PEACEFUL COEXISTENCE

266 Peaceful Coexistence Report
regular meetings and other events on campus, and excluding whomever it wished. But CLS was
asking for more, and the Court found no basis for mandating a special exemption from the
Hastings policy. “The First Amendment shields CLS against state prohibition of the
organization’s expressive activity, however exclusionary that activity may be,” the Court
concluded, “[b]ut CLS enjoys no constitutional right to state subvention of its selectivity.” 372
Because the Hastings policy conditioned the denial of benefits on certain conduct (the act of
discriminating against certain members of the law school community) and not merely on
expression (the views of the student groups) the Court held the policy was viewpoint-neutral. 373
This was true, the Supreme Court reasoned, even if the policy ultimately affected some groups
more than others. As the Court explained, “[e]ven if a regulation has a differential impact on
groups wishing to enforce exclusionary membership policies, ‘[w]here the [State] does not target
conduct on the basis of its expressive content, acts are not shielded from regulation merely
because they express a discriminatory idea or philosophy.’” 374
The Court also found the nondiscrimination rule to be a reasonable one, declining CLS’s
invitation to second-guess the university’s policy decisions. Among other things, the policy
promotes the basic principle of equality and fairness, in the crucial context of a public
university. 375 Because of the central role that access to education plays in personal and
professional development, eliminating discrimination in education has long been recognized as a
government interest of the utmost importance. 376 As the Supreme Court had noted in an earlier
case, “ensuring that public institutions are open and available to all segments of American society
. . . represents a paramount government objective,” and “nowhere is the importance of such
openness more acute than in the context of higher education.” 377
Again, it is important to remember that the Hastings policy furthered these goals not by silencing
exclusionary groups like CLS, not by driving them off campus, but rather by choosing not to
subsidize them. When a public university decides that the advantages associated with official
recognition should be granted only to those organizations that do not discriminate, it furthers a
compelling interest in preventing government resources from being used to perpetuate inequality.
372
Id. at 2978.
373
Id. at 2994.
374
Id. (quoting R.A.V. v. St. Paul, 505 U.S. 377, 390 (1992)).
375
Id. at 2989 (“[T]he open-access policy ‘ensures that the leadership, educational, and social opportunities afforded
by [recognized student organizations] are available to all students.”’) (quoting Brief for Hastings at 32, and citing Brief
for American Civil Liberties Union at 11).
376
See, e.g., Norwood v. Harrison, 413 U.S. 455, 469 (1973) (holding that Mississippi could not give textbooks to
students attending racially segregated private schools because “discriminatory treatment exerts a pervasive influence
on the entire educational process”); see also, e.g., Bob Jones Univ. v. U.S., 461 U.S. 574, 604 (1983) (“[T]he
Government has a fundamental, overriding interest in eradicating racial discrimination in education.”).
377
Grutter v. Bollinger, 539 U.S. 306, 331-32 (2003) (internal citations and quotation marks omitted).