RE: Factual Clarification re CLS
Mark's helpful post provides a thoughtful response to my earlier question -- but in doing so, it raises another question about the potential scope of the Court holding in the CLS case. In my view, the forum that Hastings created was essentially a designated public forum, not a designated limited public forum. As such, it had to be open to everyone on pretty much the same terms as a traditional public forum. On that understanding, I think one can argue that a student group's right of associational freedom extends not only to the power to determine who may serve as group leaders or be counted as voting members. It would also extend to determining who may participate in group events and discussions as well. Mark's response suggests that the forum Hastings created was more of a designated limited public forum than a designated public forum. It has parameters designed to serve a particular purpose -- to promote a diversity of viewpoint among groups for the benefit of the entire student body. Assuming that this is a legitimate parameter to impose on a limited public forum, Hastings may deny access to the forum to groups that do not fit within the forum's parameters. A group that excluded students from participating in events and discussions would fail to satisfy the forum's requirements and could be denied access to it. What troubles me about this argument is that it depends so much on the nature and parameters of the forum that Hastings or some other university or law school chooses to create. That leads me to this question: If the parameters of the forum a university creates may permit the university to restrict a student group's associational freedom with regard to controlling access to its events and discussions, might one argue that different parameters -- say parameters designed to create internal dialogue and discussion within student groups -- would permit the university to restrict a student group's associational freedom with regard to choosing its own leaders and voting members. I understand the argument one might make that Hastings did not in fact create such a forum so the possibility that it, or another university, could do so would not preclude a decision favoring CLS in this litigation. But this analysis would make a CLS victory of relatively limited value. A different university, creating a more limited forum for a different purpose, would not be bound by the decision. For the CLS case to apply more broadly, the Court would have to conclude that a university cannot constitutionally create a designated limited public forum that denies access to groups that impose restrictions on who may serve as leaders or be counted as voting members. That holding raises the question of why a university should be prohibited from creating this kind of limited public forum because of the burden it imposes on associational freedom, but may create a limited public forum requiring all groups seeking access to it to open their events and discussions to everyone -- notwithstanding the burden such requirements impose on associational freedom. Mark quite fairly notes that he has not yet considered this question. He also notes that the Court does not need to reach it to decide the CLS case. I think that is correct. But I also think that the more the Court's decision in the CLS case is based on the specific purpose for, and parameters of, the forum Hastings created, the more limited will be the scope and applicability of its holding and analysis. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Monday, May 10, 2010 3:21 PM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS Alan’s question is (as always) a fair one. I’d say that the government’s (Hastings Law School’s) interest in having the message promoted by the groups in its forum available to all students is quite consistent with allowing those groups to have their own points of view, free from being taken over by a hostile majority. The claim that a group should be allowed to close its meetings to non-adherents is thus at least “one step beyond”* the claim that it should be able to have standards for those who set its agenda and speak its message. In other words, because the explicit purpose of the forum is to promote a diversity of viewpoint among groups for the benefit of the entire student body, requiring groups to allow any student to hear the messages put forward by the group helps to advance the purpose of the forum. I suppose this would be similar to saying that the student group in Rosenberger would have to allow any student to have a copy of its magazine, but would not have to allow any student to become an editor of the magazine. To the extent that participation in discussion by students who are non-adherents is consistent with the putting forward
RE: Factual Clarification re CLS
Alan writes: Mark's response suggests that the forum Hastings created was more of a designated limited public forum than a designated public forum. It has parameters designed to serve a particular purpose -- to promote a diversity of viewpoint among groups for the benefit of the entire student body. Assuming that this is a legitimate parameter to impose on a limited public forum, Hastings may deny access to the forum to groups that do not fit within the forum's parameters. A group that excluded students from participating in events and discussions would fail to satisfy the forum's requirements and could be denied access to it. Hastings created the all comers policy on the fly, perhaps as part of its litigation strategy, but I think Alan sums up their effort in the best light possible. Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes. Is this another accurate way of summing up what Hastings is trying to do? Why is this condition on expressive association not an unconstitutional condition? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Rick Duncan writes: Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes Why is this condition on expressive association not an unconstitutional condition? I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you want to associate in a way that isn't democratic, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, etc., but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
Eugene is correct and this is extremely helpful. But I think part of what is happening here is an agenda to incrementally reach a doctrine that requires public support for private schools. No? It is the fairness reasoning that has undergirded the push for federal public money for religious mission on the theory that it is unfair to exclude them. Marci Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Tue, 11 May 2010 06:53:55 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: RE: Factual Clarification re CLS Rick Duncan writes: Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes Why is this condition on expressive association not an unconstitutional condition? I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you want to associate in a way that isn't democratic, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, etc., but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
