hunter of justice

Memo to students: Revise your seminar paper over the break, submit to Dukeminier compettion

Each year, the Williams Institute conducts a competition for the best law student paper on a topic related to sexual orientation or gender identity.  The winner is published in the annual Dukeminier Journal and receives a $1,000 prize. Deadline is January 16, 2012. Details here.

Justice Margaret Marshall to teach at Harvard Law, which misspells names of important cases

Margaret Marshall, retired Chief Justice of the Supreme Judicial Court of Massachusetts, will become a lecturer and research fellow at Harvard Law School. Justice Marshall is the author of that court's opinion in Goodridge v. Department of Public Health.  That's Goodridge. From the school's press release:

During her 14 years on the Court before stepping down in December 2010, she wrote more than 200 opinions, including the landmark opinion in Goodrich v. Department of Public Health in 2003, legalizing same-sex marriage in Massachusetts. 

Couldn't resist.

Christian Legal Society just can't beat Hastings' defense

In Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Supreme Court ruled that Hastings College of Law acted constitutionally in requiring that officially recognized student organizations abide by an "all comers policy," under which any Hastings student could join any student organization. The CLS lawyers thought they had a sure winner in that case, seeing it as their ticket to expansion of Boy Scouts v. Dale into a broader principle allowing for the exclusion of openly gay members from a variety of groups. Many CLS supporters were shocked by their 5-4 loss in the Supreme Court.

On remand, CLS argued that the all comers policy was a sham, i.e., that it was applied differentially, in a way that discriminated against CLS. On Wednesday, the Ninth Circuit ruled in CLS v Wu that this, too, was not a viable claim. From SCOTUSblog:

...The Ninth Circuit Court ... said it could not find in the record enough to show that the group’s chapter at Hastings College of Law in San Francisco had actually made the argument it now wanted to press.

The CLS chapter’s lawsuit in federal court contended that the College of Law discriminates against it by denying it campus privileges because it will allow only students who share its religious views to take part in its activities. ... [T]he Ninth Circuit had upheld the school’s so-called “nondiscrimination policy” on the premise that it was an “all-comers policy” that was enforced neutrally.  In a 5-4 ruling June 28, the Court agreed.

Although the CLS has contended that the school’s participation policy was unevenly enforced, targeting only those groups that organize around religious beliefs or that disapprove of homosexuality, the Court majority said that argument “flatly contradicts” an agreement among the parties in a lower court stipulation that the policy actually was an “all-comers” participation mandate that did not depend upon a particular group’s status or beliefs.  The “all-comers” policy, viewed that way, was valid, the Court concluded.

The chapter, however, also had a second strand in its discrimination argument — that the policy, even if an “all-comers” approach as written, actually was enforced in a discriminatory way in practice.  The supposed neutrality of the policy, CLS had contended before the Justices, was a mere pretext for discrimination against religious groups.  The Supreme Court, however, found that no lower court had ruled on that argument, “and this Court is not the proper forum to air the issue in the first instance.”   It sent that question back to the Circuit Court to rule on it “if, and to the extent, it is preserved.”

On Wednesday, the Circuit Court reacted.  Borrowing a phrase used by other courts in similar circumstances, the Circuit Court panel said that “Judges are not like pigs, hunting for truffles buried in briefs.”  Though it said it had, nevertheless, engaged in an “assiduous digging” in the legal papers filed by CLS’s lawyers, it found that the discriminatory enforcement argument had not actually been put forth.  “We’ve found nothing reasonably supporting its existence,” the panel said.

In neither the CLS opening brief in the Circuit Court, nor in its oral argument there, the panel wrote, did this version of the chapter’s discrimination argument appear in a clear enough form to put it before the judges.  While it conceded that “judges sometimes overlook issues fairly presented by the parties,” the Circuit Court said, “that’s not what happened here.  CLS simply failed to raise this issue the first time around, and it is not entitled to ‘a second bite of the appellate apple.’ ”

That ruling apparently put an end to the chapter’s challenge at this stage.  The Circuit Court, however, noted that, if in the future the law school applied its policy in a way that was discriminatory, “CLS may be able to file a new lawsuit.”  But the issue can’t be addressed in this litigation, it concluded, thus formally denying the chapter’s motion to send the case back to District Court  to consider the alternative argument.

Opining like a state

The Sexuality and Gender Law Clinic at Columbia Law School has posted the first comprehensive database of state Attorney General Opinions related to lgbt and AIDS/HIV issues. A 29-page summary chart of the contents is posted as well. The AG Opinions cover everything from administrative law to criminal law to changes of birth certificates - a fascinating window into how sexuality and gender issues play out in the capillaries of state regulatory mechanisms.  The database is another great product of the Columbia clinic; thanks to the students who did it and clinic director Suzanne Goldberg.

