Bake Sale Argument in the Supreme Court

On Monday the Supreme Court heard arguments in Christian Legal Society v. Martinez, a case that pitted the right to free association against the principle of non-discrimination.
Hastings College of Law in San Francisco, part of the University of California system, has a policy stating that recognized student organizations “shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” Based on that policy, it refused to grant official recognition (and hence access to college facilities, student funds, student email lists, etc) to the Christian Legal Society because that organization limited voting membership and the right to be an officer to those who share its Christian views.
According to critics, such as Justice Scalia, Hastings’ policy is both “weird” and “crazy.”

It is so weird to require the campus Republican Club to admit Democrats — not just to membership, but to officership,” Scalia said. “To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.

Similarly, Justice Alito raised a hypothetical about an organization of Muslim students:

If the group is required to accept anybody who applies for membership,” Justice Alito asked, “and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?

Should Muslim groups be forced to accept heathen members and officers?
On the other side, according to the report in the Washington Post, “justices on the left saw no reason to force the college to give its imprimatur to groups that discriminate.” [Do colleges give their “imprimatur” to all student groups they recognize?]
“Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?” Justice Sonia Sotomayor asked [former appeals court judge and current Stanford law professor Michael] McConnell [CLS’s lawyer].
According to Peter Schmidt’s report in the Chronicle of Higher Education, Justice Sotomayor also asked McConnell “how the Christian Legal Society can even characterize itself as ‘banned’ from the law school, when the law school lets such nonregistered student organizations use its facilities.” This is rather like asking what Rosa Parks’s problem was, since she wasn’t refused permission to ride the bus.
In any event, the core of the argument made by Hastings and its liberal defenders is that public institutions cannot be allowed to give official recognition to organizations that discriminate, even though such a position would prohibit, say, Hillel from requiring its voting members and officers to be Jewish. Indeed, the Chronicle of Higher Education reports,

[i]n response to a question from Justice Samuel A. Alito Jr., [Hastings attorney Gregory] Garre offered assurances that the law school would deny recognition to an Orthodox Jewish organization that gave women a different status from men’s.

There are two deep ironies in the argument of Hastings and the “justices on the left.” First, these are the same folks usually clamoring for more “diversity,” but as Harvey Silverglate recently argued in the Wall Street Journal, “[i]f the Supreme Court decides that public colleges may deny religious groups the same rights as any other group on campus, the result will be less, not more, genuine diversity on campus.”
Hastings’s response to this obvious inconsistency was so feeble as to be humorous: that the school’s policy promotes diversity of opinion within organizations. Well, yes. A gay student group would be more “diverse” if forced to accept anti-gay members and officers (but would it still be a gay student group?). As CLS attorney McConnell argued forcefully, “[i]f student organizations are not allowed to have a coherent set of beliefs, there can be no diversity.” As I argued here, “it is at best ironic that those who insist so loudly on the necessity of skin-color ‘diversity’ let loose with a heavy fusillade of legal fire when the prospect of religious diversity, of diversity over values and beliefs, raises its head.”
Second, there is the irony — perhaps hypocrisy is a better term — of liberal institutions and their defenders refusing to practice what they preach. Imagine a student group based on academic performance — a science club, for example, whose members are selected on the basis of their math SAT scores and grades in college and who are given such privileges as after-hours access to libraries and labs. Now imagine, if you can (I know this is hard, so alien is my hypothetical to academic life as we know it), that in order to qualify for membership our science club requires higher SAT scores and grades for white and Asian students than it does for blacks and Hispanics.
Such a membership requirement would clearly violate any anti-discrimination policy, such as the one at Hastings, that prohibits discrimination “on the basis of race, color, religion, national origin, ancestry …,” etc., but how many campuses with both policies and attitudes that mirror Hastings do you think would refuse to grant recognition to such a group?
My example will remind you, I hope, of the anti-affirmative action “bake sales” that have so angered university administrations in recent years — satirical protests put on by conservative students where, for example, whites and Asians are charged a dime for a cookie but blacks and Hispanics are charged only a nickel as a way of pointing out the discrimination inherent in racial preferences.
University administrations routinely tried to close down these protests as divisive, hurtful, insensitive, even racist, efforts that were strenuously fought by the Foundation for Individual Rights in Education and others who pointed out that the humorous “bake sales” merely mimicked the actual practices of the admissions offices.
By now, in short, we should be used to half-baked arguments from the wonderful world of higher education hypocrisy.
John Rosenberg is a lapsed historian who blogs at Discriminations.

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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