1. Non-Discrimination Policies and Student Organizations Jonathan Alger Senior Vice President and General Counsel Rutgers, The State University of New Jersey Legal Issues in Higher Education Conference October 18, 2010

2. The Issues Whether, and to what extent, student organizations can or must be forced to abide by institutional non- discrimination policies How to enforce non-discrimination policies in light of principles of free expression, free association, and freedom of religion 2

3. Program Outline Overview of Supreme Court decision in Christian Legal Society v. Martinez (2010) Implications for Institutional Policies and Practices Some Additional Rules of Thumb Questions and Answers 3 3

4. Basic Points Constitution applies to public institutions only But private institutions may be subject to other federal and state laws (e.g., non-discrimination statutes), as well as institutional policies 4 4

5. Christian Legal Society v. Martinez (2010) Christian Legal Society and other national organizations had challenged institutional policies that did not permit student organizations to require members to subscribe to statements of faith. Colleges and universities had taken differing approaches (e.g., some had exceptions for religious organizations; others made no exceptions). Lower courts had split on this issue. 5 5

6. The Facts Hastings College of Law (part of the U. of California System) extends recognition to Registered Student Organizations RSOs had access to school funds, facilities, channels of communication, and school name and logo RSOs were required to comply with institutional policies, including non-discrimination policy (which tracked state law and included religion and sexual orientation) 6 6

7. The Facts Hastings policy is described by the Court as an “all comers” policy—i.e., RSOs must allow any student to participate, become a member, or seek leadership positions, regardless of his or her status or beliefs There was some dispute about the actual policy and its application, but the parties had agreed to “stipulations” of fact 7 7

8. The Facts CLS (a national organization with local campus chapters) bylaws require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles (including the belief that sexual activity should not occur outside of marriage between a man and woman) CLS excludes from affiliation anyone who engages in “unrepentant homosexual conduct” or holds different religious convictions 8 8

9. The Facts Hastings rejected CLS’ application for RSO status because it excluded students based on religion and sexual orientation (and thus violated the institution’s non-discrimination policy) 9 9

10. The Suit CLS claimed that Hastings’ action violated their rights to free speech, expressive association, and free exercise of religion Lower courts found the all-comers condition on RSO recognition to be reasonable and viewpoint neutral 10

11. The Question Does a public institution’s conditioning access to a student-organization forum on compliance with an all-comers policy violate the Constitution? 11

12. The Answer In a 5-4 decision (authored by Ginsburg, and joined by Stevens, Kennedy, Breyer and Sotomayor), the Court found the policy to be reasonable and viewpoint neutral—and thus not a violation of First Amendment rights 12

13. Limited Public Forum A limited public forum exists when a public institution opens property that is “limited to use by certain groups or dedicated solely to the discussion of certain subjects” Under this framework, a public entity can impose restrictions on speech that are reasonable in light of the purposes of the forum and that are viewpoint neutral 13

14. Limited Public Forum Court characterized Hastings’ RSO program as “dangling the carrot of subsidy, not wielding the stick of prohibition” In other words, CLS had a choice whether to seek recognition and associated benefits—it could exist without these benefits, as other organizations chose to do (and thus not be subject to institutional policies) 14

15. Limited Public Forum Hastings said non-RSOs could still use Hastings’ facilities for meetings, and have access to generally available bulletin boards to announce events In age of electronic media, Court said CLS had ample alternative channels of communication 15

16. Privilege v. Right Characterizing recognition and associated benefits as a “subsidy” makes it a privilege rather than a right, thus distinguishing the case from others where groups would have been forced to accept all members if they wanted to exist (e.g., Boy Scouts v. Dale) 16

17. Justifications for All-Comers Requirement Ensures that leadership, educational and social opportunities are available to all students Helps the institution enforce its non-discrimination policy without inquiring into RSO motives for membership restrictions 17

18. Justifications (cont.) Encourages tolerance, cooperation and learning among students—and when conflict occurs, can build conflict-resolution skills (J. Kennedy underscored relationship between an all-comers approach and the “marketplace of ideas”) Follows state non-discrimination law 18

19. Hostile Takeovers Court rejected argument that an all-comers policy would facilitate “hostile takeovers” of student organizations (little evidence of such occurrences). Neutral options exist to deal with this problem if it arises: e.g., requirements for attendance, payment of dues, rules against disruption of activities 19

20. Selective Enforcement CLS is now arguing that the all-comers policy was a pretext for selective enforcement against particular groups or viewpoints (that issue is now being argued in the 9 th Circuit) 20