Columbia Law School publishes analysis of best practices for changing military policies

The Sexuality and Gender Law Clinic at Columbia Law School has published Open Service and Our Allies, a study of how armed forces in other nations have managed the transition to inclusion of openly gay servicemembers. The Pentagon is currently studying the question of how to manage the elimination of DADT, with a report due to Defense Secretary Gates on December 1. The Columbia study found that instances of harassment and resistance to change were insignificant in the military forces of Australia, Canada, Israel and the United Kingdom; and that the most important single factor behind non-disruptive transition was strong and clear leadership within the military.
 
Kudos to the Columbia students who produced the report and to Professor Suzanne Goldberg, Clinic Director.

Minow on law school curricular reforms

From a Harvard Law Record article on Dean Martha Minow's "state of the school" speech earlier this month:

...Until HLS’ curricular reform effort was launched in 2003, Minow said, refinements to Langdell’s curriculum followed shifting temporal interests and did not fundamentally alter its character. The focus on private law classes taught using the case method remained paramount. But at the turn of the millennium, debates over the effects of globalization, the growing clout of interdisciplinary research, and an increasing focus on alternative dispute resolution techniques begged inclusion in an ossifying law school curriculum.

These debates ultimately helped launch the Harvard effort at curricular reform... The review process ... took the novel step of looking at approaches used by other professional schools – and discovered that law school curricula were relatively static by comparison to disciplines like medicine, which had introduced much more hands on learning techniques.

In 2005, the effort paid off: the new curriculum was approved. It not only added new classes to the largely unchanged core curriculum developed for first year students by Langdell – a change considered so revolutionary at the time that, according to Minow, “people said they would leave the school,” acting as if “God created the contracts class as it is” – but allowed students, for the first time, to take different course options in their first year. But because of contention that students required guidance, the school developed an alternative to an undergraduate major system – sequences of recommended classes known as programs of study.

Substantively, the new curriculum included not only the popular new class in legislation and regulation, but an elective in international law – one which had the desired effect, according to Minow, of unsettling students’ assumptions about law. The problem solving course designed for 1Ls’ January term was finally introduced early this year as the final piece of the reform, and has drawn the most attention from practicing lawyers.

Minow’s suggestions for the school’s pedagogical future echo emerging global trends. The financial crisis, she observed, accentuated the importance of establishing the notion that lawyers were independent actors with their own set of professional standards that operate independent of their interest in representing clients, as well as a need to develop long term analytical thinking about institutional design. Other trends, including new psychological evidence about how older students learn, the influence of new technology, and questions about financing education and driving down the high cost of tuition should also be taken into account.

The experiences of other schools should continue to be taken into account, Minow said, noting the recently founded University of California, Irvine law school’s central focus on problem solving as one example. Harvard Business School could serve as a model for educational financing; it does not depend on tuition as its primary source of income, she said, but on executive education and publishing. And the tension between public and private purposes that persisted throughout the law school’s history might be addressed by moving decisively to plug the gap in public interest law work by using student clinical talent in a way similar to journalism schools’ deployment of students to cover local issues.

“How can law school feel more like a lab?” Minow asked, pushing further the possibilities of comparative methodology.

She returned to the notion that major transformations made continuing reform of the law school curriculum not just a possibility, but a necessity. Worldwide shifts resulting from the growth in biotechnology, the revolution in information technology, increasing global economic ties, and the downsides of these trends, including resource scarcity, climate change, mass population growth, and human migration, she said, generated fundamental questions, begging answers regarding “common institutions and values that can help [people] deal with [those] of different traditions”.

This was an “inflection point in world history,” she concluded. “More than any time in recent memory, lawyers need to lead in creating solutions to problems."

Upcoming UCLA symposium on sexuality and gender law

I hope that interested readers - both academics and non-academics - will join the Williams Institute and the UCLA Law Review for a symposium on "Sexuality and Gender Law: Assessing the Field, Envisioning the Future." It will be held February 19 and 20 at UCLA Law School. The conference is open to the public, and registration is free.

The panel topics reflect the themes that will be highlighted: The Difference a Field Makes, Theoretical Perspectives on Multidimensional Advocacy, The Impact of Scholarship on LGBT Rights, Intersectionality, Sexuality in a Global Culture, The Many Meanings of Gender, and Next Steps. And the speakers are truly stellar - just check them out here.

Hope to see you there!

