The all comers policy may not be viewpoint discriminatory, but it is in, at least in potential, viewpoint annihilatory. That makes it nonsensical for a forum explicitly designed to encourage a diversity of viewpoints.
Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Monday, May 10, 2010 11:47 AM To: Law & Religion issues for Law Academics Subject: RE: Factual Clarification re CLS 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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