Interestingly, Hastings takes the position that the policy it is
enforcing against the CLS is not a sexual orientation policy, but an
"all comers" policy, a policy that forbids any group from discriminating
against any person who wishes to be a member. Under this policy, an
NAACP student group would have to admit racists as voting members and
even leaders of the group, and the Young Republicans would have to allow
democrats to be voting members and leaders.
I think the school
took this tack to avoid the viewpoint discrimination argument, but may
have substituted an even greater problem for the one it seeks to avoid.
The
school may even lose Justice Breyer, who in the oral argument referred
to the policy as "fantastical" and as creating a silly kind of forum in
which "everyone gets together in a nice discussion group and hugs each
other."
That led Mike McConnell to conclude that the policy does
not even provide a rational basis for excluding a student group from a
forum with the stated purpose of creating a diverse marketplace of
ideas. As Mike put it, the all comers policy does not even slightly
advance the stated purpose of the forum, and indeed is destructive of
that purpose by prohibiting groups from having a membership policy based
upon its organizing principles and beliefs.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
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