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.)


Hank Morgan said...

I must have been commenting on your last post while you were updating this post. The point I made there applies here as well. You say that the CLS excludes members on the basis of sexual orientation, but that sure seems like a mis-reading of what CLS is doing. They exclude students--both gay and straight--based on their beliefs about sexual orientation, not their sexual orientation per se. In other words, you and I would be just as excluded by the CLS policy as a gay student, if we disagree with the CLS's viewpoint.

Paul Scott said...
This comment has been removed by the author.
Paul Scott said...

Above post deleted to fix typos.

People like to pretend that there is some legitimate sociological or ideological basis (meaning apart from blatant "I don't like gays") when it comes to homosexuality. The parsing of actions, such as those of Hank Morgan, to present the anti-gay policies as either neutral or somehow at worst non-discriminatory ideological differences just don't hold up.

I find a good test is to replace the word(s) "gay" or "homosexual" with "black" or "African American." If after doing that your statement is not obviously offensive, then you might actually be on to a legitimate point of debate. If, in the much more likely case, it reeks of obvious racism, then chances are good you just have anti-gay bigotry.

"They reject students - both black and white - on the basis of their beliefs about blacks, not their race per se."

That seems pretty clearly racist, no? You wouldn't actually be debating and defending a policy using that reasoning, right? Well, if that's the case, it's a pretty good chance your defense of the CLS anti-gay policy is nothing other than bigotry too.

Hank Morgan said...

Paul, your point is a perfectly fair attack on the CLS's ideology, which is an ideology I didn't defend. But I think you miss the point at issue in this case. In this case, Hastings doesn't say that CLS's ideological views are unacceptable, but that its membership policy is.

To illustrate the difference, consider two white-supremacist groups: one whose membership is open to all and another that limits membership to people who espouse a white-supremacist ideology. I suspect you would support Hastings's right to deny recognition to both groups. In other words, you would probably advocate viewpoint discrimination against racist groups, and the law would probably allow such viewpoint discrimination.(It wouldn't have anything to do wth the club's membership policies.)

In this case, it seems that CLS is arguing that Hastings is using a formally neutral policy (all groups must have open membership) to engage in viewpoint discrimination against a group that opposes homosexual acts. Hastings hasn't made the argument you make--which is that viewpoint discrimination against homosexuality opponents is acceptable. Instead, it argues that its policy is viewpoint-neutral--or at least that's what Professor Dorf argues that Hastings should argue.

See his earlier post: "But so far as the key First Amendment issue goes, there is no discrimination against any viewpoint, religious or otherwise, by Hastings."

Paul Scott said...

I think the position that Hastings is making a viewpoint neutral position on student groups is almost certainly disingenuous. I doubt, for example, that HLS is prepared to tell the G&L law student group that to maintain recognition that they must accept as members those persons that are openly hostile to gays. Likewise, though I doubt any such member of the student body exists, I doubt that the African American law student's group would be required by HLS to accept a member of the Clan.

If that is their policy, then I'll retract it. If I were part of the CLS and HLS purported to claim that the policy truly was one of neutrality, I would send in members to every student organization and take up hostile positions from within the groups as a means of testing HLS' commitment to its purported neutrality.

Of course, I think a position of neutrality is neither necessary nor good policy. HLS should not be funding or recognizing CLS as a student organization simply as consistent with its policy against sexual orientation discrimination.

Paul Scott said...

Also, I am not, to my understanding, missing the point. HLS has no policy that a student organization cannot hold certain views - even blatantly racist ones. I don't see that as material.

CLS is not merely holding a position, they are forbidding membership on the basis of that position. Since that position necessarily excludes all gays and lesbians, the membership exclusion is discriminatory. That the policy might also exclude non-gays on the basis of their beliefs does not to me seem a particularly meaningful point.

If it is, then, yes, I am missing some point.

Michael C. Dorf said...

In response only to Hank Morgan's original query, according to its own cert petition, the CLS membership policy 1) would exclude me and him because of our "advocacy . . . of a sexually immoral lifestyle," i.e., our stating that we think there's nothing immoral about non-straight sex between consenting adults; but it would also exclude 2) people who are guilty of "unrepentant participation in . . . a sexually immoral lifestyle," i.e., non-celibate gays, lesbians, transgendered and bisexual persons. That second exclusion is person-based, not idea-based or advocacy-based. CLS might say that it doesn't discriminate on the basis of sexual orientation because it also excludes adulterers, but using Paul's useful device, we see that doesn't cut it: One could not defend against a charge of race discrimination by saying that one refuses to hire African Americans or adulterers.

