CLS: Hoisted on Its Own Stipulation of Facts

 

 [From Ct's  opinion p. 3:" Before considering  the merits of CLS's constitutional  arguments, we must resolve a preliminary issue: CLS urges us to review the Nondiscrimination Policy as written--prohibiting discrimination  on several enumerated bases, including religion and sexual orientation--and  not as a requirement that all RSOs accept all comers. The written terms of the Nondiscrimination Policy, CLS contends, "targe[t] solely those groups whose beliefs are based on religion or that disapprove of a particular kind of sexual behavior," and leave other associations  free to limit membership and leadership to individuals  committed to the group's ideology. For example, "[a] political ... group can insist that its leaders support its purposes and beliefs," CLS alleges, but "a religious group cannot."

CLS's assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary-judgment stage. In that filing, the parties specified:

"Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her} status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.... '

 In light of the joint stipulation, both the District Court and the Ninth Circuit trained their attention on the constitutionality of the all-comers requirement, as described in the parties' accord. We reject CLS's unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as written. This opinion, therefore, considers only whether conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution."]

 

Justice Alito demonstrates why this stipulation probably denied CLS a victory:

   "The Hastings Nondiscrimination Policy, as interpreted by the law school, ...discriminated on the basis of viewpoint regarding sexual morality. CLS has a particular viewpoint on this subject, namely, that sexual conduct outside marriage between a man and a woman is wrongful. Hastings would not allow CLS to express this viewpoint by limiting membership to persons willing to express a sincere agreement with CLS's views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group's beliefs. A Free Love Club could require members to affirm that they reject the traditional view of sexual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination....."

 Justice Alito is correct that in reality Hastings discriminated against CLS on the basis of viewpoint. However, for reasons that I jhave never been able to understand, CLS's lawyers stipulated that Hastings was enforcing a viewpoint neutral "all-comers" policy.