Academic journal article Brigham Young University Law Review

Nondiscrimination and Religious Affiliation: The Ninth Circuit Upholds the Denial of Registered Status to a Christian Student Club in Alpha Delta Chi-Delta Chapter V. Reed

Academic journal article Brigham Young University Law Review

Nondiscrimination and Religious Affiliation: The Ninth Circuit Upholds the Denial of Registered Status to a Christian Student Club in Alpha Delta Chi-Delta Chapter V. Reed

Article excerpt

I. INTRODUCTION

"[E]galitarianism has become one of the most commanding drives in U.S. higher education, a nearly ubiquitous pressure on every segment of and activity in academe."1 As egalitarian programs in higher education have become more prevalent, constitutional challenges to those programs have likewise increased.2 Recently, Hastings Law School adopted a nondiscrimination policy that denied registered status to any student club that refused to adopt an allcomers policy, meaning that clubs could not restrict membership on any basis.3 As a result, the university denied recognized status to a Christian club that required its members to espouse Christian belieft.4 The club challenged the policy in Christian Legal Society v. Martínez but lost.5 The Supreme Court, for prudential reasons, declined to address the constitutionality of a policy that would deny registered status only to groups that discriminated on particular bases.6

In Alpha Delta Chi-Delta Chapter v. Reed, the Ninth Circuit addressed the very question that the Supreme Court left unanswered in Christian Legal Society.7 The Ninth Circuit analyzed the constitutionality of San Diego State University's nondiscrimination policy, which allows student groups to discriminate on any basis except for prohibited criteria - race, religion, sex, sexual orientation, and others.8 Two Christian SDSU clubs sued, arguing that the policy violated their First Amendment rights of speech, expressive association, and free exercise of religion.9 The Ninth Circuit rejected these claims, relying on its own precedent and on Christian Legal Society.10

The Ninth Circuit's reliance on Christian Legal Society was misplaced because the Supreme Court strongly distinguished a policy like the one at SDSU, which prohibits only some forms of discrimination. In addition, the Ninth Circuit failed to reconcile its decision with the Supreme Court's opinion in Rosenberger v. Rector and Visitors of the University of Virginia11 and erred by holding that SDSU's policy was viewpoint-neutral.

II. FACTS AND PROCEDURAL HISTORY

SDSU operates a student organization program in which clubs can apply for recognized status,12 a designation that provides various university benefits, including funding, rights to use the university's logo and name, use of university rooms and office space, and publicity in school publications at no cost.13 The plaintiffs in the case were a Christian sorority, Alpha Delta Chi, and a Christian fraternity, Alpha Gamma Omega.14 The plaintiffs applied for recognized status, but the university denied the applications because of the clubs' requirement that members profess Christian beliefe.15 That requirement, according to university administrators, violated the school's nondiscrimination policy, which reads:

On-campus status will not be granted to any student organization whose application is incomplete or restricts membership or eligibility to hold appointed or elected student officer positions in the campus-recognized chapter or group on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under federal law.16

Thus, unlike officially recognized clubs, the plaintiffs had to pay to use university buildings for events and meetings.17 Additionally, although the plaintiffs could distribute flyers and try to recruit members, they had to stay in areas open to anyone, "such as the 'free speech steps' of the student union and the wall next to the university bookstore."18

There was strong evidence that this policy was not applied uniformly to all organizations at SDSU.19 Although the university denied plaintifís' applications because of their religious requirement, the university had granted recognized status to other religious student groups that had similar requirements, including a group called the Catholic Newman Center. …

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