How fragile is the public forum protections of cases like Widmar, Lamb's Chapel, and Good News? Let me re-phrase one of Eugene's hypos: A [public library with unused meeting rooms] is attempting to create a designated public forum for all [community groups] that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, [or any other reason], but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? If Eugene's implication is correct, all the govt has to do to exclude church's, religious ministries, and even secular expressive groups like Planned Parenthood and the NAACP from public fora is to adopt an all comers rule as part of its designated forum policy and then exclude all groups that insist on keeping their right of expressive association (their right to exclude members and leaders who do not share the groups' expressive purposes). Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar would have reversed the results in those cases, and led to the Court's permitting govt to deny the plaintiffs in those cases access to the public fora. No? This case is not about equal funding for religious K-12 schools, as Marci suggests. It is about whether a landmark body of law, protecting the right of free speech in public fora, will be eviscerated by a newly-created codicil allowing govt to restrict access to public fora by adopting all comers policies that strike at the heart of freedom of expressive association. In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
In a society committed to non-discrimination and equality, the government should not be required to subsidize hate groups and groups that exclude other on prohibited bases. There are plenty of private places to meet. And if the society wants to change the policy, it can do so -- unless it is constitutionalized. Do you really want this degree of constitutionalization of policy decisions? Or do you want greater flexibility and political processes available to rectify results you find improper? Accommodation would be ok -- making an exception would be constitutional, no? Steve On May 11, 2010, at 10:41 AM, Rick Duncan wrote: In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Life is a banquet, and most poor suckers are starving to death! Auntie Mame by Patrick Dennis ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Eugene's examples are all pretty powerful. They also demonstrate the arguably very weak utility of limited public forum doctrine for protecting freedom of association. Cases like Widmar and Good News Club are distinguishable because the Court has made it clear that limited public forum parameters cannot be viewpoint discriminatory. There is no Supreme Court case law (at least to my recollection) that prohibits the creation of a limited public forum that restricts access in a way that limits associational freedom. I think that an all purpose, completely open, designated public forum should be treated just like a traditional public forum. I would argue that this rule would prohibit conditioning access on a group's waiving its associational freedom rights. But once we are in the world of limited public forums, the issue becomes much more complicated. We have a constitutional framework for reviewing viewpoint discriminatory, content discriminatory, and content neutral restrictions on access to a limited public forum. But what is the framework for reviewing a limited public forum that is defined in a way that burdens associational freedom? Is the freedom to determine the voting members of an organization more important than the freedom to express one's views on a particular subject. Content discriminatory regulations restrcting speech in a limited public forum are upheld under very deferential review. It may very well be that a limited public forum that controls access through restrictions on associational freedom is of far less value to expressive groups than a more open forum. But state institutions are permitted to create limited public forums that are only of marginal use to speakers, just as they are permitted not to create a limited public forum in the first place. What state institutions cannot do is to eggregiously distort public debate -- hence the prohibition against viewpoint discrimination. The best argument for CLS is that restrictions on the right of groups to determine their voting members distort debate as opposed to weakening debate. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, May 11, 2010 6:53 AM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS Rick Duncan writes: Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes Why is this condition on expressive association not an unconstitutional condition? I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you
RE: Factual Clarification re CLS
I appreciate Alan's very helpful post particularly his concern about speech distortion. I have a question for him and others. Should severe restrictions on freedom of expressive association best be viewed as a kind of viewpoint restriction? If groups speak through their leaders, and if leaders are elected by voting members, the ability of an expressive group to craft and articulate its viewpoint in a designated public forum is indeed made vulnerable to distortion or even total destruction when the state adopts a designated public forum requiring a waiver of associational freedom as a condition to access. I think this is what was bothering Justice Breyer. A marketplace of ideas requires a diversity of views, and a diversity of views is not served by groups that are denied the right to define an expressive identity. I think Breyer was saying such a fantastical forum is more like a group hug than a marketplace of ideas. Like Doug Laycock, I have exams that need to be graded. I can't wait to read the opinions that come down in this case. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
