Hastings haste: Supreme Court does a First Amendment drive-by

Monday’s Supreme Court ruling that colleges need not subsidize student groups that refuse to admit members with disfavored religious beliefs taps into deeply felt emotions, and reactions understandably will be based on the outcome and not the journey. People for whom nondiscrimination is important will generally be pleased, and will be disinclined to question the route the Court’s 5-4 majority took to reach a “good” result.

Still, questions abound. There are First Amendment issues lurking in the case of Christian Legal Society v. Martinez to which the Court gave inadequate consideration, and these issues have lingering implications for the well-being of student media outlets that depend on college funding.

The SPLC’s Adam Goldstein comments on the Huffington Post — in greater detail and with greater indignation — about the questionable legal reasoning in the majority opinion by Justice Ruth Bader Ginsburg. He cautions that “the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years.”

The Court’s ruling, involving a Christian student group at the University of California-Hastings College of Law, was primarily not about the First Amendment freedom of expression, but the freedom of association — specifically, the right of observant Christian students to be free from state pressure to admit unwanted members to their club. Because the case was largely one about association and not speech, the majority gave only drive-by consideration to the lurking freedom-of-speech issue.

Here is the issue. The state’s refusal to recognize the Christian Legal Society as a registered student organization meant that CLS members were denied access to vehicles of communication — maintaining tables at recruitment fairs, sending bulk e-mails to all registered law students, posting messages on school bulletin boards — available to other groups with different membership practices. If the case is seen primarily as one about regulating the means of state-funded communications rather than one about freedom to maintain a discriminatory club, then the constitutional issues become trickier.

The Court has repeatedly, in other contexts, rejected attempts to link public university funding to the speaker’s ideology (and the Court claimed not to be doing so here, either, although dissenting Justice Samuel Alito maintains otherwise).

Since the Court’s 1995 ruling in Rosenberger v. University of Virginia, it has been settled that a public university may not refuse to fund a journalistic student publication based on its endorsement of religion. If a college makes student activity fee support available to some student publications, then all publications must be allowed to compete for it on equal footing, regardless of their editorial viewpoint.

Five years later, in Board of Regents v. Southworth, the Court decided that a university could allocate a portion of mandatory student-activity fees to groups espousing controversial political views obnoxious to the views of some student “taxpayers,” so long as the fees were doled out without respect to the speakers’ viewpoints.

The majority in Christian Legal Society claimed to be faithfully applying the Southworth and Rosenberger precedents. But did they?

The question left after Monday’s decision is: Could a college refuse funding to a conservative or liberal student newspaper on the grounds of a “viewpoint neutral” rule that required all publications to present a representative cross-section of diverse student opinions? That the answer to that question is no longer unmistakably “no” illustrates why Christian Legal Society‘s reasoning is cause for concern.

From the standpoint of the student media, two aspects of Christian Legal Society are especially troubling.

The first is the perpetuation of the Court’s patronizing attitude toward anyone with the infirmity of attending school. Justice Ginsburg wrote of the need for extreme deference to the wisdom of UC-Hastings administrators “in light of the special characteristics of the school environment,” a phrase taken from a case about 15-year-olds. To be clear, the typical student attending the UC-Hastings College of Law is about 24 years old. Some have spouses, children, mortgages, records of military service — they are well past the age of compulsory school attendance, and are scarcely impressionable children in need of coercive “inculcation.”

It is demonstrably unwise and unjustified to give extra-strength deference to school administrators at the K-12 level beyond the deference that would be owed to any other government official. At the law-school level, it is not just unwise — it is nonsensical.

The second concern is the Court’s focus on the alternative, non-university means of communication that the CLS was able to use when prevented from accessing the bulletin boards and e-mail system at UC-Hastings: “[T]he advent of electronic media and social-networking sites reduces the importance of those channels,” Justice Ginsburg wrote. Absolutely not. This is too insidious a virus to allow to lazily infect the law of the First Amendment. Bob Woodward can distribute his next Defense Department investigation on Facebook, but that’s hardly a valid consideration if the Pentagon tries to stop the Washington Post from publishing it.

Neither the majority nor the dissenters, of course, have a monopoly on outcome-motivated judging. And for proof, you need look no further than Justice Clarence Thomas’ signature joining Justice Alito’s hand-wringing dissent about how the majority has set back the First Amendment rights of students.

This is the same Justice Thomas who has consistently maintained that students have no discernable constitutional rights at all, not even protection against being strip-searched for contraband aspirin. Justice Thomas’ conversion to First Amendment zealotry when he shares the viewpoint being burdened is yet another reminder that freedom of speech defies ideology, and that those who support the censorship of “offensive” messages must be mindful that one day it will be their opponents who get to define “offensiveness”