Campus ‘All-Comers’ Policies Prone to Abuse, Rights Groups Warn

Published August 17, 2010

Students returning to public colleges and universities for the fall may discover the rules governing campus organizations have changed, and not necessarily in their favor, some civil liberties groups warn.

The U.S. Supreme Court in June ruled a public university may require an officially recognized student group to accept any student as a voting member or officer even if the student does note share the group’s core beliefs.

Strengthens ‘Political Correctness’

The case, Christian Legal Society vs. Martinez, stemmed from a dispute at the University of California’s Hastings School of Law in San Francisco, where the campus Christian Legal Society required members to support its statement of faith and renounce “unrepentant participation in or advocacy of a sexually immoral lifestyle.”

Law school officials first said the CLS rules violated the university’s nondiscrimination policy, but later argued the group was violating a university policy requiring recognized student organizations to accept “all comers.”

The Supreme Court agreed. In a sharply divided 5-4 ruling, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Anthony Kennedy, Sonia Sotomayor, and now-retired Justice John Paul Stevens, wrote, “CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition.”

“No Hastings student is forced to fund a group that would reject her as a member,” Ginsburg concluded.

Alito: Policy Is ‘a Pretext’

Justice Samuel Alito, in a dissent joined by Chief Justice John Roberts and Justices Clarence Thomas and Antonin Scalia, argued the majority was establishing a principle of “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” They argued the Court was providing universities a “handy weapon” for rooting out unpopular groups on campus.

“The accept-all-comers policy is not viewpoint neutral, because it was announced as a pretext to justify viewpoint discrimination,” Alito wrote.

Membership Rules ‘Sound’

“The Court’s holding that schools are free to insist that student organizations must take all comers is just one more instance of judges imposing their notions on everyone else,” said George Leef, director of research for the John William Pope Center for Higher Education Policy in Raleigh, North Carolina.

Leef said the court erred in ruling student fees amount to state subsidies.

“There are sound reasons why organizations, whether it’s the CLS, College Socialists, the Chess Club, or any other, would want to have membership requirements,” Leef said. “The rest of the world operates that way, and just because some school funds are involved, campus groups should not lose the freedom to impose limitations on who may join.”

‘All-Comers’ Not Mandated

Greg Lukianoff, president of the Foundation for Individual Rights in Education, notes the Supreme Court’s decision does not require universities to adopt “all-comers” policies.

“The most important thing that people need to know is that all the Supreme Court said was that if a university wants to have a student group policy that is an ‘all-comers’ policy, it may do so if it chooses to,” Lukianoff said. But Lukianoff predicts many universities will read the decision as giving administrators a green light to impose more restrictive speech regulations on students and student-led organizations.

“What’s going to start happening is universities are going to claim that they’ve always had all-comers policies. And they’re going to start passing all-comers policies,” he said. “And since I’m used to seeing a fair amount of misrepresentation at universities, they’re going to interpret the Supreme Court as essentially requiring them to have ‘all-comers’ policies. Which [the decision] absolutely does not say and did not do.”

“The practical results of this case will be we see a lot of cases to ‘derecognize’ groups, particularly evangelical Christian groups on campus, and a lot of attempts to use the wording of the opinion to justify everything from speech codes to speech zones,” Lukianoff explained.

Precedent Already Cited

Only a handful of colleges have “all-comers” policies for student groups, but Lukianoff says he believes that will change as university lawyers begin to examine the decision and note how much deference the court gives to university administrators.

Just a few days after the Supreme Court ruled in CLS vs. Martinez, lawyers for the Los Angeles Community College District cited the case in their own speech-code lawsuit currently pending before the Ninth U.S. Circuit Court of Appeals.

In a supplemental filing to the court in Lopez vs. Candaele, the community college attorneys argued Ginsberg’s holding in CLS vs. Martinez requires the court to “defer to decisions of educational administrators, even in the free speech context and even in higher education.”

Lukianoff says he expects to see a “subtler effect” on campuses as well. “A lot of groups that try to offer an alternative point of view are going to be watered down and otherwise co-opted,” he said.

‘Get Stories on YouTube’

Lukianoff says universities should understand why adopting all-comers policies may not be in their best interests, but “universities are going to adopt them nonetheless.” He urges student organizations to prepare to thoroughly document administrators’ efforts to deny official recognition to groups with unpopular points of view.

“It’s important to get these student stories on YouTube as they start happening, to get interviews with them, to watch the experience of these groups getting thrown off campus,” he said.

Ben Boychuk ([email protected]) is managing editor of
School Reform News.