It seems to me that a public library should be perfectly entitled to say, in the words of Title VI, that public funds, to which all taxpayers of all races [and sexes and religions and sexual orientations and ideologies] contribute, not be spent in any fashion which ... subsidizes ... racial [or sexual or religious or sexual orientation or ideologies] discrimination. I think this sort of antidiscrimination extremism is bad policy; but I don't see why it would be unconstitutional. The NAACP, Planned Parenthood, churches, and other groups would just have to meet on private property. The same, incidentally, is true as to the charitable tax exemption, which doesn't apply to contributions to groups that engage in electioneering or a substantial amount of lobbying. This excludes many worthy and eminently constitutionally protected groups from the benefit plan. It may be an unwise idea. Perhaps the government's subsidies to nonprofits' speech should also extend to nonprofits that electioneer or substantially lobby, because such speech is as valuable to society as other speech. But it's a constitutionally permissible choice for the state to make. Groups that want to elect candidates or promote ballot measures or lobby for legislation, however wonderful those groups might be, just have to do that with their own money. Nor would I worry too much that clever drafting would exclude groups that ended up being included under Rosenberger et al. A university is always free not to fund student groups at all, which means that it wouldn't fund Wide Awake, or to fund only those groups that express views that it chooses, or to fund only groups that talk about sports and not about other matters, or whatever else. Rosenberger et al. of course don't stand for the proposition that any groups should be funded - only that they can't be denied funding because of the religiosity of their viewpoints. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 7:41 AM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS How fragile is the public forum protections of cases like Widmar, Lamb's Chapel, and Good News? Let me re-phrase one of Eugene's hypos: A [public library with unused meeting rooms] is attempting to create a designated public forum for all [community groups] that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, [or any other reason], but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? If Eugene's implication is correct, all the govt has to do to exclude church's, religious ministries, and even secular expressive groups like Planned Parenthood and the NAACP from public fora is to adopt an all comers rule as part of its designated forum policy and then exclude all groups that insist on keeping their right of expressive association (their right to exclude members and leaders who do not share the groups' expressive purposes). Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar would have reversed the results in those cases, and led to the Court's permitting govt to deny the plaintiffs in those cases access to the public fora. No? This case is not about equal funding for religious K-12 schools, as Marci suggests. It is about whether a landmark body of law, protecting the right of free speech in public fora, will be eviscerated by a newly-created codicil allowing govt to restrict access to public fora by adopting all comers policies that strike at the heart of freedom of expressive association. In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
Lisa -- how do you distinguish between allowing CLS and hate groups to meet? Or does it not matter to you? As a policy matter I think groups should be able to discriminate on belief and still get access -- but then what about a belief that is based on race? Or sex? We are talking about the constitutional issue here, not wise policy. Steve On May 11, 2010, at 12:06 PM, Lisa A. Runquist wrote: On 5/11/2010 8:05 AM, Steven Jamar wrote: In a society committed to non-discrimination and equality, the government should not be required to subsidize hate groups and groups that exclude other on prohibited bases. Are you saying CLS is a hate group? Or that a religious organization is prohibited from having a statement of faith and requiring members to agree to that statement of faith? If the society is truly committed to non-discrimination and equality, then it will treat all groups equally. That means that Christians should have the same rights as others. In fact, the first amendment was designed to PROTECT religious organizations, not to be a cudgel that allows the government to PROHIBIT them. As to any subsidy, I have several thoughts: 1. If the position of the college was that it would allow student groups to meet but would not give any of them any funds, that would certainly be equal treatment, and might be the best solution. 2. If the position of the college was that all student groups that met on the college could not be closed, but had to be open to participation (not membership) by anyone interested, that is again equal treatment. 3. If the position of the college is that any student group could meet, but that it would fund only student groups that are not religious, is that equal treatment, or is that discrimination against religion? If I were a student, and my student funds were going to other groups that did things I did not believe in, but my group was denied funding, I would probably think I was being discriminated against. There are plenty of private places to meet. I remember 35 years ago when I was a law student, seeing a notice for a CLS meeting. I finally did get up enough courage to attend (long story). Would I have attended if it had been someplace other than the law school? I don't know. I was working 20-30 hours a week as well as going to school full time so it would have made it much harder. Would I have had any way of knowing about CLS if I had not seen the notice on the bulletin board? Probably not. Did becoming a member of CLS help me get thru school? Yes. I was not a part of any other group in law school; I did not belong even to any type of study group (I was pretty shy, had never known any lawyers before I went to law school, and did not know that people actually got together to study -- everything I did was pretty much on my own). Although I am not currently a member of CLS, I was one for a number of years, and it did provide support that I did not get from any other group on campus. I must say that it certainly was more helpful than the beer bashes that were regularly funded by the school. Lisa And if the society wants to change the policy, it can do so -- unless it is constitutionalized. Do you really want this degree of constitutionalization of policy decisions? Or do you want greater flexibility and political processes available to rectify results you find improper? Accommodation would be ok -- making an exception would be constitutional, no? Steve On May 11, 2010, at 10:41 AM, Rick Duncan wrote: In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com IRS Circular 230 Notice To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding U.S. tax penalties. This message and any attachments may be protected by the attorney/ client privilege. If you believe that it has been sent to you in error, do not read, copy or distribute it. Please reply to the sender that you have received the message in error and then delete it.
