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A Christian Legal Society (CLS) chapter must allow law students who disagree with the group's statement of faith to take leadership positions, the U.S. Court of Appeals for the Ninth Circuit ruled yesterday.

The University of California's Hastings College of Law refused to grant the chapter status as a "student-recognized organization" in 2004 because the CLS's mandatory statement of faith and ban on "unrepentant homosexual conduct" conflict with the school's nondiscrimination policy.

In Tuesday's decision, the Ninth Circuit said that all campus groups must abide by the same rules, so CLS was not being singled out for discrimination. The full text of the decision reads, "The parties stipulate that Hastings imposes an open membership rule on all student groups — all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable."

But Timothy J. Tracey, CLS litigation counsel, says the court should have looked not just at what the school's open membership rule says, but also at how the school applies it. Tracey argued CLS's case at the Ninth Circuit last week.

You told the court, "Hastings allows other registered student organizations to require that their leaders and/or members agree with the organization's beliefs and purposes." But yet you also said that Hastings requires all groups to abide by this open membership rule. What's the difference?

We agreed this is what they say their policy is. What we didn't stipulate to was how the policy is being applied. It's clear that even if that's their policy — everyone has to let everyone in as members and leaders — they're granting exceptions. In the Hastings Democratic Caucus, you have to support the mission of the Democratic Party. In Silenced Right, a pro-life group on campus, they say, "We want you to agree with our pro-life beliefs and principles."

So in that sense, I don't think the court's decision is fair. It's saying [that] because the policy appears to be viewpoint neutral on its face, it's viewpoint neutral.

That said, it might seem from the court's short decision that if we hadn't stipulated to that, we might have won. I don't that this is true: I think they would have said the [Ninth Circuit's 2007 decision Truth v. Kent School District still lets the college win].

Can you tell me a bit about the Truth decision and why the Hastings case is different?

The Truth case dealt with a Christian club at a high school in Washington. The issue had to do with a statement of faith required of the club's general membership. [The Ninth Circuit ruled that the school district did not violate the First Amendment or the Equal Access Act by rejecting the club.]

In the Truth case, members were really equivalent to attendees. They were people who would show up in meetings and participate in activities, but couldn't vote on anything, lead Bible studies, lead groups in prayer, or amend the group's constitution.

In other words, they can call themselves a member but they can't actually affect the group's character. Actually, there's some argument on that. Even members who can't vote or lead can still affect the character of the group, especially in how it's perceived by those outside the group. But the court, at least, believed that they couldn't affect the group's character.

CLS actually has open attendance. We let anyone attend our meetings. We don't think that affects our expression. But having to allow anyone to be officers, to amend the constitution, or to lead Bible studies has a direct impact on the expression of the group and whether it can control its identity.

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March (Web-only) 2009, Vol. 53