Emotions over VU nondiscrimination policy grew out of U.S. Supreme Court ruling

Monday, February 13, 2012 at 10:05pm

Vanderbilt’s town hall meeting to discuss and clarify the school’s stance on nondiscrimination drew a large crowd. Students sang, rubbed elbows and nudged their way into Furman Hall.

Only around 200 students made it into the meeting — others scattered to dorm rooms and gathering areas across campus to watch a live stream of the event. Members of Christian groups prayed together and sang worship music outside the meeting.

Inside, the atmosphere was less jovial. The room was tense as the administration representatives — vice chancellor for university affairs and athletics David Williams and provost Richard McCarty — traded arguments with mostly frustrated students for more than three hours. The debate was the culmination of a discussion that arose last year after a Christian fraternity on campus allegedly asked a gay member to resign.

But beyond the emotional discussion was a distinct, vital move by Vanderbilt’s administration. It was the first time Vanderbilt publicly referred to their nondiscrimination stance as an “all comers” policy. School officials maintain that the concept is simple: All student groups must be open to all students. Period. Furthermore, the school doesn’t support multi-tiered membership, meaning that if a student wants to be a member, they also deserve to be able to run for a leadership position.

And while Williams and McCarty addressed the legality of the policy after the Supreme Court’s 2010 decision in Christian Legal Society vs. Martinez, there wasn’t much emphasis on the details of the case. In fact, while the nation’s highest court did rule in favor of “all comers,” the decision was passed by a tight 5-4 vote.

CLS vs. Martinez stems from a case at the University of California’s Hastings School of Law. The school rejected an application by CLS to become a school-recognized organization, based on their mandatory statement of faith that prohibits sex outside of marriage and “unrepentant homosexual conduct.” CLS’s bylaws disallowed members who don’t sign the statement.

The group sued, and the court battle proceeded for nearly six years until the summer of 2010 when the Supreme Court narrowly ruled in favor of the law school. Ada Meloy, general counsel for the American Council on Education, said that even if the Supreme Court had ruled in the other direction, that doesn’t necessarily make Vanderbilt’s policy unconstitutional or illegal.

“A private school has some more flexibility in this area than a public school,” Meloy said. “We like to, in higher education, think that each institution has as much flexibility as it can to decide what’s best for that institution, as opposed to having it dictated from elsewhere.” (ACE filed a brief in support of the school during the trial.)

A closer look at the CLS vs. Martinez decision shows as much emotion and contention as there was in Furman Hall:




Justice Ruth Bader Ginsburg wrote the opinion, joined by Justice Sonia Sotomayor and Justice Stephen Breyer. Justice John Paul Stevens and Justice Anthony Kennedy wrote concurring opinions.

The opinion of the court sided with Hastings, ruling that an all-comers policy was “reasonable” for the law school to enforce.

“Just as ‘Hastings does not allow its professors to host classes open only to those students with a certain status or belief,’ so the Law School may decide, reasonably in our view, ‘that the . . . educational experience is best promoted when all participants in the forum must provide equal access to all students,’ ” the opinion reads.

Further, Ginsburg wrote that an all-comers policy makes it easier for the school to police their nondiscrimination policy. For instance, if a female student in a hypothetical male-superiority club was barred from running for president, how could the law school know whether she was rejected because of her sex or because a lack of belief in its fundamental philosophy? An all-comers policy deletes that gray area, the court argues.

According to the opinion, CLS called the all-comers policy “frankly absurd” and argued that some individuals could engage in hostile takeovers of groups. But the five justices didn’t buy that argument, saying the school could re-evaluate its policy if those situations were taking place.

“Students tend to self-sort and presumably will not endeavor en masse to join — let alone seek leadership positions in — groups pursuing missions wholly at odds with their personal beliefs,” Ginsburg wrote.

Overall, the court ruled that CLS should continue to have the right to assemble and organize as they see fit, but it was up to the university’s discretion to formulate a “reasonable” policy for their student organizations.

Ginsburg’s opinion ends with a harsh comparison by association to more discriminatory groups.

“Other groups may exclude or mistreat Jews, blacks, and women — or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups,” Ginsburg wrote. “It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”




Written by Justice Samuel Alito, joined by Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas.

Several concerns brought up by the dissenting justices were similar to those at Vanderbilt’s town hall meeting. Particularly, the dissenters argue that the court is too concerned with political correctness.

“The proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’ ... Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning,” Justice Alito writes.

“Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups — groups to which, as Hastings candidly puts it, these institutions ‘do not wish to ... lend their name[s].’ ”

Another similarity between the dissenters and the Vanderbilt policy opponents lies in the alleged double standard of enforcing a nondiscrimination policy on student organizations that the university doesn’t abide by.

“The Nondiscrimination Policy applies to everything that Hastings does, and the law school does not follow an accept-all-comers policy in activities such as admitting students and hiring faculty,” Alito wrote.

The dissenters also draw a line between a religious association and a viewpoint-based group, arguing that religious groups are unfairly targeted.

“Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming,” the dissenting opinion read.

(Williams made a similar distinction during the town hall meeting, saying that viewpoint-based groups would have to allow opposition-minded members into the group, effectively dodging one of the arguments made against Hastings.)

Alito also criticized Hastings for never putting the all-comers policy in written form, a criticism leveled against Vanderbilt administration at the town hall meeting, as well. Williams said they are working on a written version.