PEACEFUL COEXISTENCE

Panelists’ Written Statements
267
It also secures equal rights and opportunities for its students. As the Court recognized, polices
like the one challenged in CLS “ensure [] that no Hastings student is forced to fund a group that
would reject her as a member.” 378
While the Hastings policy requires recognized groups to admit “all comers,” some other colleges
and universities have more traditional nondiscrimination policies that prohibit recognized groups
from denying membership based on a list of protected characteristics such as race, sex, religion,
sexual orientation, gender identity, disability, or veteran status. Although the CLS case
expressly addressed only the Hastings all-comers policy, the decision suggests that the traditional
nondiscrimination policies should readily pass constitutional scrutiny, as well. As Justice
Stevens noted in his concurrence, such a policy, like the all-comers policy, is “plainly legitimate”:
It is “content and viewpoint neutral,” restricting official recognition on the basis of student
groups’ conduct, not “on the basis of their convictions.” 379
In fact, in Alpha Delta Chi-Delta Chapter v. Reed, 380 the only post-CLS decision to address the
issue, the U.S. Court of Appeals for the Ninth Circuit upheld San Diego State University’s
traditional nondiscrimination policy. 381 A Christian fraternity and sorority challenged that
policy, which conditions funding and various other benefits on student groups’ agreement not to
discriminate on the basis of race, religion, national origin, ethnicity, color, age, gender, marital
status, citizenship, sexual orientation, or disability. Closely following the Supreme Court’s
reasoning in CLS and finding no material difference between an all-comers policy and a more
traditional one, the court of appeals in Alpha Delta Chi rejected the plaintiffs’ First Amendment
claims. That the challenged policy incidentally burdens some groups more than others, the
court held, is of no moment: “San Diego State’s nondiscrimination policy does not ‘target
speech or discriminate on the basis of its content,’ but instead serves to remove access barriers
imposed against groups that have historically been excluded.” 382 And, as in CLS, San Diego
State’s policy did not require student organizations to accept unwanted members and leaders, but
merely conditioned school benefits on the agreement not to discriminate. Echoing the Supreme
Court, the court of appeals concluded, “Plaintiffs are free to express any message they wish, and
may include or exclude members on whatever basis they like; they simply cannot oblige the
university to subsidize them as they do so.” 383
378
CLS, 130 S.Ct. at 2989.
379
Id. at 2996 (Stevens, J., concurring).
380
648 F.3d 790 (9th Cir. 2011).
381
Although the court of appeals rejected a facial challenge to the policy, it remanded the case to the district court to
determine whether, in practice, the university had selectively enforced the policy against the plaintiffs. Id. at 803-04.
382
Id. at 801.
383
Id. at 803.