By Peter Schmidt

Washington
Chronicle.com

The U.S. Supreme Court announced today that it had agreed to decide whether a California law school can legally deny recognition to a Christian students' group because it bars gay and lesbian members for religious reasons.

In agreeing to weigh in on a lawsuit pitting the Christian Legal Society against the University of California's Hastings College of Law, the Supreme Court appears poised to offer the nation's colleges eagerly awaited guidance on legal questions that they have found increasingly difficult to answer as a result of conflicting lower court rulings.

Although the U.S. Court of Appeals for the Ninth Circuit upheld the Hastings law school's decision to deny recognition to the group under its nondiscrimination policy, the U.S. Court of Appeals for the Seventh Circuit blocked Southern Illinois University at Carbondale from applying a similar policy to a Christian Legal Society chapter in 2006, saying the university's policy probably infringed on the group's "freedom of expressive association."

Southern Illinois settled the lawsuit by agreeing to recognize the student group before the Seventh Circuit could issue a final ruling in the dispute, and other colleges, including Arizona State University and the University of Toledo, have similarly agreed to accommodate Christian Legal Society chapters to extract themselves from litigation. A U.S. District Court judge, relying heavily on the Ninth Circuit's decision, held in May that the University of Montana had not violated the rights of a Christian Legal Society chapter there by refusing to give it funds from the university's Student Bar Association.

Conflicting Rulings in the Lower Courts

In its brief asking the Supreme Court to take up the case, the Christian Legal Society said the decision by the Ninth Circuit, which covers California, Montana, and seven other Western states, "squarely conflicts" with the ruling by the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin.

The brief argued that the Ninth Circuit's ruling conflicts with two other lines of Supreme Court precedents: those allowing organizations such as the Boy Scouts to deny membership and leadership roles to people who could adversely affect their ability to promote their message; and those, such as a 1995 ruling involving the University of Virginia, requiring colleges to recognize religious groups and other student organizations under the First Amendment's protection of free speech and free association.

"The Ninth Circuit has given public university officials the green light to derecognize religious student groups simply because they require their officers and voting members to agree with their core religious beliefs," the brief said. Because of its ruling, national organizations such as the Christian Legal Society, which has chapters at more than 70 law schools, "cannot maintain uniform national membership criteria for all their chapters."

Lawyers for the Hastings College of Law had argued in a brief urging the Supreme Court not to take up the case that the Southern Illinois case had not progressed far enough for the Seventh and Ninth Circuits to be considered in disagreement. It also argued that the Supreme Court precedents requiring colleges to recognize religious organizations and other student groups had held that the colleges needed to treat all groups equally, but had not required colleges to give some organizations the exemptions from campus policies of the sort apparently sought by the Christian Legal Society at Hastings.

In a statement heralding the Supreme Court's decision to take up the case, Kim Colby, senior counsel for the Christian Legal Society's advocacy division, said, "Public universities shouldn't single out Christian student groups for discrimination."

Gregory S. Baylor, a laywer for the Alliance Defense Fund, a Christian legal-advocacy group assisting the legal society in the case, said, "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."

On the other side of the dispute, Ethan P. Schulman, a lawyer representing the law school, said the bottom-line question posed by the case "is whether public universities and law schools have a constitutional obligation to subsidize discriminatory organizations on campus." He added: "The Christian Legal Society is seeking a ruling that would treat religious groups differently than all other student groups by exempting them from nondiscrimination and open-membership policies."