Two blogs yesterday commented thoughtfully on my analysis of the Christian Legal Society cases pending against various law schools. The responses help demonstrate the complexity of the issue in this controversy.
Joseph Knippenberg at NoLeftTurns says: “student body diversity is consistent with homogeneity in student groups, is it not? If so, then compelling student chapters of the CLS to be as "diverse" as the student body as a whole is not the "least restrictive means" of accomplishing the university’s end.”
At Southern Appeal, blogger QD makes a related argument: “absent a willingness on the part of the law schools to allow its diverse student body (and, perhaps, faculty) to associate as they see fit, isn't it much more likely that you'll end up with an ideologically homogeneous community? Isn't association (and exclusion) meant in part to allow us to develop our ideas and views with others with whom we share certain basic premises?”
It seems to me that at least a partial answer to both of these objections is to focus on the distinction between formal law school recognition of a student group and the broader question of the group’s right to exist free of general governmental regulation. A law school is making a statement about the atmosphere it wishes to foster, and the kind of student body it wishes to attract, when it prohibits discrimination on various bases. The law school is in a position similar to the organizers of the St. Patrick’s Day Parade in the 1995 Supreme Court case of Hurley v. Irish American Gay Group of Boston. There the forced presence of a gay group in the parade would have altered the expressive content of the parade. The presence of groups that discriminate on the basis of religion or sexual orientation in a law school forces the law school to alter the expressive content of its message to potential students.
On the other hand, there is an issue of balance. We presumably would not want to permit evangelical Christians to take over the Jewish Law Student Association or dyed-in-the-wool Socialists to take control of the student chapter of the Federalist Society. Is there a way to preserve groups from this kind of subversion while maintaining a climate of open access?
