Mark's helpful post provides a thoughtful response to my earlier question -- but in doing so, it raises another question about the potential scope of the Court holding in the CLS case.
In my view, the forum that Hastings created was essentially a designated public forum, not a designated limited public forum. As such, it had to be open to everyone on pretty much the same terms as a traditional public forum. On that understanding, I think one can argue that a student group's right of associational freedom extends not only to the power to determine who may serve as group leaders or be counted as voting members. It would also extend to determining who may participate in group events and discussions as well. Mark's response suggests that the forum Hastings created was more of a designated limited public forum than a designated public forum. It has parameters designed to serve a particular purpose -- "to promote a diversity of viewpoint among groups for the benefit of the entire student body." Assuming that this is a legitimate parameter to impose on a limited public forum, Hastings may deny access to the forum to groups that do not fit within the forum's parameters. A group that excluded students from participating in events and discussions would fail to satisfy the forum's requirements and could be denied access to it. What troubles me about this argument is that it depends so much on the nature and parameters of the forum that Hastings or some other university or law school chooses to create. That leads me to this question: If the parameters of the forum a university creates may permit the university to restrict a student group's associational freedom with regard to controlling access to its events and discussions, might one argue that different parameters -- say parameters designed to create internal dialogue and discussion within student groups -- would permit the university to restrict a student group's associational freedom with regard to choosing its own leaders and voting members. I understand the argument one might make that Hastings did not in fact create such a forum so the possibility that it, or another university, could do so would not preclude a decision favoring CLS in this litigation. But this analysis would make a CLS victory of relatively limited value. A different university, creating a more limited forum for a different purpose, would not be bound by the decision. For the CLS case to apply more broadly, the Court would have to conclude that a university cannot constitutionally create a designated limited public forum that denies access to groups that impose restrictions on who may serve as leaders or be counted as voting members. That holding raises the question of why a university should be prohibited from creating this kind of limited public forum because of the burden it imposes on associational freedom, but may create a limited public forum requiring all groups seeking access to it to open their events and discussions to everyone -- notwithstanding the burden such requirements impose on associational freedom. Mark quite fairly notes that he has not yet considered this question. He also notes that the Court does not need to reach it to decide the CLS case. I think that is correct. But I also think that the more the Court's decision in the CLS case is based on the specific purpose for, and parameters of, the forum Hastings created, the more limited will be the scope and applicability of its holding and analysis. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Monday, May 10, 2010 3:21 PM To: Law & Religion issues for Law Academics Subject: RE: Factual Clarification re CLS Alan’s question is (as always) a fair one. I’d say that the government’s (Hastings Law School’s) interest in having the message promoted by the groups in its forum available to all students is quite consistent with allowing those groups to have their own points of view, free from being taken over by a hostile majority. The claim that a group should be allowed to close its meetings to non-adherents is thus at least “one step beyond”* the claim that it should be able to have standards for those who set its agenda and speak its message. In other words, because the explicit purpose of the forum is to promote a diversity of viewpoint among groups for the benefit of the entire student body, requiring groups to allow any student to hear the messages put forward by the group helps to advance the purpose of the forum. I suppose this would be similar to saying that the student group in Rosenberger would have to allow any student to have a copy of its magazine, but would not have to allow any student to become an editor of the magazine. To the extent that participation in discussion by students who are non-adherents is consistent with the putting forward of the group’s point of view, I think it also would be “one step beyond” for a group to claim a right to exclude non-adherents from active participation in discussion, where discussion is part of the activity. But this would be subject, just as in our classes, to the right of the discussion leader to guide the discussion and keep the discussion somewhat on point. Leaders would need to be able to prevent hijacking of Bible studies or other discussions by those intent not on participating in a cooperative spirit but rather on disrupting the activity. Whether an argument could be made for these “one step beyond” claims is not something I’ve considered. But they are distinguishable from the claim made by the Hastings chapter of CLS. At least that’s my initial reaction to Alan’s good question. Mark Scarberry Pepperdine *”One Step Beyond” was a TV show that ran about the same time that the original Twilight Zone series was on.
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