Freedom of association and the Supreme Court

Yesterday, the United States Supreme Court heard oral arguments in a case that will attempt to resolve an apparent conflict between the issue of “diversity” and the First Amendment right of “freedom of association”.  To me, at least, the facts are fascinating.

The University of California’s Hastings College of Law has a diversity policy that,

student groups seeking benefits such as school funding or preferred access to meeting rooms admit any interested student.

One such student group is the Christian Legal Society.  Although this group allows anyone to attend its meetings, in order to become a member of the group, one must sign a “statement of faith” agreeing that he or she will not engage in pre-marital sex, adultery or homosexual conduct.

Hastings determined that the Christian Legal Society’s policy violated the school’s diversity policy, and thus denied the Society the right to school funding, and, preferred access to meeting rooms.  The Society filed suit in the Federal District Court claiming that its First Amendment right to freedom of association was being abridged by the school’s policy.  Both the Federal District Court and the United States Circuit Court of Appeals for the Ninth Circuit held in favor of the law school, and the United States Supreme Court agreed to hear the case.

In his oral argument on behalf of the Society, Michael W. McConnell, stated,

“If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study,” … [w]hile the school could bar discrimination based on “status”—such as race—it could not stop a student group from limiting membership to those who pledge fealty to its beliefs…

And, in response to an analogy given by Justice Stevens, that demonstrated the belief that the school’s policy was acceptable, Mr. McConnell pointed out that, should the school’s policy be upheld,

if, for example, there is an NAACP chapter, it would have to allow a racist skinhead to sit in on its planning meetings.

Meanwhile, Justice Scalia found the concept of allowing Republicans to join the school’s Democratic club, perhaps solely for the purpose of disruption, “weird”.

On the other hand, Justice Sotomayor stated that the Society wasn’t being banned from the school altogether, but could, for example, hold their meetings in the cafeteria.  Personally, I think that argument dodges an important constitutional issue, but, it is certainly a viable position.

The Court’s opinion should be an interesting read regardless of the ultimate decision, so, I will keep you posted.

Posted in


The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. winnifredthewoebegon on April 20, 2010 at 4:25 pm

    Thanks for this post, SOS!  I find the whole issue fascinating because of the fact that it even became an issue and also because, as in most instances, the consequences of the ruling will ultimately be far reaching…I am curious what ramifications there would be for public schools (primary right up through state colleges).  It seems to me that if the Supreme Court can get involved in a diversity conflict within the walls of a private school, that would certainly mean something (although I don't know what) for public schools.

    Always interested in your take on issues like these!  Winni  :o)

  2. Dimsdale on April 21, 2010 at 6:51 am

    Very interesting.  The school also lists a "Black Law Students Association (BLSA)", a "Clara Foltz Feminist Association (CFFA)", the "Hastings Catholic Law Students Association (HCLSA)", the "Hastings Vietnamese American Law Society (VALS)", the "Japanese Law Society", the "Korean-American Law Students Association (KALSA)", the "La Raza Law Students Association", etc. etc.  (see

    Look at the description of the La Raza Law Students Association:  "To create a safe space where Latina/o students can forge a vibrant community by fostering political involvement, social awareness, cultural celebration, professional growth and academic excellence. Through these efforts, we also aim to bridge the resources and skills acquired as law students with the needs of the diverse Latina/o communities at large."


    Does that sound very welcoming to black, white, or Asian students?  Does it, on its face, even sound remotely in adherence to the University's diversity policy?  Are they refused rooms because of their de facto exclusionary title or policies?  Would they welcome a gringo like me as a member or leader of their group?  Would it be a "safe space" for me, a presumably white person?


    I think not.  Like the nice Chinese girl in my lab told me once: "you can practice with the Asian volley ball league, but you can't join them".  'nuff said.  They name streets after liberals: ONE WAY.

The website's content and articles were migrated to a new framework in October 2023. You may see [shortcodes in brackets] that do not make any sense. Please ignore that stuff. We may fix it at some point, but we do not have the time now.

You'll also note comments migrated over may have misplaced question marks and missing spaces. All comments were migrated, but trackbacks may not show.

The site is not broken.