Analysis: A fatal stipulation
on Jun 28, 2010 at 11:35 pm
Analysis
The Supreme Court’s latest foray into the rights of student religious organizations on state-operated college campuses might have added to the recent pattern of expanding those rights. But, along the way toward such a decision, a legal team’s stipulation narrowed the case down to a dispute over factual concessions, and the student group lost, having to live with its lawyers’ choice in Christian Legal Society v. Martinez.
Justice Ruth Bader Ginsburg’s cautious opinion, roundly condemned by the dissenters as an exercise in “political correctness,” did not make much new law. The bottom line: state college leaders may reserve official status on campus to groups that admit all comers, provided that the policy genuinely seeks and promotes that aim and does not single out any group because of what it believes.
In past decisions, the Court has shown an evident sympathy for campus groups that coalesce around students’ religious beliefs — apparently, a growing phenomenon across the nation. The Court found that such groups’ plea for recognition, or equal access to campus benefits, had been denied because of their faith orientation, and ordered them to be treated equally. The Christian Legal Society chapter at the state’s Hastings College of Law in San Francisco thought it was that kind of a victim.
The Society’s members  treat “unrepentant homsexual conduct” as a sin, and, true to their beliefs, insisted that those who would rise to leadership in its ranks had to embrace that view. But Hastings law school officials would not give it access to the special benefits that go with being an officially recognized student organization. The exclusion, the Society contended, was because of its religion, and not because of any neutral policy, and argued that the denial was unconstitutional.
As the case unfolded before the Supreme Court, the Justices appeared to be uncertain just what the policy was. So, before agreeing to hear the case, they called for the record that the lawyers had made in lower courts. The most important discovery the Court made in going through that record, it turned out, was that the Society’s lawyers had agreed to a joint stipulation that the policy was an “all-comers” policy — that is, recognition was available to any student group at Hastings Law that allowed any student to take part in that group, including rising to leadership.
That, in fact, was where Justice Ginsburg’s ruling on Monday began.  In what amounted to lecture to the lawyers on the meaning of a stipulation, the Court said it was rejecting the Society’s “unseemly attempt to escape from the stipulation.”
The Society, the opinion said, was now attempting to “shift its target” to a written campus policy that, as the Society read it, did not insist on open membership policies for student groups, but rather singled out religiously oriented groups for exclusion while letting other groups confine their membership to those sharing common views. (Ginsburg even quoted from a standard legal reference work on what a stipulation entails, and how it affects the way a case develops.)
Both the trial and appeals court, Ginsburg noted, had relied upon the stipulation, and so judged whether an “all-comers” policy, aimed at preventing discrimination within student organizations, violated the Society’s free speech or religious rights. Like the lower courts, the Supreme Court upheld the non-discrimination policy explicitly on the premise that it was, indeed, an “all-comers” approach — at least for purposes of this litigation.
So finding, the Court majority said that what Hastings had created was a “limited public forum,” and it was constitutionally entitled to provide equal access to that forum only to groups with an open-membership (and open-leadership) pollicy, to foster non-discrimination and more varied social education.  The civic sentiment that guided the Court to the result was perhaps best stated in a passage in Justice Anthony M. Kennedy’s separate concurrence: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”
The vigorous dissent read the record of the case differently from the majority. The Society, Justice Samuel A. Alito, Jr., wrote for the dissenters, was excluded under the policy as written — a policy, he said, that singled out student groups for exclusion because of their beliefs. Only one group — the Society — has ever been denied official status under that policy, the dissenters noted.  A supposed “all-comers” policy, Alito wrote, “was nowhere to be found until it was mentioned by a former dean in a deposition taken well after this case began.” The stipulation, the dissenters said, was in fact not a concession by the Society’s lawyers that its exclusion had been based on an all-comers policy.
The debate over which policy was at issue also drew in Justice John Paul Stevens, who wrote a separate concurring opinion to dispute the dissent and, indeed, to argue that the underlying policy itself was valid even if it did involve a policy of selection of acceptable groups. What was involved, Stevens wrote, is not a legal question, but a policy question — and that was for the college officials to decide.
The 5-4 majority in the decision, after finding that an all-comers policy would be valid if actually pursued neutrally, left an opening for the Society to try to make an argument — when the case returns to the Ninth Circuit Court — that the Hastings policy had, in fact, operated as a mere pretext for an underlying, anti-religious policy of selectivity. But even on this point, the Court’s members could not agree: Justice Alito said he could not see how, procedurally, the Society could now raise that point