Hank Morgan said...

I'll try this one more time. It seems like you give the game away by saying that the group bans "non-celibate" gays and lesbians. That sure doesn't sound person-based to me, unless you want to argue that celibacy is impossible. And I actually read the CLS by-laws to be even more expansive than that. If you want to be a CLS member, you can be gay and non-celibate, but you have to feel bad about it (I think that's what it means to be "repentant"). Likewise, the CLS probably condemns masturbation, and asks its members to agree with that moral stance, even though it's likely that few live up to that moral stance.

In other words, it's exactly like a Vegetarian Society only allowing members who agree that it's wrong to eat meat, even if many of those members just can't help themselves when 25-cent wing night rolls around at the local pub.

Now, you could say that believing that gays and lesbians should practice celibacy is a different sort of moral belief, one that's more discriminatory and less acceptable than believing that animals shouldn't be consumed by humans. But then you're practicing viewpoint discrimination, which is going to be a harder sell with the Supreme Court.

Which is why I agree with what I took to be your original point, which was that Hastings's best strategy is to argue that they have a viewpoint-neutral policy, and that the CLS is an outlier in the way that it excludes dissidents from membership.

(Interestingly, the Hastings Animal Law Society seems to have the right track. According to its bylaws, anyone can be a member, but in order to be an officer, you must agree "to comply with the mission and goals of the Animal Legal Defense Fund." If I were in charge of the national CLS, that member/officer distinction would seem to be a good idea.)

Michael C. Dorf said...

To describe the CLS policy as not anti-gay because people can either be celibate and gay or feel bad about being gay is still to discriminate, it seems to me. Now perhaps the CLS policy is simply that one cannot affirm their statement of faith while having unrepentant sex outside of marriage, in which case CLS would still be effectively discriminating based on sexual orientation, given that CA doesn't recognize same-sex marriage. Given that CLS wholeheartedly endorses THAT position, though, i think it should be estopped from saying this is just the impact of the state's policy on marriage. A more difficult issue might be presented by a "married students club" that relied on the state's definition of marriage. These and other difficulties seem to affirm the wisdom of the simpler version of the Hastings rule: everyone must be admitted.

As to leadership positions, other courts have drawn this distinction, although i'm not sure how sound it is.

And now, I must grade those exams . . . .

Prup (aka Jim Benton) said...

After having read the posts here and at FindLaw, I find that neither position, when held up to 'real-world scrutiny' is supportable, and that several important points are missing from the discussion.

In the first place, I would argue that no student group is 'open to all students equally.' I am 63 years old, with a bad back, a torn rotator cuff, and arthritic knees, who has never driven an automobile in my life and can play no musical instrument. Were I to re-enter college tomorrow, would I be allowed to join the basketball team, the band, or an automobile society, or should I be? (Of course, it is arguable that I should -- were I so crazy -- be allowed to 'try out' for the first two and fail to earn membership, but the third would have no similar 'tests' that need passing, yet I could imagine being excluded.)

More importantly, I can not see hopw a group that advocates for a particular point of view can accept those students who oppose that point of view. For example, were there to be an atheists' society at a given university or graduate school, or a society devoted to the promotion of science, and were the "Hastings Rule" to be applied, what would prevent a group of believers -- in the first case -- or creationists in the second from joining en masse and, by majority vote, changing the idea of the society 180 degrees from that stated in its name and desired by its founders.

The second overlooked point deals with the name and 'mission statement' of the CLS, which, I would contend, 'hijacks' the name 'Christian' for a relatively small sub-group of Christians. A great many Christians -- in fact the vast majority worldwide and a substantial majority in this country -- would not accept the CLS as representing them or their position. (Certainly Roman Catholics -- even if they concurred in this particular issue -- would disagree with many positions taken by the group, as would many mainstream protestant groups even on this specific issue.)

Would, for example, a group of Lubavitchers, Hasidim, or even "Jews for Jesus" or "Christian Zionists" be allowed to set up something they called THE Jewish Society at a University and then exclude Reform, Conservative, Reconstructionist, and even many Orthodox Jews from membership.

To use a more secular analogy, would a group at a University be allowed to call itself THE Honors Society if it allowed membership to those, and only to those, who received the highest grading in History or in Classical Languages, and not to anyone whose achievements were in another field?

I would question the recognition of the group on this ground alone unless they were willing to rename themselves so as to more accurately represent the narrow slice of "Christianity" or "Christian Principles" they in fact represent.

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