Re: Factual Clarification re CLS
I'm not sure my understanding of the CLS policy agrees 100% with Doug's. Whether or not you call it a disparate impact, I believe there is what groups like Lambda have been litigating as an insurmountable obstacle faced by same-sex couples that different-sex couples don't face. My understanding was that the CLS policy excluded people who were not in what CLS considered a biblical marriage; that is, I thought CLS didn't care if a same-sex couple was civilly married in the few months it was legal in California, for example, but instead maintained that a same-sex relationship *couldn't be* a marriage (in the biblical sense) and hence same-sex couples could not ever have marital sex (regardless of civil law). Thus, if I'm right, it's possible for straight people to be sexually active and members of CLS, but not for gay people. If, however, Doug or someone can point to evidence that CLS accepts sexual activity within a *civil* same-sex marriage, then it would be more complicated though not necessarily impossible to conclude that there is no sexual orientation discrimination. But if my understanding is right, I think there is sexual orientation discrimination (as I reject the notion that it wouldn't discriminate against gay and lesbian people to say, you're as free as straight people to marry and have sex with a person of a different sex, and straight people are as forbidden as gay and lesbian people to have sex with a person of the same sex). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On May 10, 2010, at 9:53 AM, Douglas Laycock wrote: CLS's membership policy does not turn on the distinction between sexual orientation and sexual conduct. CLS's rule prohibits any unrepentant sexual relationships outside marriage, whether same-sex or opposite-sex. There is no classification based on sexual orientation. There is no disparate impact; there no are no doubt many more Hastings students in sexually active opposite-sex relationships than in sexually active same-sex relationships. It is true that the opposite-sex couples could legally get married, and the same-sex couples could not, but that has little relevance to the unmarried opposite-sex couples, who are unmarried for a reason: they are finanically or emotionally unprepared for marriage, or not yet ready to settle down, or commit, or whatever. Most of the same-sex couples are probably int he same situation in addition to being legally unable to marry. Anyone who is having sex and for whatever reason isn't married is excluded by the CLS rule. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Douglas Laycock is certainly correct that CLS' statement of belief also calls for heterosexual students to refrain from sex outside of marriage, but I am not sure that does much work in resolving the tension between the desire to prohibit discrimination based on a status that is tied to at least a desire to engage in certain forms of behavior and the assertion of an associational right that excludes anyone who acts on that status. Nor does it change the fact that CLS most certainly - and quite explicity - draws a distinction between sexual orientation and acting on that orientation. In response to David Cruz' question, CLS would not extend membership to persons engaged in sexual activity within a same sex marriage or civil union. Its policy is not simply about sex outside of a marriage without regard to sexual orientation. CLS would exclude sexually active homosexuals even if, for example, Prop 8 was declared unconstitutional or improperly enacted, and those couples were married. CLS' statement of belief calls for members to refrain from all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.” So, at the same time that it insists on sex within marriage, it makes clear that marriage may not be between persons of the same sex. CLS certainly believes that its policy creates a distinction between sexual orientation and sexual conduct - although I agree that it is not simply that. In its letter to its Hastings requesting recognition, CLS quite forthrightly said that a person who engages in homosexual conduct or adheres to the viewpoint that homosexual conduct is not a sin cannot be a chapter officer or member. It also said that a person who has homosexual inclinations ut does not engage in or affirm homosexual conduct can be an officer or member. Now, I don't think its entirely unfair to say that this has a disparate impact on gays and lesbians (and, if it is unfair, it is certainly not because there are many more heterosexuals than homosexuals.) The policy excludes all sexually active homosexuals but only those sexually active heterosexuals who have sex outside of marriage. But I don't see the notion of disparate impact as helpful at all. The question, rather, is whether CLS' rights of association entitle it to make that distinction or, in the particular context of public fora analysis, whether Hastings decision to condition recognition of the group as a student organization is viewpoint neutral. My own view is that CLS - certainly outside the public forum context but, I would argue, within it as well - should be permitted to exclude those who do not share its views. Pushed to its logical conclusion, this may result in hard cases in which the question becomes whether these associational rights can be pushed to permit the exclusion not only of those persons who wish to act on a status but who adhere to views about that status on which otherwise applicable antidiscrimination law is based. Rick Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [layco...@umich.edu] Sent: Monday, May 10, 2010 11:53 AM To: Law Religion issues for Law Academics Subject: Factual Clarification re CLS CLS's membership policy does not turn on the . CLS's rule prohibits any unrepentant sexual relationships outside marriage, whether same-sex or opposite-sex. There is no classification based on sexual orientation. There is no disparate impact; there no are no doubt many more Hastings students in sexually active opposite-sex relationships than in sexually active same-sex relationships. It is true that the opposite-sex couples could legally get married, and the same-sex couples could not, but that has little relevance to the unmarried opposite-sex couples, who are unmarried for a reason: they are finanically or emotionally unprepared for marriage, or not yet ready to settle down, or commit, or whatever. Most of the same-sex couples are probably int he same situation in addition to being legally unable to marry. Anyone who is having sex and for whatever reason isn't married is excluded by the CLS rule. Quoting Esenberg, Richard richard.esenb...@marquette.edu: CLS v. Martinez occurred to me too. Although there are the complications of public fora analysis, it seems to me that the case may begin a process of facing the inevitable conflict presented by efforts to define a perspective that is still shared by a significant portion of the population - perhaps even a majority - as invidious discrimination. This strikes me as fundamentally different from our experience with race and gender. The national (if