Will Supreme Court grant cert in Christian Legal Society case?

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar.  The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

Memo to the appointments committee: how to interview minority candidates

The hiring conference for entry-level law professors, known universally and grimly as the meat market, starts today. Having survived my one year as a candidate and many years on the hiring side of the table, I herewith pass on the following advice from a non-lawyer, but similarly experienced, historian, my friend Claire Potter, aka the Tenured Radical:

...[I]n lieu of giving bad advice to candidates, I thought I would give advice to those people who were doing the interviewing instead. And it's a particular kind of advice: how not to look like a fool when interviewing what we now call a "diversity candidate." Now for the sake of brevity, let's say the candidate is either a man or a woman (technically all women are diversity candidates), but may also be either of color or queer (technically queer people are never diversity candidates. Unless they are -- for some other reason.) Because these categories are too internally various, and because in fact there is surprising overlap in some of the ways you could possibly offend the people who occupy them, let's call them: Martians. And we'll assume for the sake of clarity in what follows that "you" are not a Martian, and that "I" am. Are you ready? Let's begin.

1. Do not tell irrelevant stories about your friends who are Martians, or that your daughter decided to come out as a Martian last year and how great you feel about it. I understand that you are doing this to make us Martians feel as though we are among friends, and to demonstrate your absolute lack of Martianophobia or your committed anti-Martianism. I appreciate that. Really, I do. But you know what? It suggests just the opposite. It suggests that the Martian in your presence, who is me, is making you uncomfortable, and that you are bravely overcoming it. We Martians are used to being in the minority, but it makes us impatient to have other people remind us of it all the time -- in the name of pro-Martianism, no less. So we will all do better during the interview if you stick to scholarship, teaching and what the actual requirements of the job are.

2. Do not take me to a Martian restaurant for dinner. First of all, a Martian restaurant that is not on Mars, or in a place with a significant Martian population, is likely not to be any good. It will serve Martian food cooked to the taste of the non-Martians who populate your planet. So I will find this depressing. But furthermore, it suggests that I, as a Martian, am in danger of feeling alienated on your planet because I may not be able to access my "culture." Though a Martian, as a scholar and an intellectual, I probably feel I am a little more cosmopolitan than that.

3. While we are at dinner, stay away from topics that betray how invisible the other Martians on campus or on your planet are to you. Telling me that I may wish to live on the planet one light year away because it has a larger Martian population is one way of conveying this, as is: explaining that retaining single Martians is so difficult because it is so difficult to meet and other, marriageable, Martians on your planet; or announcing that, incredibly, there is a Martian Episcopalian church that serves the entire planet right in your canyon! So even though there aren't many Martians on campus, there will be a terrific community for me. On Sundays. (Did I say I was religious? Are you sure?)

4. Admit it if your college does a crappy job of recruiting and serving the needs of Martians. Most colleges and universities that are not on Mars do -- it's not up to you to apologize for it. As in (1), don't tell me about the one Martian who graduated Summa and won the department prize twelve years ago. And although there may be serious Martian politics on campus, don't assume that I share your view of what it means to be progressive on these issues, even -- or especially -- if you are a fellow Martian.

5. Refrain from hinting to me coyly that there is someone I "really need to meet" but not telling me why. This is the most frequent way that people have of dropping a few hairpins that I am a Martian (duh), and this other person is a Martian, but being a person who doesn't really "see" or believe in interplanetary differences, you aren't going to say the word "Martian" (wink, wink.) Most Martians find this tiresome. We aren't at a job interview to meet other Martians: we're there to get a job. And if meeting another Martian on campus is important to me, I'll tell you so.

6. Try to police your references to Martian stereotypes, whether social or intellectual. Don't ask me, for example, why I ended up a historian and not a flight engineer; don't tell me that the special barber I need to cut the hair around my antennae is in the next town over (we don't all have antennae, ok?); and don't, for heaven's sake, if I am interviewing for a Renaissance Literature position, reassure me that the Martian Studies program is very welcoming. Don't put the chair of Martian Studies on my schedule without asking me, if I am not interviewing in Martian Studies, or set up lunch with the one other out Martian to talk about how I might like to work up a Martian survey course once I get a firm grip on the courses I am actually being hired to teach.

And last of all -- if you make any of the above errors, please forget about it and move on -- don't embarrass all of us by dwelling on your faux pas and trying to repair the damage. Martians are used to being in the minority, and we can take care of ourselves, thank you very much.

