The Battle Of Hastings

Supreme Court Decision About Law School’s Anti-Discrimination Policy Tests Religious Right Power On College Campuses – And Elsewhere

Michael Flynn couldn’t be prouder of his alma mater. Hastings College of Law, where Flynn graduated in 2006, has stood up for his rights and the rights of his classmates – defending them all the way to the U.S. Supreme Court.

Though many other law schools caved to the demands of a Religious Right group called the Christian Legal Society (CLS), the San Francisco school stood its ground. In 2004, Hastings denied official recognition and public funding to CLS, a national organization with student chapters at law schools across the country.

The society requires all its members to sign an evangelical statement of faith and bars students who engage in “unrepentant homosexual conduct” from joining.

But Hastings, which is part of the University of California, requires that student groups remain open to all students in order to receive university funding and recognition. The school told the society it could not make an exception for CLS, but that “if CLS wishes to form independent of Hastings, [the university] would be pleased to provide the organization the use of Hastings facilities for its meetings and activities.”

This didn’t sit well with the national office of CLS, a membership association of lawyers, judges, law professors and law students that seeks to “inspire, encourage and equip lawyers and law students…to proclaim, love and serve Jesus Christ through the study and practice of law, the provision of legal assistance to the poor, and the defense of religious freedom and the sanctity of human life.”

The society’s litigation arm sued Hastings, demanding that its student chapter receive an exemption from Hastings’ nondiscrimination policy. CLS claims that denying the students funding and official recognition discriminates against Christian students for their religious beliefs, even though other student groups, including other religious groups, abide by the policy.

Officials at Hastings fought CLS and won at both the federal district court level and in the 9th U.S. Circuit Court of Appeals. CLS appealed Christian Legal Society v. Wu to the U.S. Supreme Court, which took the case on Dec. 7.

“I could not have been more pleased with Hastings’ commitment to its nondiscrimination policy,” said Flynn, who while in law school served as co-chair of the lesbian, gay, bisexual and transgender student organization Outlaw. “They took a serious stance on this case and recognized that failure to confront this kind of behavior by a student organization would create a precedent that allows students to be discriminated against. This case isn’t just about LGBT kids or students who aren’t Christians; it affects everyone.”

The Outlaw group Flynn led officially intervened as a party in the lawsuit now before the high court.

“We felt it was important to intervene,” Flynn said. “A lot of students felt personally attacked. We felt passionately that our rights were at stake, and we had a voice that needed to be heard.”

But Hastings, Outlaw and Americans United, which plans to file a friend-of-the-court brief in the case, are going to have to put up a tough fight against both CLS and its close ally, the Alliance Defense Fund (ADF), whose attorneys plan to represent the society.”

“Christian students have the right to gather as Christians for a common purpose and around shared beliefs,” said Gregory S. Baylor, ADF’s senior legal counsel. “It’s completely unreasonable – and unconstitutional – for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate.”

Last month, Legal Times reported that CLS and ADF have recruited Michael McConnell to argue the case before the high court. McConnell, a former federal appellate court judge, is a prominent academic critic of church-state separation who currently runs the Constitutional Law Center at Stanford Law School. He has successfully argued other religion cases before the Supreme Court, winning decisions that have eroded the church-state wall.

McConnell’s star power and academic credibility teamed with the ADF’s aggressive posture could make for a formidable team.

The ADF, a Religious Right legal group founded by a coalition of radio and TV preachers, has a long track record of bashing the church-state wall. The group will use any means necessary to bring church and state closer.

In the past, ADF officials have organized a mass campaign urging pastors across the country to violate tax laws and endorse candidates from the pulpit; they have brought lawsuits demanding that Nativity scenes remain on government land; and they have opposed Americans United by secretly bankrolling a legal effort to allow a Baptist facility in Kentucky to indoctrinate youngsters in religion and discriminate on religious grounds when hiring staff, yet still receive millions in public funds.

And now, the group has turned its focus on our public institutions of higher education. The ADF, running on a $32 million annual budget, already operates the “Center for Academic Freedom,” working to “end the unconstitutional persecution and coercive indoctrination of Christian students on public university campuses.”

