Law school need not support religious club that discriminates

The National Law Journal


The University of California Hastings College of the Law cannot be required to recognize and fund a religious student group that discriminates in the selection of members and officers, the 9th U.S. Circuit Court of Appeals ruled on March 17.

Just a week after hearing arguments in the case, the 9th Circuit issued a one-paragraph, unpublished order that Hastings' open membership rule prohibiting discrimination based on religion or sexual orientation of members is "viewpoint neutral and reasonable."

The Christian Legal Society (CLS) has indicated that it would appeal if it lost at this stage. Christian Legal Soc'y v. Kane, No. 06-15956.

Hastings' attorney, Ethan Schulman of Folger Levin & Kahn in San Francisco, said that the issue has arisen repeatedly in test cases at various university campuses across the country. The most recent was on Feb. 6 in San Diego, when U.S. District Judge Larry Burns granted summary judgment for San Diego State University against a challenge by Christian student groups.

The CLS litigation is one of a half-dozen test cases the group has filed in recent years against law schools around the country over similar nondiscrimination pledge requirements. The 9th Circuit decision to side with Hastings may put it in direct conflict with the 7th Circuit.

CLS' attorney, Timothy J. Tracey of the Springfield, Va.-based Center for Law and Religious Freedom, argued that the school's denial of official recognition deprives it of some funding, access to recruit students at official events and access to the school Web site and other publications. The school does provide meeting space.

The 9th Circuit panel found that Hastings' rule requiring open voting membership in all student groups, even if members disagree with the mission of the group, is permitted under the 9th Circuit's decision in Truth v. Kent School Dist., 542 F.3d 634 (9th Cir. 2008), which has an application for U.S. Supreme Court review pending.

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