21. Previous Cases In previous cases, Court found that colleges violated First Amendment because they singled out groups for disfavored treatment because of their points of view 21

22. Implications for Policies and Practices All-comers policies are permitted, but not mandated by the Court (must be viewpoint-neutral) It would help to articulate in writing the educational rationale for such a policy and the educational judgment involved (courts generally defer to “educational” judgments) 22

23. Selective Enforcement All-comers policies must be enforced in an even- handed way (no special exceptions for certain religious or political groups) Foundation for Individual Rights in Education sent letter to presidents noting the difficulty in meeting this standard Institutions should keep careful records of how and why decisions about recognition are made 23

24. Special Exceptions Court’s decision leaves open the door to policies that make special exceptions for religiously-based (or other) organizations under anti-discrimination policies Thus, institutions have latitude to formulate policies and approaches consistent with their educational mission 24

25. Non-Discrimination Policies Such policies can be applied to registered student organizations Track federal and state laws, and general institutional policies Policies should prohibit conduct of discrimination based on particular categories (race, gender, etc.) – and should not be aimed at the content of speech or viewpoints of particular groups 25

26. Non-Discrimination Requirements With certain limited exceptions (e.g., fraternities and sororities), groups should not discriminate in membership on basis of race, gender, etc. But groups can focus on race and gender-related issues, or advocate for rights of certain groups (e.g., Black or Asian Law Students Association) 26

27. Non-Discrimination and Private Institutions Private institutions and their organizations can also be subject to such rules –Ex.: Duke University’s Student Government Senate recently voted to cut off funds for College Republicans chapter because they removed their chair (allegedly because he is gay) 27

28. Membership Requirements Requirements unrelated to an individual’s status or beliefs are permissible – e.g., good attendance, payment of dues, no gross misconduct, skills-based tests (such as writing, music or athletic ability) If hostile takeovers do occur, institutions can revisit and strengthen such requirements 28

29. Forming Organizations Institutions may want to provide flexibility in process to form new RSOs to be responsive to changing student needs and interests, and to ensure a variety of viewpoints Consider review and removal of barriers that prevent meaningful participation of non- registered organizations 29

30. Additional Rules of Thumb Students in public institutions have a general right to organize and form groups Student organizations at public institutions cannot be denied recognition based solely on their viewpoint or philosophy 30

31. Legitimate Bases for Non-Recognition Groups can be asked to adhere to reasonable campus rules. Their activities should not interrupt classes or substantially interfere with other students’ ability to obtain an education. Activities can be prevented that are themselves illegal under local, state or federal laws, or that are directed (and are likely) to incite or produce “imminent lawless action.” 31

32. Mandatory Student Activity Fees Funding must be allocated in a viewpoint-neutral way (don’t use referenda that become “popularity contests” regarding groups’ views). Institutions are not required to provide an opt-out or refund mechanism for students who object to funding particular groups, but they may choose to do so. 32

33. Religious Activities Recent 7 th Circuit decision held that a public university cannot deny funding for religious activities by RSOs if the institution has opened a forum broadly to a wide range of similar activities (Badger Catholic v. Walsh, 2010) U. of Wisconsin had permitted use of student activity fees for “dialog, discussion, or debate from a religious perspective”—but not for “worship, proselytizing, or religious instruction” 33

34. Badger Catholic (cont.) University had denied funding for this group’s mentoring/counseling (which could include guidance or prayer with Catholic nuns or priests), as well as for a summer retreat for leadership training where masses were said and communal prayer sessions were held 34

35. Badger Catholic (cont.) Court noted practical difficulties of distinguishing discussions about religious subjects from religious devotion University had permitted other organizations to get funding for mentoring/counseling, and leadership training 35

36. Implications of Badger Catholic Institutions should use care when carving out categories of activities for which they won’t provide funding (e.g., you could exclude all retreats or counseling, but don’t single out “spiritual” or “religious” retreats or counseling) In general, decision would suggest avoiding prohibitions related to religion and worship 36

37. Looking Toward the Future Our institutions are becoming more diverse and can expect to see more religious groups seeking RSO status National organizations will continue to monitor institutional actions and decisions in this area, and will continue to file test cases 37

38. Consistency and Training Decisions and judgments made on these issues should be carefully documented. Individuals responsible for making such decisions should have written policies to help guide them, and receive training on the basic rules of thumb. 38

39. QUESTIONS AND ANSWERS 39

40. Contact Information Jonathan Alger Senior Vice President and General Counsel Rutgers, The State University of New Jersey alger@oldqueens.rutgers.edu 732-932-7697 40