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SHORT TAKES


July 1, 2010

What Now After CLS?

The Supreme Court's Christian Legal Society v. Martinez ruling has received a good deal of high-quality commentary: FIRE and David French criticized the ruling; Eugene Volokh argued that the Court got the decision right.

Anne Neal has correctly noted that trustees should respond to the ruling by going slow, especially since the "all-comers" policy employed by Hastings is rare. That said, it seems more than likely that more and more universities will imitate the Hastings policy, whether from a desire to inoculate themselves from lawsuits or on behalf of what Justice Alito termed a campus agenda of political correctness.

The "all-comers" policy has satisfied the Supreme Court. But from an educational standpoint, does it make any sense? What purpose is served by a college or university creating an official Democratic club whose membership is open to unabashed defenders of George W. Bush? Or creating an official Jewish students organization that must admit Arab students who deny Israel's right to exist? Not only does such a policy undermine freedom of association, but the resulting organizations are essentially useless.

The arrangement does, however, benefit one group: official student organizations maximize the power of student life bureaucracies, which oversee official student clubs at most campuses. And, as we've seen from instances like the University of Delaware's thought-control initiative, student and residential life offices rarely operate to the overall good of the student body.

Indeed, Justice Ginsburg's opinion demonstrated why official student organizations (even without the "all-comers" policy) no longer serve much educational purpose. "Although CLS," she wrote, "could not take advantage of RSO-specific methods of communication, the advent of electronic media and social-networking sites reduces the importance of those channels." She approvingly cited a lower-court dissent that all a group like CLS needed to access the student body was a website that could be found via a Google search. That point presumably could be applied to any campus student group.

Rather than adopting the toothless "all-comers" approach, universities would be well-served derecognizing all student organizations, expecting that technology would allow these groups to flourish privately in the way that Ginsburg outlined. Such a move, moreover, would pave the way for dramatically scaling back the influence of student life bureaucracies on most campuses, since one of their central responsibilities---overseeing "official" student clubs---no longer would exist.

The two concurring opinions contained three items worth comment, if only because it seemed that Justices Kennedy and Stevens operated from the premise of universities that once existed rather than as they now are.

In his concurring opinion, Kennedy, who provided the critical fifth vote, argued that "the school's objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime."

But, as shown in the generational chasm on gay rights, at most colleges and universities (at least outside of Utah and the South), in contrast to the situation 20 or 25 years ago, it's now students who oppose equal rights for gays and lesbians that "are in the minority." (Personally, I welcome that development.) In the CLS case, Kennedy seems not to have asked himself what it said about his opinion that the "students whose views are in the minority" explicitly rejected the "all-comers" policy.

Second, Kennedy celebrated "the principle that in a university community---and in a law school community specifically---speech is deemed persuasive based on its substance, not the identity of the speaker."

This sentence, alas, describes a university that has ceased to exist. Indeed, central rationale behind the "diversity" crusade is that certain types of speech are deemed more persuasive based on the identity of the speaker, especially if the speaker is of the preferred gender, race, ethnicity, or sexual orientation.

Finally, Justice Stevens wrote, "As a general matter, courts should respect universities' judgments and let them manage their own affairs." The contemporary academy is deeply committed to a system of racial preferences, and deeply suspicious of the need for intellectual diversity. Neither of those judgments are worthy of respect.

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