At any rate it’s not a victory for opponents of Resolution 44 like the Review writers. In a 5-4 decision, the Supreme Court ruled today in favor of Hastings Law School, which took away certain privileges from the Christian Legal Society after that group excluded homosexual students from participating in their organization. In short, the situation isn’t far off from the Chi Alpha controversy on Cornell’s campus. You can find all the details of the case here— yes, this is the CLS’s webpage, but any bias they might have isn’t reflected on the official court documents available here.
Many are proclaiming this ruling as a victory for university anti-discrimination clauses. “The Supreme Court ruled 5-to-4, that public colleges and universities may require religious organizations seeking recognition or funds as campus groups to comply with anti-bias rules,” writes Inside Higher Ed. But that’s not entirely precise. I’ll openly admit that a lot of the legal jargon/technicalities in the Court’s opinion make it a difficult read, so I’ll appeal to higher authorities in this case. Volokh writes:
I originally described the Court’s decision as dealing with nondiscrimination policies, but I’ve updated the post to be more precise: The Court treats the Hastings policy at issue in the case as a requirement that student groups accept all students, “regardless of … status or beliefs,” to the point that “for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.” The Court concludes only that this policy is constitutional; it does not directly opine on whether it would be constitutional for the university to have a policy that only bars discrimination based on race, religion, sex, sexual orientation, and the like (and that thus lets groups discriminate based on other criteria, such as a student’s beliefs that do not fall within the rubric of “religion”).
It’s clear then that in this case, the SC is not endorsing the constitutionality of non-discrimination policies like Resolution 44, but rather stating that there is nothing unconstitutional about the “all comers” policy that Hastings implemented.
Three additional thoughts on the ruling and what it means for Cornell:
1) I thought it was a bit ironic– almost comical– that the SC deemed constitutional the exact kind of “all comers” policy that everyone involved in the Cornell Resolution 44 debate thought was ludicrous and unreasonable. Everyone seemed to agree that it would be unreasonable for a campus policy to prevent the Cornell Review, for example, from telling a member of the Socialists club that he or she couldn’t run for an E-Board position. SA President Vincent Andrews agreed with this when the Review interviewed him in March: “In no way, shape, or form do I support discrimination, nor do I think any student should be excluded from a group. That said, do I think a Democrat should be able to be chairman of the Cornell Republicans? No. It’s a tricky issue, but that doesn’t mean we shouldn’t attempt to address it.” So basically the SC has affirmed an umbrella, zero-tolerance discrimination policy that nobody thought was necessary or appropriate in the first place.
2) This case said nothing about the controversial extension of legal protections to previously unprotected campus groups that was a crucial part of Resolution 44. This extension of legal protections was also one of the reasons that Skorton did not sign Resolution 44 back in April.
3) I think it’s unlikely that this ruling would have had any significant impact on Skorton’s decision to not sign Resolution 44. In addition to the reasons he listed in his open email, I’m sure Skorton’s lawyers advised him against the giant can of lawsuit worms this policy would have opened. The fact that the SC gave a thumbs up to Hastings’ “all comers” policy does not mean much for the possibility of other kinds of lawsuits against Cornell.