Recently, the group received a $9.2. million gift from an anonymous family to fund what it calls the “University Project.” The organization plans to match that grant and designate a total of nearly $20 million toward the campaign.

The Wu case is just the start of ADF’s plan to infiltrate our country’s colleges and universities with its political agenda.

“Many colleges and universities across the nation have enacted unconstitutional policies and practices censoring Christian speech, banning Christian groups from campus, and punishing professors and students,” said ADF Senior Counsel David French, director of the ADF Center for Academic Freedom. “Thanks to this extremely generous gift we are better prepared than ever to work toward restoring the ‘marketplaces of ideas’ that these academic institutions were intended to be.”

The ADF has already been involved with 55 legal cases in which it either sued a college or is working with student groups to “assert their rights.” According to the group’s President and CEO Alan Sears, a protégé of Reagan-era Attorney General Ed Meese, public universities are the most “intolerant place” in America.

Sears considers the Supreme Court’s decisions upholding a wall of separation between church and state to be “bogus” and “bizarre.”

“The fact is,” he says, “the First Amendment does not erect a so-called wall of separation regarding any institutions.”

The ADF wants to target universities’ codes of conduct, which like many civil rights laws, protect students from discrimination and encourage debate on campus while requiring students to respect one another. The ADF claims these codes are overly broad and limit the free speech rights of Christian conservatives while protecting left-wing points of view.

Americans United Executive Director Barry W. Lynn said the ADF’s plan to challenge these codes of conduct is like “shooting a cannon at a mosquito,” since most universities do not violate free-speech rights of students.

“I think they’re going to be hard-pressed to find very many serious cases where colleges, by policy or practice, inhibit Christian students or in any way treat them as second-class citizens,” Lynn told the Arizona Republic. Universities that violate free speech rights, he said, are far from the norm.

But that matters little to the ADF, critics say, because all the group needs is one case to alter important legal precedent that protects church-state separation at public universities and other institutions.

Sears claims that universities serve as a microcosm for the rest of society, making ADF’s strategy apparent: The group wants to use these few cases involving colleges and extend the legal precedent far beyond the education realm.

That’s why so much is at stake in the Wu case. Some observers fear the decision won’t just affect law schools and institutions of higher education, but could open the door for faith-based groups to proselytize and discriminate in hiring while using public funds – at least that is the ADF’s hope.

“If the Court rules in CLS’s favor, we’d ask the justices to be mindful of issuing a narrow ruling that doesn’t have the unintended result of forcing the government to fund organizations that discriminate, whether the government wants to or not,” said Richard B. Katskee, AU’s assistant legal director. “We surely would not want a homeless shelter that runs entirely on public funds to be able to discriminate along religious lines in its hiring.”

Religious Right advocacy groups first “woke up” to using universities and Christian student groups as a means for pushing their political agenda back in 2000, when Tufts University, a private school, grappled with whether it should extend recognition to the Tufts Christian Fellowship. The religious group had told one of its members that she could not be an officer because she is gay.

The private university resolved the situation behind closed doors. But by 2003, student religious groups like the Christian Legal Society were making sure their students were not being forced to sign nondiscrimination policies.

The ADF saw this scenario as a chance to rectify “unfair” treatment of Christian students on college campuses. In 2003, the group ran half-page ads in student newspapers at five colleges, with the headline, “Are you Experiencing Anti-Christian Bigotry on Campus?” They hoped the ad would encourage student groups to step forward and challenge campus policies.

It worked. At two of the colleges, Ohio State University and the University of Minnesota-Twin Cities, Christian legal groups filed lawsuits on behalf of student groups.

By the beginning of 2005, CLS had filed a total of five lawsuits against universities that were refusing to officially recognize a student organization because of its discrimination practices.

The society’s chief litigation counsel for CLS’s litigation arm, the Center for Law and Religious Freedom, told the ABA Journal in February 2005 that to require a Christian group to admit non-Christians and gay students would be like requiring a student vegetarian club to admit meat eaters.

“That really cuts to the heart of what the group is as an evangelical organization,” Steven Aden said.

