The Battle of Hastings: Supreme Court Decision about Law School's Anti-Discrimination Policy Tests Religious Right Power on College Campuses - and Elsewhere

By Bathija, Sandhya | Church & State, February 2010 | Go to article overview

The Battle of Hastings: Supreme Court Decision about Law School's Anti-Discrimination Policy Tests Religious Right Power on College Campuses - and Elsewhere


Bathija, Sandhya, Church & State


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 con-duct" 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 filed friend-of-the-court briefs at the district court and the 9th Circuit, and plans to file a third brief with the U.S. Supreme Court on behalf of Hastings in the case.

"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 need-ed to be heard."

But Hastings, Outlaw and Americans United, which also 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. …

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