RE: Factual Clarification re CLS
Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
The all comers policy may not be viewpoint discriminatory, but it is in, at least in potential, viewpoint annihilatory. That makes it nonsensical for a forum explicitly designed to encourage a diversity of viewpoints. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Monday, May 10, 2010 11:47 AM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can
RE: Factual Clarification re CLS
It is not true that it never happens. I think it was scientology in the late 70's or early 80's Scientology tried to take over an anti-cult group,invokng the Unruh Act. The California courts saw through the effort. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Monday, May 10, 2010 4:41 PM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song
RE: Factual Clarification re CLS
Did this attempted takeover of the anti-cult group by Scientologists happen in a law school, or other educational institution, where the cooperation incentives are maximized? If you are going to offer real examples, more details would be helpful. In the world of truly private associations (like religious congregations, or the Boy Scouts)), the right to exclude is of course a trump against any state-imposed policy of mandatory inclusion of all comers. But that doesn't mean that a state university must recognize that right to exclude when it sets a policy about access to the forum -- in that context, nondiscrimination among groups is the controlling norm. And all-comers is nondiscriminatory. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 16:49:55 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu It is not true that it never happens. I think it was scientology in the late 70's or early 80's Scientology tried to take over an anti-cult group,invokng the Unruh Act. The California courts saw through the effort. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Monday, May 10, 2010 4:41 PM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical
Re: Factual Clarification re CLS
I think Rick misreads Justice Breyer's comments. He was playing Michael, saying, tongue-in-cheek, that it would be fantastical that there would be this open exchange between opposing views on a law school campus. Michael was resisting agreeing that such an exchange was likely or good, and so Breyer needed to bring him back to another view of the universe to get Michael to answer the question he wanted answered. Careful reading of the transcript does not support Rick's interpretation. I think a law school has a compelling interest in having an all-comers policy, because it encourages lawyers to see all sides of every issue, regardless of their existing predispositions, which is crucial to becoming a good lawyer, no? In any event, this case is not about whether or not this group can protect its associational rights to exclude certain believers and actors. It is about whether a public university law school must provide certain meeting rooms and certain bulletin boards and money to a group that insists on exclusionary practices among its voting membership and leadership. There are no rules that forbid the group from meeting or holding the beliefs it holds. It is an attempt to move Rosenberger beyond its facts. I thought Rosenberger was wrongly decided, but cleverly argued. I think the Court needs to draw the line on this foolhardy doctrine before schools are required to have to pay for all worship services, which surely is not required by the First Amendment. Only Chief Justice Roberts and Justice Alito made any real effort to defend CLS's position, which seems to me to bode well for Martinez. But I would not have thought it possible that a majority of the Supreme Court today would agree that white crosses are the standard marker for our diverse array of soldiers, so as usual, it will be interesting to see what happens. Marci In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, icl...@law.gwu.edu writes: This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have
Re: Factual Clarification re CLS
Apparently the Scientologists tried twice; two reported cases seem to fit Marc's description: Hart v. Cult Awareness Network, 13 Cal.App.4th 777, 16 Cal.Rptr.2d 705 (Cal.App. 2 Dist. 1993) Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994) The cases didn't arise on a college campus. Art Spitzer In a message dated 5/10/10 4:50:53 PM, mst...@ajcongress.org writes: It is not true that it never happens. I think it was scientology in the late 70's or early 80's Scientology tried to take over an anti-cult group,invokng the Unruh Act. The California courts saw through the effort. Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
Ira Lupu writes: In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. But isn't that purpose fully served by requiring that campus groups allow all comers to attend meetings and participate in discussions? Does voting membership or eligibility for leadership positions further serve that purpose? And campus groups are not only discussion groups. Quite often they are action groups as well. For example, a CLS group and an Outlaw group at GWU may both want to present testimony at a DC Council hearing on a same-sex marriage bill. Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Perhaps democrats will not attempt to take control of the Young Republicans. But I think there is a good chance that socially liberal Christians may take control of a conservative Christian group that can't protect its doctrinal beliefs through its membership policy. By the way, it is clear that the CLS allows all comers to attend its meetings. This case is strictly about who can control an organization's beliefs and speech, not about who may attend meetings. I have read the oral argument transcript several times. And it is clear to me that Breyer believes an all comers membership policy is silly and completely inconsistent with a marketplace of ideas in which many groups with different beliefs debate and express different ideas from very different perspectives. