Law schools don't just turn out lawyers. In recent years, they have also produced litigation that finds its way onto the U.S. Supreme Court's docket.
In 2003, the University of Michigan Law School was the focus of a major affirmative action case, Grutter v. Bollinger. A coalition of law schools that barred military recruiters from campuses figured in Rumsfeld v. FAIR in 2006.
On April 19, the Court will hear arguments in Christian Legal Society v. Martinez, which will make the University of California Hastings College of the Law the next law school in the spotlight. A Christian student group challenged the San Francisco school for requiring it to adopt the university's nondiscrimination policy if it wants to become a registered student organization. The Christian Legal Society, represented by former appeals court judge and Stanford Law School professor Michael McConnell, claims the state school's requirement to allow nonadherents to join and even lead the group as a condition of recognition violated its freedom of association.
On the other side, arguing for the law school, will be former Solicitor General Gregory Garre, now at Latham & Watkins, who says the student group's rights have not been violated because it is free to forgo recognized status and "do as it wishes."
The case has drawn 38 amicus curiae briefs, an unusually large number.
The briefs offer contrasting views on the role of law school education and the pros and cons of exclusive membership in organizations. Some excerpts:
"The journey toward legal equality and social acceptance has often begun with the rise of private associations of individuals united in the pursuit of a common cause. ... Before there was a Nineteenth Amendment, there was the National Women's Party. ... And before many states adopted protections against sexual orientation discrimination, there was an army of gay and lesbian advocacy groups in America. ... The freedom to join with like-minded neighbors...has long been the essential democratic means by which Americans have pursued political, moral, cultural, and intellectual goals."
-- Brief in support of the Christian Legal Society by Thomas Hungar, Gibson, Dunn & Crutcher, on behalf of Gays & Lesbians for Individual Liberty.
"Legal education is not simply a matter of classroom learning but also of learning by doing. To train lawyers for their dual role as zealous advocates and officers of the law, legal educators must have the space to make the policy judgment that students practice, rather than merely hear about, nondiscrimination."
-- Brief in support of Hastings by Cornell Law School professor Sherry Colb, for the Association of American Law Schools.
"Because the will to censor disfavored viewpoints exists on campus, upholding the Ninth Circuit's decision [favoring Hastings] will have a devastating impact on all belief-based student groups, be they religious, political, or otherwise ideological. [Our] decade of experience defending First Amendment rights illustrates that students and administrators on campuses across the country proactively restrict and disrupt speech with which they disagree."
-- Brief in support of the Christian Legal Society by Harvey Silverglate of Zalkind, Rodriguez, Lunt & Duncan, for the Foundation for Individual Rights in Education and Students for Liberty.
"America's institutions of higher learning have an unfortunate history of excluding certain racial and religious minorities. ... Jews, in particular, have long been a target of discrimination because of their religious beliefs. ... Especially in light of this history, a university's official recognition and funding of student groups that discriminate on account of religious faith would at the least create the appearance that the university itself facilitates discrimination."
-- Brief in support of Hastings by Samuel Estreicher of Jones Day, on behalf of the American Jewish Committee, Americans United for Separation of Church and State, and the Union for Reform Judaism.
"Of course there is a strong interest in prohibiting religious discrimination where religion is irrelevant. But it is fundamentally confused to apply a rule against religious discrimination to a religious association. Hastings has changed the prohibition on religious discrimination from a protection for religious minorities into an instrument for excluding and victimizing those minorities. What Hastings has done is plainly unconstitutional."
-- Brief in support of the Christian Legal Society by Douglas Laycock, professor at University of Michigan Law School, on behalf of American Islamic Congress, Coalition of African-American Pastors, National Council of Young Israel and other religious groups.
"If CLS were to prevail on its novel theory that its free-association and free-speech rights to exclude others in turn require the government to subsidize its discrimination, Hastings and other public universities would have no choice but to subsidize racially discriminatory groups, student groups that restrict membership based on gender, or groups that bar students with disabilities, so long as these groups articulate some way in which their ideology or expression theoretically might be impaired by requiring them to comply with a nondiscrimination rule."
-- Brief in support of Hastings by Steven Shapiro of the American Civil Liberties Union, on behalf of the ACLU and the National Education Association.
"Hastings has no obligation to underwrite the cost of a student association in enabling it to hold meetings or express its ideas. But once Hastings establishes a process by which it provides funding and allows access to its facilities to student groups, this process must comply with the First Amendment. Hastings has conditioned a student association's access to these benefits on complying with a non-discrimination policy, which prohibits the association from requiring its members to adhere to certain beliefs. In doing so, Hastings has discriminated against CLS based on its core set of beliefs ... There is no difference here between requiring inclusion and conditioning access to a public forum on the inclusion. Either way, the government is forcing an expressive association to abandon its right of self-definition and to alter its message in order to disseminate that message in a public forum."
-- Brief in support of Christian Legal Society by Michigan Solicitor General B. Eric Restuccia on behalf of Michigan, Alabama, Colorado, Florida, Idaho, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and West Virginia.
"As this Court explained in Sweatt v. Painter ... law school is a 'proving ground for legal learning and practice,' in which students are exposed to 'the interplay of ideas and the exchange of views with which the law is concerned.' While public universities have a unique interest in protecting free speech, they also have a substantial and justified interest in enforcing neutral nondiscrimination policies by refusing to subsidize student organizations that discriminate against members of the school community on bases that the school deems inconsistent with its own mission of creating an educational environment characterized by equality and fairness. The university’s decision not to actively assist such organizations furthers objectives that are critical to the school itself and to society more broadly. This is particularly the case in higher education, and even more so in law schools, which prepare many of our Nation’s future leaders."
-- Brief in support of Hastings by Carolyn Lamm of the American Bar Association on behalf of the ABA.
