The Supreme Court recently heard oral arguments in a case that illustrates the problem with some public agencies' definition of diversity. The dispute serves as a powerful reminder of the danger of government attempts to disrupt the diversity provided by freedom of association and replace it with a demand for uniformity focused on a narrow view of individual rights.
The case is called Christian Legal Society versus Martinez, and it is one of the most closely watched of the current Supreme Court term. Here is a brief history.
The Christian Legal Society is a national organization of attorneys and law students that encourages its members to operate from an orthodox Christian perspective. For years a fellowship of Christian law students existed at the Hastings College of the Law, one officially recognized as one of the school's 60 or more associations. That meant it qualified to be treated in the same way as other law student groups in terms of access to mandatory student organization fees and school facilities.
In 2004 the fellowship affiliated with the national CLS, a step that involved the fellowship's agreeing to have its voting members and officers sign a statement of faith. For CLS, this is a reasonable step - the statement sets forth the group's beliefs and mission, and signing it ensures that voting members share the same core principles, much the way any mission-oriented club, from Greenpeace to Amnesty International, would do.
When Hastings officials got word of the newly required statement, they promptly denied the student CLS chapter its university recognition. The chapter was the only campus student group to suffer such a rejection. The grounds for denial, Hastings said, was that CLS violated the university's rules barring student clubs from discriminating on the basis of "religion" or "sexual orientation."
CLS then sued Hastings, charging a denial of its constitutional right to equal access to the public forum (Hastings College of the Law is part of the University of California system) provided by the school.
First, CLS pointed out, the university had never penalized any other group for pursuing a mission that would, by inference, exclude active membership or leadership by students with contrary ideas.
Second, the CLS chapter made it clear that it did not, in fact, discriminate on the basis of sexual orientation, but rather that its statement of faith naturally included both matters of creed and personal conduct that applied to heterosexual and homosexually oriented students alike. The group required its members and officers to both believe and act according to a Christian standard. This would mean that sexual activity inconsistent with orthodox Christian belief would disqualify a person for membership or leadership if the individual were "unrepentant" regarding that activity.
Pressed as to how its objections to this defining standard could be anything but anti-religious discrimination, Hastings responded that its actual standard for student groups was "all comers." That is, Hastings made the rather startling assertion that no student group would be permitted if it did not make its membership and leadership positions available to all law students regardless of their beliefs and behavior. The goal, Hastings asserted, was to foster diversity and inclusivity.
When all of this came before the Supreme Court, the justices were forced to wrestle with a difficult record, which included the question of whether Hastings' "all comers" rule was the actual policy Hastings was pursuing. Justice Breyer wondered aloud if the court had to rule on the constitutionality of an "all comers" policy for student groups. Attorneys for CLS argued that the ruling could be narrower and focus just on how Hastings applied the policy to CLS.
Constitutional or not, the Hastings policy is a hash of ideas. It represents an attempt to achieve diversity in student groups by prescribing that they may not require their members to endorse and exemplify their missions. In so doing, the policy honors only those individuals who wish to be able to join organizations indifferent to the core beliefs of their members. The plain fact is, there are few such groups, whether their raison d'etre is the environment, the right to life, political action, feminism or faith.
Clearly, if restaurants were the issue and not student groups, Hastings would not proceed in the name of "diversity" by requiring all vendors at the school to offer the same food to all students. Instead, it would give restaurants of varying cuisine access to the student body and leave students with the widest possible choice of menus.
Moreover, Hastings has other ways to honor genuine diversity among student groups. For example, it could mandate a minimum number of open meetings for all student groups or even require all idea-based groups to host one or two debates a year so that they participate in developing and defending civil conversation. Such activity would make even more sense at a law school that exists to promote reasoned dialogue and adversarial argument.
In short, the good administrators at Hastings could pursue and promote real diversity and inclusion by letting a thousand student organizations flower and bloom. Its current "diversity" policy is instead a policy of homogenization and pasteurization (and possibly a view that orthodox Christianity is a germ). By carrying that policy to an extreme, Hastings is not vindicating the rights of individual students but shackling them through enforced uniformity.
Charles A. Donovan is senior research fellow in domestic policy studies at The Heritage Foundation.