Homophobia at U VA law school, circa 1985 - UPDATED

10/6/09 UPDATE - Since the following post was published, multiple blogs have picked up the story; current Virginia Law Dean Mahoney issued a denial that discrimination was a factor in Bill's tenure denial; Bill replied that Mahoney was mistaken; and a U VA student blog republished an article from the student newspaper in January 1986 quoting many students as "shocked" that Bill did not receive tenure and voicing suspicion that something fishy was going on (the main belief being that Bill's criticism of law and economics scholarship was behind the decision).  In other words, the end point of this story seems to be a he-said-he-said dispute, with a conclusive adjudication of exactly what happened and why probably impossible. Bill is a friend and co-author; I believe his testimony. The bigger point is that he has opened a window into what the world was like for gay men and lesbians in law teaching in the 1980's - it wasn't pretty.

++++++++

As part of his testimony at last week's House hearing on ENDA, Bill Eskridge retold a story that many people find it difficult to believe: that he was denied tenure at the University of Virginia Law School in substantial part because he is gay. What follows is an excerpt from the full testimony (pp.83-93):

    …Although I was gay and was dating men in Washington, DC during my tenure at Virginia, I was never publicly “out,” largely because I thought that such a status would be lethal for tenure purposes; from time to time, I heard snide anti-homosexual comments from senior faculty. But because I was closeted, I was vaguely optimistic about tenure when my case came up in the Fall Term, 1985. … [A faculty subcommittee reviewed Eskridge’s work and enthusiastically recommended tenure. The full appointments committee, in a virtually unprecedented move, rejected the recommendation.]

My understanding was that the subcommittee’s report was supposed to serve as the factual record for the Appointments Committee to consider in making its tenure recommendation to the faculty.   Before my case, the Appointments Committee had generally included at least one faculty member who was also on the subcommittee, and the report was always accepted as the primary basis for the final recommendation.   In my case, however, there was no overlap of personnel, and the Appointments Committee wrote its own report, apparently the first time that happened under this bifurcated system. … According to faculty colleagues, the committee’s meeting was an emotional one, filled with tension and anxiety.

…The morning after the committee’s negative meeting, I remained unaware of the committee’s recommendations and of its substantive objections.   Apparently, other senior faculty members became aware of the committee’s negative leanings and the fact that the committee had kept me in completely in the dark and was not following the procedures that had been duly established by the faculty.   While I sat in my office preparing for class that morning, stormy conversations were apparently occurring at various parts of the law school’s building.  Late in the morning, as I was finishing up my class preparation, the chair of the committee stormed into my office and screamed at me for 10 minutes or so.  With clenched fists and a beet-red face, the chair of the committee threw a tantrum that included a string of accusations, such as “stabbing me in the back” and behaving in the treacherous manner that he and his colleagues ought to have expected of a “faggot.”   Apparently, the chair thought I had complained to the dean that he had been derelict in following the established law school procedures and that I was sneaking behind his back to discredit him.  In fact, I remained utterly clueless as to what those procedures were and was reduced to tears as the chair of the committee spat on me and called me dirty names.   During this tirade, the chair of the committee never shared with me his committee’s reasons, their recommendation, or the news that I had a right to appear before the committee.  Nor did he share this information with me thereafter.  (Nor did he apologize for unfairly screaming at me, spitting on me, or calling me a “faggot.”)…

            After the committee’s report was ratified by the faculty, blood was in the water.  For the remainder of my tenure at the University of Virginia School of Law, I was harassed on a regular basis by faculty colleagues and parts of the law school’s administration.   Several faculty friends and at least one member of the committee explicitly urged me to get out of Charlottesville as quickly as possible, partly because there was so much hatred toward me on the faculty and partly just for my own mental sanity and physical safety (during the tirade by the chair of the committee, I believed that he was going to assault me).   So I visited at the Georgetown University Law Center in academic year 1987-88 and accepted a permanent position there in 1988. …

           

 

Lawbama profs - fall update (updated 10/21/09)

All together, 46 law professors are working or will soon be working in the Obama administration. In addition, four profs have been named to advisory or oversight boards.

Here's the updated list:

ADELL AMOS (Oregon) has been appointed Deputy Solicitor for land and water resources at Department of the Interior.

SAM BAGENSTOS (Michigan) is Deputy Assistant AG in the Civil Rights Division at Justice.

JONATHAN BAKER (American) is Chief Economist at the FCC.

MICHAEL BARR (Michigan) is Assistant Secretary of Treasury for Financial Institutions.

DAVID BARRON (Harvard) is Principal Deputy Assistant AG at OLC.

NORMAN BAY (New Mexico) has been named to head the Office of Enforcement for the Federal Energy Regulatory Commission.

