Lawsuit against Hastings College of Law by Christian group found frivolous

Kate Fechter

The Supreme Court has ruled on the case between Hastings College of Law and the student organization Christian Legal Society, which may affect the future of limited public forum on the campuses of many universities in the United States. What may be interesting about this case are the questions it leaves unanswered.

Limited public forum is defined on as: “public property that the state has opened for use by the public as a place for expressive activity.” The website uses university meeting facilities, municipal theaters and school board meeting rooms as examples of limited public forum.

On June 28, 2010, the U.S. Supreme Court ruled that Hastings College, located in San Francisco, Calif., did not violate Christian Legal Society’s First and Fourteenth Amendment rights by refusing to recognize them as a Registered Student Organization or RSO.

According to, which has the case posted online, the Christian Legal Society, CLS, at Hastings College of Law filed a suit against Hastings in October 2004 claiming their First and Fourteenth Amendment rights to free speech, expressive association and free exercise of religion had been violated. Hastings rejected CLS’s application for RSO status because the group’s bylaws went against an “accept all comers” policy, specifically the group does not allow homosexuals or those who hold religious beliefs different than their own to be members.

“The case hinges on this being a limited public forum that Hastings has recognized for these student organizations,” said Jeffrey Jackson, professor at Washburn University School of Law. “If someone establishes a limited public forum they are allowed to set rules for its use, so long as the rules are consistent with the purpose of the forum. Hastings says that RSO status is open to all student groups but to get this special status you must accept all student, an accept all comers policy.”

Groups with RSO status are given funds from student fees, use of the facilities for meetings and other events and privileges for communication methods. The district court in California ruled in Hastings favor in April 2006. A panel of the Ninth Circuit Court of Appeals heard oral argument in this case on March 10, 2009. The panel upheld the district court’s decision on March 17, 2009. In May 2009, CLS filed a petition for writ of certiorari in the Supreme Court, seeking a reversal of the Ninth Circuit’s decision against CLS. The Supreme Court upheld the Ninth Circuits’ ruling five to four in June of this year. CLS has a press release on their website

“All college students, including religious students, should have the right to form groups around shared beliefs without being banished from campus,” said Kim Colby, senior counsel at the CLS Center for Law & Religious Freedom, in the press release. “Today’s ruling, however, will have limited impact. We are not aware of any other public university that has the exact same policy as Hastings.”

The five justices who ruled in favor of Hastings were Ginsberg, Stevens, Sotomayor, Breyer and Kennedy. Justices Alito, Roberts, Scalia and Thomas filed the dissenting opinion. The dissenters don’t think Hastings had an accept all comers policy, just a nondiscrimination policy, and that Hastings invented the policy after the case began.

“If it is not an accept all comers policy, it actually discriminates against the group’s freedom of speech and freedom of association rights,” said Jackson. “If it is just a non-discrimination policy, there is a question as to whether that is constitutional because you are not allowed to discriminate on the basis of a viewpoint of an organization.”

The justices who ruled in favor of Hastings did not comment on whether or not the non-discrimination policy was constitutional in itself, except Stevens. The dissenters have stated it is not constitutional.

“What we have learned is if you have an accept all comers policy that’s fine, but we don’t know whether just having a non-discrimination policy is a reasonable restriction on a limited public forum,” said Jackson. “The takeaway from this case for universities is that an accept all comers policy is okay but the rest is still a gray area. If you want to insulate yourself, make it an accept all comers policy and apply it that way too. You can’t apply it in a preferential way.”