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Quite apart from Justice Breyer's view of the matter, the all comers policy does seem fantastical since it wasn't cited by Hastings until after the matter was in suit and recognized student organizations had all sorts of limitations on who could become voting members or officers. One even had a racial exclusion. All were unrenarked upon by Hastings until this case came along. While I understand that the plaintiffs stipulated that that this was in fact at least one policy, it does seem like a contrivance (which doesn't mean it can be upheld). It is certainly the case that lawyers ought to learn to see (or, better put, understand the arguments on all sides of an issue) but it seems unlikely that an all comers policy will serve that end. Either no dissenters will join CLS, i.e., the takeover will not happen either due to incentives for cooperation or some other reason (in which case the all comers policy serves no real purpose) or they will in which case the group's message will be bent to the consensus. While that might happen because CLS members will be persuaded to abandon their retrograde ways, it seems just as likely - if not more likely - that the group's message will be diluted by the inclusion of those who don't share it. The end result is not to encourage diversity of viewpoints but to drive the range of viewpoints to those held by a consensus of students or, perhaps more accurately, a consensus of those students who find the expression of divergent points of view to be offensive or discriminatory. In any event, requiring CLS to accept those with differing points of view as voting members (as opposed to permitting them to attend and participate in CLS events as is already the case) is hardly the least restrictive alternatives. Of course, the case goes beyond Rosenberger's facts, but not necessarily its rationale. Hastings policy discriminates against creedal groups, i.e., those who define themselves by the desire to adhere to and promote some particular viewpoint. It is certainly an extension of the law to say that Rosenberger's prohibition against restricting participation in a forum to viewpoints about temporal matters might also cover restricting participation to those who insist on no particular point of view, but I am not sure it is an unreasonable one. Rick Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Monday, May 10, 2010 4:07 PM To: religionlaw@lists.ucla.edu Subject: Re: Factual Clarification re CLS I think Rick misreads Justice Breyer's comments. He was playing Michael, saying, tongue-in-cheek, that it would be fantastical that there would be this open exchange between opposing views on a law school campus. Michael was resisting agreeing that such an exchange was likely or good, and so Breyer needed to bring him back to another view of the universe to get Michael to answer the question he wanted answered. Careful reading of the transcript does not support Rick's interpretation. I think a law school has a compelling interest in having an all-comers policy, because it encourages lawyers to see all sides of every issue, regardless of their existing predispositions, which is crucial to becoming a good lawyer, no? In any event, this case is not about whether or not this group can protect its associational rights to exclude certain believers and actors. It is about whether a public university law school must provide certain meeting rooms and certain bulletin boards and money to a group that insists on exclusionary practices among its voting membership and leadership. There are no rules that forbid the group from meeting or holding the beliefs it holds. It is an attempt to move Rosenberger beyond its facts. I thought Rosenberger was wrongly decided, but cleverly argued. I think the Court needs to draw the line on this foolhardy doctrine before schools are required to have to pay for all worship services, which surely is not required by the First Amendment. Only Chief Justice Roberts and Justice Alito made any real effort to defend CLS's position, which seems to me to bode well for Martinez. But I would not have thought it possible that a majority of the Supreme Court today would ! agree that white crosses are the standard marker for our diverse array of soldiers, so as usual, it will be interesting to see what happens. Marci In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, icl...@law.gwu.edu writes: This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority
RE: Factual Clarification re CLS
I understand that the facts of CLS v. Martinez case are limited to voting membership and eligibility for leadership positions. But if the foundation of the CLS claim is that it is being required to sacrifice its freedom of association rights to obtain access to a designated public forum, why wouldn't those associational freedom rights also extend to deciding to who may attend meetings and participate in discussions? Just asking. Alan Brownstein UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com Sent: Monday, May 10, 2010 2:42 PM To: icl...@law.gwu.edu; religionlaw@lists.ucla.edu Subject: Re: Factual Clarification re CLS Ira Lupu writes: In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. But isn't that purpose fully served by requiring that campus groups allow all comers to attend meetings and participate in discussions? Does voting membership or eligibility for leadership positions further serve that purpose? And campus groups are not only discussion groups. Quite often they are action groups as well. For example, a CLS group and an Outlaw group at GWU may both want to present testimony at a DC Council hearing on a same-sex marriage bill. Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
In a message dated 5/10/10 6:01:48 PM, aebrownst...@ucdavis.edu writes: why wouldn’t those associational freedom rights also extend to deciding to who may attend meetings and participate in discussions? I think the associational claim might well extend to those activities. But mightn't the state educational institution be found to have an anti-discrimination interest that is compelling as applied to those activities, but that is not compelling as applied to voting and leadership? Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
