Word In Action Ministry

9th Circuit Rules Law School Cannot Be Required to Recognize Religious Student Group That Discriminates

Pamela A. MacLean

The National Law Journal

March 19, 2009

The University of California Hastings College of the Law cannot be required to recognize and fund a religious student group that discriminates in the selection of members and officers, the 9th U.S. Circuit Court of Appeals ruled on Tuesday.

Just a week after hearing arguments in the case, the 9th Circuit issued a one-paragraph, unpublished order that Hastings' open membership rule prohibiting discrimination based on religion or sexual orientation of members is "viewpoint neutral and reasonable."

The Christian Legal Society made clear after the March 10 argument that it would appeal if it lost at this stage. Christian Legal Society v. Kane, No. 06-15956.

Hastings' attorney, Ethan Schulman of Folger Levin & Kahn in San Francisco, said the issue has arisen repeatedly in test cases at various university campuses across the country. The most recent was Feb. 6 in San Diego. In that case, U.S. District Judge Larry Burns granted summary judgment for San Diego State University against a challenge by Christian student groups.

The CLS case is one of a half-dozen test cases the group has filed in recent years against law schools around the country over similar nondiscrimination pledge requirements. The 9th Circuit decision to side with Hastings may put it in direct conflict with the 7th Circuit.

CLS attorney Timothy J. Tracey, of the Springfield, Va.-based Center for Law and Religious Freedom, argued that the school's denial of official recognition deprives it of some funding, access to recruit students at official events and access to the school Web site and other publications. The school does provide meeting space.

The 9th Circuit panel found that Hastings' rule requiring open voting membership in all student groups, even if members disagree with the mission of the group, is permitted under the 9th Circuit's decision in Truth v. Kent School Dist., 542 F.3d 634 (9th Cir. 2008), which currently has an application for U.S. Supreme Court review pending.

Subscribe to The National Law Journal