The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1 - 146
which encourages tolerance, cooperation, and
learning among students. Fourth, the Court
indicated that the policy was consistent with
California's nondiscrimination law, thereby
demonstrating Hastings' commitment to refusing to subsidize conduct disapproved by
the state.
The Supreme Court was convinced that in
light of the alternative social media channels
that were available to CLS even without RSO
status, the all-comers policy was all the more
reasonable. The Court next rejected CLS's concerns that if it had to comply with the policy
there would be no diversity of perspectives on
campus and that individuals who were hostile
to it could infiltrate its ranks in order to subvert
its mission. The majority thought that insofar
as the policy does allow clubs to make eligibility for membership and leadership positions
conditional on such qualifications as attendance at meetings, dues payment, and other
neutral criteria, CLS's concerns were unfounded. However, the Court did not directly address
whether accommodations should be made for
sincerely held religious beliefs, since the question had not been raised.
The Supreme Court concluded that the allcomers policy was constitutional but remanded
the dispute to the Ninth Circuit for further consideration. The Justices pointed out that insofar
as the lower courts failed to address whether
Hastings officials selectively enforced the allcomers policy, the Ninth Circuit had to decide
whether CLS´s argument remained viable.
Justices offer concurrences. Justice Stevens,
in the final case of his almost 35-year career
on the Supreme Court, briefly sought to rebut
Justice Alito's dissent, which viewed the policy
146
as unconstitutional. Stevens responded that
although CLS is free to limit membership
in its off-campus activities, the First Amendment does not require the policy at Hastings to
permit such behavior.
In an even briefer concurrence, Justice
Kennedy posited that Hastings officials and
the leadership of CLS agreed that there was
no evidence of viewpoint discrimination in
the policy. He explained that the result might
have been different if CLS had been able to
prove that the all-comers policy was designed
or employed to infiltrate its membership or
challenge its leadership in an attempt to stifle
its perspective.
Depending on one's interpretation
of CLS, there is room for alternative
views on its implications for student
affairs housing professionals.
Four Justices dissent. Justice Alito, joined
by Chief Justice Roberts along with Justices
Scalia and Thomas, authored a lengthy dissent.
Justice Alito feared that the Supreme Court
majority imposed a significant restriction on
religious freedom, especially since law school
officials had not relied on the all-comers policy
until, he maintained, CLS raised its complaints.
Alito further asserted that the Hastings policy,
ostensibly viewpoint-neutral in a limited open
forum, placed a substantial burden on the religious freedom of CLS's members but not on
any other on-campus group, thereby unreasonably infringing on their rights.
THE JOURNAL OF COLLEGE AND UNIVERSITY STUDENT HOUSING
The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1
Table of Contents for the Digital Edition of The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1
Contents
The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1 - Intro
The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1 - Cover1
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The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1 - Contents
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The Journal of College and University Student Housing - Volume 40, No. 2 & Volume 41, No. 1 - Cover4
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