I was at the oral argument in CLS v. Hastings. I think Marci's interpretation of Breyer's questions and comments is quite right. We'll know soon enough, but (from his questions, tone, and facial expression -- the latter two don't come through in a transcript -- at argument) I will be very surprised if Breyer joins an opinion that says an all-comers policy in this context is unconstitutional. If social liberals join a conservative Christian group, and succeed in changing the message, conservative Christians can leave and form a new, conservative Christian group. Do list members think the socially liberal Christians will just keep hunting down and infiltrating such groups? This seems fantastical (and slightly paranoid) to me. I'm still waiting for real-life, on-campus examples of such behavior. To Art Spitzer's question -- I don't know how you can say the purpose of an all-comers policy is fully served by allowing dissenters to attend meetings, but not vote or hold office. This is a matter of degree -- the more that dissenters can exercise political influence in the group, the more the interchange within the group may be open, dynamic, and non-dogmatic. Those may not be purposes that religious congregations may prefer, but the law school can have its own, independent purposes for insisting on access to full membership for all comers. (Whether anyone at Hastings LS really thought all of this through is another question, but CLS did stipulate that all comers is among the relevant policies.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 14:45:10 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Perhaps democrats will not attempt to take control of the Young Republicans. But I think there is a good chance that socially liberal Christians may take control of a conservative Christian group that can't protect its doctrinal beliefs through its membership policy. By the way, it is clear that the CLS allows all comers to attend its meetings. This case is strictly about who can control an organization's beliefs and speech, not about who may attend meetings. I have read the oral argument transcript several times. And it is clear to me that Breyer believes an all comers membership policy is silly and completely inconsistent with a marketplace of ideas in which many groups with different beliefs debate and express different ideas from very different perspectives. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Alan's question is (as always) a fair one. I'd say that the government's (Hastings Law School's) interest in having the message promoted by the groups in its forum available to all students is quite consistent with allowing those groups to have their own points of view, free from being taken over by a hostile majority. The claim that a group should be allowed to close its meetings to non-adherents is thus at least one step beyond* the claim that it should be able to have standards for those who set its agenda and speak its message. In other words, because the explicit purpose of the forum is to promote a diversity of viewpoint among groups for the benefit of the entire student body, requiring groups to allow any student to hear the messages put forward by the group helps to advance the purpose of the forum. I suppose this would be similar to saying that the student group in Rosenberger would have to allow any student to have a copy of its magazine, but would not have to allow any student to become an editor of the magazine. To the extent that participation in discussion by students who are non-adherents is consistent with the putting forward of the group's point of view, I think it also would be one step beyond for a group to claim a right to exclude non-adherents from active participation in discussion, where discussion is part of the activity. But this would be subject, just as in our classes, to the right of the discussion leader to guide the discussion and keep the discussion somewhat on point. Leaders would need to be able to prevent hijacking of Bible studies or other discussions by those intent not on participating in a cooperative spirit but rather on disrupting the activity. Whether an argument could be made for these one step beyond claims is not something I've considered. But they are distinguishable from the claim made by the Hastings chapter of CLS. At least that's my initial reaction to Alan's good question. Mark Scarberry Pepperdine *One Step Beyond was a TV show that ran about the same time that the original Twilight Zone series was on. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Monday, May 10, 2010 3:01 PM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS I understand that the facts of CLS v. Martinez case are limited to voting membership and eligibility for leadership positions. But if the foundation of the CLS claim is that it is being required to sacrifice its freedom of association rights to obtain access to a designated public forum, why wouldn't those associational freedom rights also extend to deciding to who may attend meetings and participate in discussions? Just asking. Alan Brownstein UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com Sent: Monday, May 10, 2010 2:42 PM To: icl...@law.gwu.edu; religionlaw@lists.ucla.edu Subject: Re: Factual Clarification re CLS Ira Lupu writes: In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. But isn't that purpose fully served by requiring that campus groups allow all comers to attend meetings and participate in discussions? Does voting membership or eligibility for leadership positions further serve that purpose? And campus groups are not only discussion groups. Quite often they are action groups as well. For example, a CLS group and an Outlaw group at GWU may both want to present testimony at a DC Council hearing on a same-sex marriage bill. Art Spitzer ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Factual Clarification re CLS
Rick writes If all groups must allow everyone and anyone to participate in the formation of its beliefs, there will be no diversity of ideas in the marketplace. Just a lot of watered down, least common denominators of expression. But this is more fantasy and fear. Students do and will self-select. The moderate feminists group will not take over the radical feminists group. The Republicans and Democrats will not co-opt each other and form the single political group of the mushy middles. Groups can form and reform at will (most schools require only a very small number of students to form a new, recognized group.) What some on the list seem concerned about is a group's right to maintain a constant and religiously orthodox message. Congregations have every right to insist on that, and to chose members, leaders, and even attendees at worship or lectures accordingly. But state schools do not have to support a structure that protects religiously orthodox messages. The forum can have many purposes, including not only diversity (which Hastings and others will inevitably have), but the opportunity for students to join a group and challenge its orthodoxy (however infrequently that happens, because of self-selection, exit options, and mutual forbearance). It's that right to join and challenge purpose that the all-comers policy may advance. And that purpose -- quite legitimate in this context -- is in perfect tension with the right to exclude that CLS advances in this case. