associations, however, do not have any inherent rights to public
support, and the Court stressed that CLS was not denied the right to
exist or organize on campus; it was the denied the benefits of official
recognition. The trouble is that CLS appears to have been denied
recognition and benefits because state university officials disapproved
of its ideological opposition to homosexuality: If the states chooses
to extend benefits to private groups, it can't discriminate between them
on the basis of their viewpoints; CLS appears to have been the victim
of viewpoint discrimination, (or political correctness).
Or was it? The majority and dissent in CLS v Hastings present sharply
divergent accounts of the facts underlying this complicated case. (The
clash between CLS's associational rights and campus non-discrimination
policies dates back about ten years; I've analyzed it previously here).
According to the majority (authored by Justice
Ginsburg,) Hastings College of Law (part of California's state
university system) denied CLS recognition on the basis of a "viewpoint
neutral" policy requiring all official campus groups to admit "all
comers," regardless of ideology or commitment to the group's mission and
ideals. Pursuant to this policy, the majority observed, a democratic
club seeking recognition would be required to admit republicans, a
pro-choice club would be required to admit anti-abortion advocates, a
PETA chapter would be required to admit fur coat devotees. The dissent
would have struck down this policy for interfering with private
associational rights, (as I would), but according to Justice Alito's
angry dissent, it was not, in fact, the policy applied to CLS.
According to Alito, the record demonstrated that the "admit all
comers" policy was a sham, belatedly enunciated in 2005, after CLS sued
the school for denying it recognition on the basis of its ideology --
pursuant to a different, non-discrimination policy, used perversely to
discriminate against CLS. Prior to 2005, "Hastings routinely
registered student groups with bylaws limiting membership and leadership
positions to those who agreed with the groups' viewpoints." An
official La Raza chapter limited voting membership to "students of Raza
background." A pro-life group limited voting membership to pro-lifers.
In other words, while La Raza was allowed to discriminate on the basis
of ethnicity, CLS was denied recognition for discriminating on the basis
of religion: "CLS (is) "the only student groups whose application has
ever been rejected."
The effects of that rejection were
substantial, the dissent asserts; the majority disagrees, declaring them
minimal. The majority asserts that CLS was offered the use of school
facilities, even though it had not been officially recognized. The
dissent claims that CLS was not even granted permission to set up a
table on a school patio "which could hardly have interfered with any
other use of the law school's premises or cost the school any money."
The majority stresses that while private groups have a right to
discriminate, they have no right to state subsidies; the dissent
stresses that state subsidies involved in this case were marginal, (as
well as discriminatory).