Comments on Dorf on Law: Another Perspective on Christian Legal Society v. ...

yes .. McConnell say it right this time :)
2010-11-14T12:39:31.271-05:00
yes .. McConnell say it right this time :)تقنية المعلومات

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2010-10-16T04:06:08.345-04:00

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2010-08-20T23:23:47.445-04:00

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If the state of affairs at Hastings is fairly repr...

2010-02-17T17:06:49.972-05:00

If the state of affairs at Hastings is fairly represented in the CLS brief,as applied may pose a significant challenge for Hastings. From the CLS Brief:

The record further indicates that Hastings’ Policy was not applied where it would interfere with the identity and message of a student group. For example, the La Raza bylaws restrict “policy” membership to students “of Raza background” (meaning persons of Latino or Mexican descent) who timely pay their dues and regularly attend meetings. Id. at 192. Only “policy” members have the right to vote. Ibid. La Raza also has a category of “associate” members that “encompasses all [Hastings] students * * * who are of Raza background.” Ibid. “Associate membership can be conferred by the body upon a non-Raza and nonlaw students as an honorary gesture.” Ibid. While recognizing that the La Raza bylaws “restrict voting rights to persons of La Raza background,” Director Chapman certified those bylaws as “in compliance with the Nondiscrimination Compliance Code,” in the same year in which she refused registration to CLS.

In response to Sam's argument, I'll just s...

2009-12-15T10:17:09.580-05:00

In response to Sam's argument, I'll just say that I hope he proves right about the viability of the compromise. I respond to some of what Hank says here in my response to his similar comment on the next post up.

Thanks for great comments, by the way!

Mike, I think you are committed to the view that H...

2009-12-15T01:23:44.551-05:00

Mike, I think you are committed to the view that Hastings is permitted not to provide email access or funds to Hank Morgan's Vegetarian Society, if this society restricts membership *in any way* (to those who profess a certain belief system, to those who are willing to sign a statement committing themselves to a vegetarian lifestyle, and so on). Right?

On the issue of whether there is room for SCOTUS to decide this case on the model of the compromise you suggest (with which I concurred in a previous comment), you claim that Rosenberger's insistence that there is no relevant difference between funding and access means that SCOTUS is likely to decide the case in an all-or-nothing way. But I'm not so sure about this. The point in Rosenberger was that there is no relevant difference between funding and access *in a context in which a government entity is engaging in viewpoint discrimination*. But here it is going to be difficult for SCOTUS to argue that there is *viewpoint* discrimination.

[Complication: Hastings policy is *facially* viewpoint-neutral. But CLS argues that the policy has been applied with an evil eye and an unequal hand (so to speak), i.e, that the policy *as applied* is not viewpoint-neutral. This argument is based on the claim that the policy has only ever been enforced against CLS, and has never been enforced against any other membership-limiting student organization. Now I know that the record suggests that no student organization other than CLS has ever booted students out. But the record also suggests that other organizations *could* boot students out under certain conditions. And this seems to be what matters from the point of view of the policy itself.]

The policy says that the University reserves the right not to provide access or funding to membership-limiting student groups. There is no viewpoint discrimination here. The reason why there is room for SCOTUS to distinguish between access and funding is this. The purpose of the student group "recognition" policy is to facilitate the exchange of views of different kinds. But by denying CLS access to its email system, Hastings does not facilitate the exchange the views of different kinds, and thus runs afoul of the purpose behind its own policy. However, direct funding is a different matter entirely, at least if the funding need not be directly connected to the spreading of CLS's message to Hastings students (and, as far as I can tell, it isn't). In this way, too, the Hastings case differs from Rosenberger. Suppose, for instance, that CLS applies for money to fund a retreat at a fancy resort for student members of CLS. I see no reason why Hastings should not be able to deny this funding request, based solely on the fact that membership in CLS is not open to all students.

So I have yet to be persuaded that the Rosenberger precedent takes the compromise position off the table.

It seems to me that the two Michaels are talking p...

2009-12-14T23:54:18.898-05:00

It seems to me that the two Michaels are talking past each other, just a bit.

McConnell argues that this case is really about whether an organization can define itself ideologically.

Michael Dorf, on the other hand, says that there is a policy that "denies official recognition to ANY student organization that excludes ANY student for ANY reason." Mr. Dorf's argument is premised on the view that the CLS "denies" membership because it asks all members to affirm a particular belief system.

The important point to note is that gay students can join the CLS. They just have to believe that homosexual activity is wrong. They can even be actively gay, as long as they feel bad about it. In other words, people are only excluded by their refusal to express particular beliefs, rather than by their attributes, or even by their behavior. (By the same token, the CLS also excludes non-Christians from membership, but I don't understand Hastings to be denying recognition on that ground.)

The relevant comparison would be a Vegetarian Society that requires all members to sign a statement that they will strive to refrain from eating meat. Is anyone "excluded" from the Vegetarian Society by this policy? Of course, but I would argue that they are only excluded by their disagreement with the substantive views of the group. Professor Dorf might distinguish these cases on the ground that people are not born with a propensity for meat-eating (as far as we know), while people are born with a propensity for homosexual behavior.

I wonder if the Hastings policy, as stated by Professor Dorf, would also deny recognition to the Vegetarian Society if it had this requirement? It's not clear, and it's also not clear how many student groups require members to adhere to any belief statement. Do we have a sense of whether an ideological pre-condition for membership is common among law student groups?

McConnell said what I would have said if I were mo...

2009-12-14T14:38:40.383-05:00

McConnell said what I would have said if I were more eloquent and better mannered.