Christian Students Claim Calif. Law School Discriminated Against Group When It Denied Student Funding

By Christopher Neefus | April 7, 2010 | 10:48 PM EDT

Hastings College of the Law in San Francisco. (Photo courtesy of the University of California).

( – The U.S. Supreme Court later this month will hear what both sides agree will be one of the most important religious freedom cases to come before the court in years.

The case centers on a Christian Legal Society affiliate that was denied certification by a public university law school because the law students’ group requires its members to share core religious beliefs.
Constitutional experts gathered Wednesday at the National Press Club in Washington, D.C., to preview the case.
Advocates for the Christian law students said the law school engaged in what amounts to viewpoint discrimination against the student group.
“This is an engine for discrimination that they’re advocating,” said James Bopp, Jr., the general counsel at the James Madison Center for Free Speech, and an attorney arguing on behalf of the students.
But Ayesha Khan, legal director for Americans United for Separation of Church and State, defended the law school, asserting that the government is free to choose what speech to fund.
“I think (the case is) about the government’s ability to allocate its funds as it wants to,” she said. “The question boils down to, in this case: Is this discrimination or not? And that’s really the main point of contention between the parties here. I don’t think the policy, the anti-discrimination policy is discriminatory.”  
The conflict arose when a chapter of the Christian Legal Society (CLS) applied for a modest amount of funding and access to campus classrooms available to qualifying groups at the University of California, Hastings College of the Law.
Hastings, however, denied the group special status because it refused to comply with the non-discrimination regulations that the school claims it imposes on its more than 60 student groups -- that they not discriminate on the basis of religion, sexual orientation or a host of other classifications like race and gender.

At issue: in order to become a core member or a leader within CLS, members had to profess the particular views of the group -- including a pledge of intent to limit sex to the confines of traditional marriage. The university interpreted that as a violation of the school’s regulations, and denied funding to CLS, which petitioned for an exception because its views were religiously based.

The Alliance Defense Fund (ADF), a Scottsdale, Ariz.-based group which helped fund the Supreme Court appeal, said the Christian Legal Society is being discriminated against because it would be forced to alter the Christian message of the group if they accept other students as members and leaders. 

The qualifications to hold leadership positions are completely consistent with the way other groups operate, according to ADF Senior Legal Counsel Gregory S. Baylor. 

“Just as all student groups have the right to associate with people who share common beliefs and interests, Christian student groups have the right to be Christian student groups,” Baylor said.

“Requiring leaders of a Christian club to live by a Christian code of conduct is no different than an environmentalist club requiring its leaders not to be lumberjacks,” Baylor added.

The high-profile case has attracted dozens of “friend-of-the-court” legal briefs about the implications of the case on both sides of the case. 

In one brief submitted in favor of the law school, Americans United for Separation of Church and State argued that denying the funding to CLS was the prerogative of the government, and that it did not infringe upon their freedom of association and freedom to exercise their religion under the First Amendment. 

Khan, was also on the panel Tuesday, said that the policy that groups must accept all comers was reasonable, and was not discriminatory against Christians specifically -- even if accepting homosexuals or atheists could hurt CLS more than other groups in delivering a message to students. 

“At most, the regulation has a disparate impact, meaning it affects some groups more dramatically than other groups,” Khan said. “But the court again has said that an incidental effect on some speakers or messages but not others doesn’t render a policy discriminatory.” 

Khan, a Muslim activist and liberal lawyer, is perhaps best known for her role as lead attorney in the 2003 effort to have former Alabama Chief Justice Roy Moore stripped of his seat on the Alabama Supreme Court after he installed a statue of the Ten Commandments in the state courts building in Montgomery, Ala.

She argued that the Christian Legal Society was not being “forced” to do anything, but had instead made a choice not to accept public funds that came along with stipulations.
“No one is being forced to do anything here,” Khan said. “CLS’s brief, many of its amicus briefs in support of CLS, used the words like ‘forced,’ ‘required,’ ‘compelled.’ Mr. Bopp’s brief has one of those words 60 times.
“This is like me telling my kids, ‘You get your allowance if you do your chores.’ That’s a real choice, and I’ll tell you, my daughter wants her allowance and my son doesn’t -- his room is a mess and hers is pristine.”
CLS, she said, simply did not want its “allowance.”
“CLS wants a special exemption from a policy that applies to everyone else,” she added.
But Bopp, however, told the university was improperly bundling students’ access to a public forum to freely talk about their ideas in law school classrooms together with access to money – in the process, violating the First Amendment rights of CLS members.
He said the law school was discriminatory because it only targeted groups with a particular viewpoint for exclusion from the funding – in this case, a religious viewpoint.
Discrimination on the basis of religion is a violation of federal anti-discrimination law.
“The (non-discrimination) policy specifically targets religion and they’re a religious group,” Bopp, who serves as vice chairman of the Republican National Committee, said. “(I)t’s only application is to people who are opposed to homosexual marriage. (I)t only applies to them, so that is, again, based upon their belief and it doesn’t apply to anybody else."
He added: “No one else (was) thrown out, only those who believe in traditional views of marriage, so it’s not a disparate impact, it’s the only application of the policy.”
The Supreme Court is expected to being hearing the case, Christian Legal Society v. Martinez, on April 19.