Tuesday, December 15, 2009

Anti-Discrimination Versus Pro-Inclusion

By Mike Dorf

And now . . . still more on CLS v. Martinez to follow up yesterday's post and column.  Today I want to focus a little bit on the way in which Hastings implements its non-discrimination policy.  The policy as written bars discrimination on grounds of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation."  In application, however, Hastings interprets this policy to mean that no official student group can exclude from membership any student who wants to join.  This raises a number of interesting issues.

To begin, we might doubt whether this can really be the Hastings policy.  Consider the fact that the Hastings Law Journal, the school's flagship student-edited journal, selects members based on grades, a writing competition, and other factors (as set forth here), but HLJ does not simply accept as members all students who want to join.  When I talked with a Hastings faculty member about this, I was told that he thought that journals were not subject to the open-membership policy.  (I assume that the journals are not exempt from the anti-discrimination policy itself, so that the HLJ gets to reject less-qualified prospective student editors, but not on any of the enumerated illicit grounds.)

What justification would there be for exempting the HLJ from the open-membership requirement?  Presumably, there's a judgment that it's legitimate for a law journal to select only those students who are most likely to be good edtors.  But if that's the judgment with respect to the HLJ, why not a similar judgment for other student organizations?  Given that part of its mission is to raise cycling-related awareness, it's not burdensome to require the Hastings Cycling League to accept any student as a member, but suppose that another group of students wanted to form a club for bicycle racing enthusiasts, perhaps competing in club level competitions.  If the HLJ is allowed to hold a writing competition, why should the putative Hastings Bicycle Racing Club not be permitted to hold time trials?  Shouldn't the Hastings Tax Law Society be permitted to require that any student member have enrolled in or completed at least the basic course in tax law?  For just about any activity, we can imagine some valid reason why the organization would want to limit membership to people with some minimum proficiency in a skill related to participation.

So, why does Hastings nonetheless simply require open membership?  I can think of two sorts of reasons.  The first is that doing so avoids difficult line-drawing problems. A requirement that all official organizations be open to all members obviates the need to determine what sorts of non-illicit membership criteria are legitimate and, perhaps more importantly, avoids the need to inquire into motive that can arise with a simple non-discrimination policy.  If someone claims he was kept out of the Hastings Ballroom Dance Club because he is over age 45, the HBDC does not get to say that no, the real reason was that he wasn't a good enough dancer.  The requirement to take all comers completely obviates the need to inquire into motive in a case of exclusion.

A second sort of reason for the open-membership policy would be more substantive: Hastings could have reasonably made a judgment that it only wants the sorts of student organizations that are open to everyone.  Exclusion, in this view, is always harmful to the overall sense of community the law school wants to foster, even if the exclusion is not on the basis of some specifically enumerated illict ground.  This would simply be an anti-elitist policy.

Exempting the Hastings Law Journal is, of course, inconsistent with both of the foregoing rationales.  Flagship law reviews with competitive membership criteria are inherently elitist--although that's not necessarily bad.  A law school could reasonably conclude that fostering some competitiveness in the enterprise of legal scholarship is worth the price, even if such competitiveness in activities such as who gets to play the board game Othello is not worth the price.  And having decided that competitive membership procedures are worthwhile for one or more law journals, the school could also conclude that complaints about discrimination will be sufficiently few in number as to make acceptable the cost of having to adjudicate them.

I don't know whether there have been any complaints of discrimination by the HLJ, but if there were, it would not be surprising if they were complaints by white and male students that the "hardship selection" provision, described on page 4 of the HLJ's by-laws, violates California's Proposition 209, which bans affirmative action based on race, sex or ethnicity.  Although the hardship criteria are formally neutral--they ask candidates to describe hardships and obstacles they have faced--they are also expressly justified in part by the diversity to which their application is expected to lead.

Finally, I should make clear that none of the discussion in this blog post bears directly on the Christian Legal Society case.  CLS claims a constitutional right to be able to exclude "unrepentant" openly gay students on the basis of sexual orientation, so there is a conflict with the Hastings anti-discrimination policy as written--rather than a conflict only with the broader accept-all-students interpretation of that policy.  (The fact that CLS would also bar "unrepentant" adulterers does not, in my view, mean that its policy does not discriminate on the basis of sexual orientation--although CLS will surely argue that it has nothing against people on the basis of sexual orientation; it's just insisting on willingness to abide by the CLS tenets.)