Friday, August 12, 2011

Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011)

In Christian Legal Society Chapter of the Univ. of Cal. Hastings School of Law v. Martinez, 130 S.Ct. 2971 (2010) a 5-4 majority of the Supreme Court held the law school policy prohibiting discrimination based on race, gender, and a variety of other "protected classes" applied to the Christian Legal Society and foreclosed the group from accepting a member who did not subscribe to the organization's religious principles. Other secular groups could impose the same prohibitions, yet the Law School permitted them to use the facilities of the premises although denied to the Christian Legal Society.  According to the majority, the Law School allowed "all comers" to join various groups despite their restrictions except the Christian Legal Society.
The 9th Circuit took up a similar case in Alpha Delta Chi Chapter v. Reed.  San Diego State has an unequivocal, unambiguous and repeatedly established written policy emphasizing diversity and its importance to all students. Almost a "racial preference" policy in tone.  Because the Alpha Delta Chapter mandates compliance with Christian principles as a condition of membership, it encountered the same resistance from the San Diego Administration as in Hasting in using school premises and other "perks" allowed to secular groups.  The Chapter filed suit in U.S. District Court and did not prevail.  The Chapter appealed to the 9th Circuit.

The 9th Circuit panel cited the Supreme Court case above and found nothing wrong with excluding the Alpha Delta Chapter from recognition as an approved student group.  To its credit, on remand the 9th Circuit panel allowed the Alpha Delta Chapter to provide evidence that the San Diego State Administration was applying its policy in a discriminatory manner and ordered the District Court to conduct findings on that issue.

The anomaly of this case: In its student policy manual, San Diego State repeatedly mandates a non discrimination policy applicable to race, gender, ethnicity, sexual orientation, encouraging students to attend any program approved by the administration which does not discriminate. The administration provides various perks" to approved groups.  Lauding its non discrimination policy, its policy presumably would open the doors to anyone on the basis of "status" but not "beliefs."  In other words, the policy discriminates against Christians who foreclose membership from those who do not share their convictions unrelated to their status.. "Beliefs,"not "status," toward a group should allow membership to anyone who shares those convictions.
Note:  On the entire campus only the Christian group is denied recognition by the Administration. In a concurring opinion, the judge notes the San Diego State policy "marginalizes" some students in clear violation of the University exhortation to diversity.  And the record documents the same dilatory conduct of San Diego State personnel as in Hastings in determining approval as a student group.  For skeptics, the administration knows students all will graduate and go away.

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