The CLS statement of faith requires students to profess faith in Jesus Christ and adhere to certain evangelical Christian beliefs based on the authority of the Bible, including prohibition on sexual conduct between people of the same sex. Those who previously engaged in homosexual conduct but have repented can join, but those who are currently gay are considered to be sinful and cannot become members.

CLS formed nearly 50 years ago by four attorneys who met to pray together at the 1959 American Bar Association convention. Since then, CLS has grown into the largest national Christian legal association with 3,000 active members in attorney chapters across the country. CLS also has more than 165 law school chapters, and many ADF attorneys are members and likely participated in the society during law school.

Though not nearly as large as the ADF – CLS runs on a budget of less than $3 million – the society has been active in some way or another in every U.S. Supreme Court case on religious liberty since its founding, usually in opposition to church-state separation.

The Wu case is the first time the society has been a party in a case that reached the U.S. Supreme Court. The other lawsuits the society brought against universities have either been settled outside of court or reached a final decision in a lower court.

CLS is hoping the U.S. Supreme court case will settle the split decisions over this matter, particularly between the 9th Circuit’s decision in Wu and the 7th U.S. Circuit Court of Appeals decision in Christian Legal Society v. James E. Walker et al. The 7th Circuit sided with CLS in a similar lawsuit the group brought against Southern Illinois University despite a strong dissent from Judge Diane P. Wood, whom President Barack Obama had on his short list of U.S. Supreme Court justice nominees.

Though CLS brings up numerous issues within these lawsuits, its primary claims against the various universities is that they are discriminating against Christian students, preventing them from their right to gather as a student group and also prohibiting their freedom of religion.

A spokeswoman for Hastings in 2005 said the university had no intention of doing that, and its nondiscrimination policy is part of the state’s educational code and, in turn, consistent with the California Constitution.

“All student organizations must be open to all students, and every student organization must accept the nondiscrimination policy in order to be recognized,” she told the ABA Journal soon after the lawsuit was filed. She added that other student religious organizations also agree to abide by the nondiscrimination policy.

A current student leader from the Hastings Jewish Law Students Association (HJLSA) said her group accepts and welcomes students from all different faith backgrounds. The university doesn’t “force” them to admit students of other faiths; it’s merely a choice of whether the group wants university recognition and funds, or not. The group has the option to forgo university funding and recognition and still operate on its own.

HJLSA accepts the school’s funding to carry out its secular activities. The group does not use the funds for religious events. Instead, to pay for religious activities, such as Shabbat dinners, HJLSA relies on donations from alumni and collaboration with the local Hillel. But the group chooses to invite all students from different faith backgrounds to share in the religious events.

“It’s an important point to make that neither Hastings nor any of the student groups have a problem with CLS existing and excluding whoever they want to exclude,” said Shannon Price Minter, an attorney for the National Center for Lesbian Rights, which represents Hastings Outlaw. “The only issue here is if they want to get funding, they have to comply with the rules everyone else does.”

Ayesha N. Khan, AU’s legal director, added that state institutions cannot treat religious organizations more favorably than non-religious ones. Since all other groups at Hastings must abide by the nondiscrimination policy, CLS should not receive a special exemption.

It seemed clear that CLS was asking for a special privilege, Flynn said, which is why it came as a shock to him and the university-at-large that the CLS student chapter was adamant not to accept the school’s nondiscrimination policy. For years, a Christian student group had existed at Hastings with no problems. In fact, gay students were once even part of the club.

But in 2004, the Christian student group officially associated itself with CLS, and had to abide by the society’s bylaws.

When the student group applied for travel funds that year, they received notice that they would be denied the funds unless the group’s bylaws came into conformance with the school’s nondiscrimination policy. CLS’ litigation team at the Center for Law and Religious Freedom soon issued a long letter to the university, listing its demands.

Within months, Hastings received notice of the lawsuit.

“When they sued the school, it seemed that most students shared my outrage over the case,” said Flynn, who now teaches as an adjunct faculty member at Hastings. “Even students who were members of CLS were unaware that this was happening. They said they had no idea this was going on.

“After all,” he added, “they were members because of the Christian activities, not to discriminate against people.”