings decision had nothing to with the law and everything to do with the justices' personal convictions about homosexuality.

Some people believe that sexual orientation is a fundamental element of personhood. From there, it logically follows that a college's obligations to nondiscrimination overwhelm any reasonable deference to freedom of association and religious conviction. If the Church of I Hate Black People had been denied recognition as a student group, it never would have made it to the Supreme Court.

Other people believe that homosexuality represents an aberrant and immoral lifestyle choice. From there, it logically follows that student groups, particularly religious organizations, should be free to incorporate that moral conviction into their membership policies, in the same way that the student chapter of the NAACP should be free to exclude those who belong to the Church of I Hate Black People.

Clearly, the four liberal members of the Supreme Court belong to the first group, and the four conservative members belong to the second. Anthony Kennedy, the swing vote, belongs to the first, which we knew because he authored the expansive majority opinion in Lawrence v. Texas, which ruled that anti-sodomy laws are unconstitutional. Thus, 5-4 for Hastings.

The point being, this all has very little to do with the law. That's why, despite President Obama's slow movement on Don't Ask Don't Tell and his public opposition to gay marriage, his election was a victory for the cause of equal rights for gay and lesbian citizens. When a court vacancy opens up, you get Elena Kagan instead of Samuel Alito.

Alito's condemnation of the decision as banning any "freedom of expression that offends prevailing standards of political correctness in our country's institutions of higher learning" gives the game away, I think. Like most people I believe our institutions of higher learning can sometimes be fairly accused of politically correct excess. But in this case Alito sounds like a man appealing to anti-P.C. sentiment as a means of distracting from his choice to be among the long and ignoble line of American jurists who have used their positions of power to slow the nation's progress toward building a just society.

The Hastings College of Law deserves a great deal of credit for fighting this fight, and stands in marked contrast to the many other colleges and universities in similar situations that lacked the courage of their nondiscriminatory convictions. It takes relatively little effort to uphold the civil rights victories of past generations. The decisions that matter are those that speak to victories not yet fully won. In the wake of Hastings, students and faculty should press campus leaders to do the right thing.

17. The Chronicle of Higher Education, June 30, 2010
1255 Twenty-Third St, N.W., Washington, D.C. 20037
Ruling Is Unlikely to End Litigation Over Policies on Student Groups
By Peter Schmidt

Colleges should not be lulled into thinking their policies on student groups are immune to legal challenges based on the U.S. Supreme Court's decision this week to uphold the policy at a California public law school, a group of higher-education lawyers were told here on Wednesday.

"I think, generally, this litigation will not go away," Robb Jones, a prominent adviser to colleges on issues related to legal risk, said during a panel discussion of the Supreme Court's ruling held during the annual conference of the National Association of College and University Attorneys.

Whether most colleges' student-group policies would pass muster in the Supreme Court remains unclear, and the chief advocacy organizations challenging the constitutionality of such policies do not appear likely to back off as a result of the high court's latest decision, said Mr. Jones, senior vice president and general counsel for claims management at United Educators Insurance.

In the 5-to-4 ruling it handed down on Monday, the Supreme Court rejected arguments by the Christian Legal Society that the University of California's Hastings College of the Law had violated the First Amendment rights of students wishing to establish a campus chapter by requiring their proposed group to admit homosexual students as a condition for receiving the school's official recognition and financial support.

The ruling, however, focused on a type of policy Mr. Jones said is found at only a minority of colleges: an "accept all comers" policy requiring any student group seeking official recognition to be open to anyone who wishes to join. More common at colleges, Mr. Jones said, is a policy of allowing student groups to have requirements for membership and leadership as long as those requirements are not discriminatory.

The Christian Legal Society's lawyers had argued that the Hastings law school initially rejected the proposed campus chapter's application based not on an "all comers" requirement, but on a campus nondiscrimination policy that said student groups cannot have membership and leadership criteria that exclude students for reasons of religion or sexual orientation. Such nondiscrimination policies, the Christian Legal Society argued, preclude students from organizing groups based on religious beliefs, infringing on their First Amendment rights of free expression and association.

'An Open Question'
The Supreme Court ended up becoming bitterly divided over which facts it was ruling on, with the majority opinion focusing on the "all comers" policy and the minority opinion arguing that the harder-to-defend nondiscrimination policy should have been taken into account as well. The only member of the majority to specifically argue that the nondiscrimination policy was constitutional was Justice John Paul Stevens, in a concurring opinion that no other justice signed.

In his presentation on Wednesday, Mr. Jones said experts on the court disagreed over whether Justice Anthony M. Kennedy, the conservative-leaning justice who joined with more-liberal members to provide the majority's fifth vote in favor of the "all comers" policy, would have signed on to a decision upholding the other policy under consideration as constitutional. "This is an open question," he said.

In an interview, Mr. Jones added: "I would still argue that a nondiscrimination policy is constitutional," but "we can't offer anybody assurance that that is the case."

Several other colleges whose nondiscrimination policies were challenged by the Christian Legal Society have reached compromises in which they exempted religious groups from requirements to admit students of any religion or sexual orientation. As a legal matter, Mr. Jones said, those policies are "probably OK" and can remain in place following the Supreme Court's latest decision. As a practical matter, however, colleges might find it hard to retain such exemptions if students proposed forming a group based on "intolerable" religious beliefs, such as a conviction that women or black people are inferior.

In its ruling on Monday, the Supreme Court remanded the case back to the U.S. Court of Appeals for the Ninth Circuit to take up the Christian Legal Society's claims that the law school's "all comers" policy was being applied inconsistently. Mr. Jones told the lawyers gathered here that colleges may need to review the bylaws of their registered student organizations to make sure no group, including those for minority students, is rejecting students from membership or leadership for discriminatory reasons.

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