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 15:28:12 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Alan asks a great question: I understand that the facts of CLS v. Martinez case are limited to voting membership and eligibility for leadership positions. But if the foundation of the CLS claim is that it is being required to sacrifice its freedom of association rights to obtain access to a designated public forum, why wouldn’t those associational freedom rights also extend to deciding to who may attend meetings and participate in discussions? Just asking. I think the essence of expressive association is that an expressive group speaks through its leaders, and leaders are elected by voting members. Hastings has created a limited public forum for the express purpose of creating a diverse marketplace of ideas. Even if the all comers policy is viewpoint neutral, Hastings reason for excluding a student group from its forum must be reasonable in light of the purpose of the forum. This policy is not reasonable in light of the purpose of the forum; it is destructive of a marketplace of ideas, of a forum in which groups with diverse beliefs come together to debate and express very different views about the good life and what is true, what is good, and what is beautiful. If all groups must allow everyone and anyone to participate in the formation of its beliefs, there will be no diversity of ideas in the marketplace. Just a lot of watered down, least common denominators of expression. Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw
Re: Factual Clarification re CLS
On 5/10/2010 3:14 PM, Ira (Chip) Lupu wrote: If social liberals join a conservative Christian group, and succeed in changing the message, conservative Christians can leave and form a new, conservative Christian group. You do recognize, don't you, that the Christian Legal Society is a national religious organization of attorneys and law students? I do think that CLS has a right to maintain control over its membership and its name. To suggest that it is appropriate to allow a student chapter to be taken over by people who have different beliefs, and then require the original group to form a new entity (which would also then have to have a new name) seems at least as fantastical as anything else you suggest. If someone wants a group for these new beliefs, that seems to be more appropriate to require them to start the new group. To Art Spitzer's question -- I don't know how you can say the purpose of an all-comers policy is fully served by allowing dissenters to attend meetings, but not vote or hold office. This is a matter of degree -- the more that dissenters can exercise political influence in the group, the more the interchange within the group may be open, dynamic, and non-dogmatic. Political influence? Firmly held religious beliefs are generally not established by who gets the most votes. And why do you want to insist that any student group be non-dogmatic? Is this another term for politically correct? Those may not be purposes that religious congregations may prefer, but the law school can have its own, independent purposes for insisting on access to full membership for all comers. And what might these be? It seems that this policy will ultimately backfire. What is to be gained by requiring a Latino student group to change its documents to allow whites to become voting members? Why should the gay, lesbian, transgender group have to allow individuals who do not believe in their lifestyle to be members of their organization? (Whether anyone at Hastings LS really thought all of this through is another question, but CLS did stipulate that all comers is among the relevant policies.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Mon, 10 May 2010 14:45:10 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncannebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Perhaps democrats will not attempt to take control of the Young Republicans. But I think there is a good chance that socially liberal Christians may take control of a conservative Christian group that can't protect its doctrinal beliefs through its membership policy. By the way, it is clear that the CLS allows all comers to attend its meetings. This case is strictly about who can control an organization's beliefs and speech, not about who may attend meetings. I have read the oral argument transcript several times. And it is clear to me that Breyer believes an all comers membership policy is silly and completely inconsistent with a marketplace of ideas in which many groups with different beliefs debate and express different ideas from very different perspectives. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 __ -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
While I agree with Rick's analysis, I would also point out that if the organization wants a closed meeting, it does not have to occur on the university campus. It can find a local church, a dorm room, or some other similar location. Lisa On 5/10/2010 3:28 PM, Rick Duncan wrote: Alan asks a great question: I understand that the facts of CLS v. Martinez case are limited to voting membership and eligibility for leadership positions. But if the foundation of the CLS claim is that it is being required to sacrifice its freedom of association rights to obtain access to a designated public forum, why wouldn’t those associational freedom rights also extend to deciding to who may attend meetings and participate in discussions? Just asking. I think the essence of expressive association is that an expressive group speaks through its leaders, and leaders are elected by voting members. Hastings has created a limited public forum for the express purpose of creating a diverse marketplace of ideas. Even if the all comers policy is viewpoint neutral, Hastings reason for excluding a student group from its forum must be reasonable in light of the purpose of the forum. This policy is not reasonable in light of the purpose of the forum; it is destructive of a marketplace of ideas, of a forum in which groups with diverse beliefs come together to debate and express very different views about the good life and what is true, what is good, and what is beautiful. If all groups must allow everyone and anyone to participate in the formation of its beliefs, there will be no diversity of ideas in the marketplace. Just a lot of watered down, least common denominators of expression. Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com IRS Circular 230 Notice To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding U.S. tax penalties. This message and any attachments may be protected by the attorney/client privilege. If you believe that it has been sent to you in error, do not read, copy or distribute it. Please reply to the sender that you have received the message in error and then delete it. Thank you. NOTE: Emails are not a secure method of communication. If you do not wish to obtain future communications from me via email, please advise me immediately. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