ROSA BROOKS (Georgetown) is a senior adviser to the Undersecretary of Defense for Policy.

MARCILYNN BURKE (University of Houston Law Center) is deputy director of policy and programs for the Bureau of Land Management

BILL BURKE-WHITE (Penn) is joining the State Department’s Policy and Planning office.

ALTA CHARO (Wisconsin) is a senior adviser in the Office of the Commissioner at the FDA.

SARAH CLEVELAND (Columbia) is Counselor on International Law with the Office of the Legal Adviser of the U. S. State Department.

TINO CUELLAR (Stanford) is Special Assistant to the President for Justice and Regulatory Policy, in the White House Domestic Policy Council.

SUSAN CRAWFORD (Michigan) is Special Assistant to the President for Science, Technology and Innovation Policy.

NESTOR DAVIDSON (Colorado) is Principal Deputy General Counsel at HUD.

LARRY ECHOHAWK (BYU) is the new head of the Bureau of Indian Affairs.

CHAI FELDBLUM (Georgetown) has been nominated to become a commissioner on the EEOC.

JODY FREEMAN (Harvard) is a counselor in the White House Office of Energy and Climate Change.

SETH HARRIS (New York Law School) is Deputy Secretary of Labor.

LISA HEINZERLING (Georgetown) wins the prize for first promotion: initially a senior advisor to EPA Administrator Lisa Jackson, she has been named Associate Administrator for the Office of Policy, Economics and Innovation (OPEI).

Spring semester round-up of professors moving to Administration - updated May 25

Wingnuts continue their efforts to block confirmation of Dawn Johnsen and Harold Koh, who have become victims of a delusional and insane smear campaign. Enough already! Where the hell is Al Franken?

Meanwhile, the spring semester has ended with this latest round of professorial appointments:

ROSA BROOKS (Georgetown), an expert in international human rights, will become senior adviser to the Undersecretary of Defense for Policy.

TINO CUELLAR (Stanford) is serving as Special Assistant to the President for Justice and Regulatory Policy, in the White House Domestic Policy Council; his primary fields are criminal justice, civil rights, and regulatory policy.

NESTOR DAVIDSON (Colorado) is taking the post of Principal Deputy General Counsel at HUD.

LARRY ECHOHAWK (BYU) will be the new head of the Bureau of Indian Affairs.

(NEW) CHRIS SCHROEDER (Duke) will become the Assistant AG in charge of the Office of Legal Policy at Justice.

DAVID VLADECK (Georgetown) will direct the Bureau of Consumer Protection at the Federal Trade Commission.

PHIL WEISER (Colorado) will be Deputy Assistant Attorney General for the Antitrust Division.

Previously announced new jobs for law professors after the jump. I'll do the next round-up at the end of the summer.

Predicting how Obama will choose a Supreme Court Justice

In light of Justice Souter's resignation, speculation is intense about the kind of justice that President Obama will appoint.  Most of this is just pointless noise; it's a good bet that the list was short before Souter's announcement, and that the POTUS is deciding now among a very small group. I think the best rule of thumb for a prediction is that Obama will appoint a person who he thinks will be the kind of justice he would be. (And Justice of the Supreme Court would be, imho, an excellent position for the big O after the end of his presidency.)

Last summer the NY Times published eight of the exams (scroll to bottom of link) that Obama gave while he was teaching at the University of Chicago Law School, together with two sample answers.  Almost every exam includes a question that involves sexual orientation or reproductive rights or a combination.  

To me, the most important aspect of this window into his thinking lies not in his answers, but in which questions he found intriguing and rich enough to build an exam around. Consider the 1996 con law exam (Part I), in which students had to analyze a "Preserving Family Values Act," that prohibited furnishing infertility services to homosexuals.  This was seven years prior to Lawrence v. Texas, although even today the Equal Protection Clause analysis would still be centered on Romer v. Evans, then only a year old. Read Professor Obama's analysis of that aspect of the hypothetical statute (pp 5-6).   it's cool, critical and analytical. 

This President knows and cares a great deal about the law. Among the names being endlessly recylced by the press as potential nominees, consider which would be most likely to write the questions and model answers as Obama did.  That's the short list.

Obama law prof update: Conservatives attack progressive feminist

Since my last post a month ago, the White House got around to formally announcing Harold Koh's designation as chief lawyer at the State Department, and Jonathan Cannon withdrew his name as nominee for Deputy Administrator at EPA. By far the most important developments center on Dawn Johnsen, the President's nominee to head the Office of Legal Counsel at Justice.

The Senate Judiciary Committee voted Dawn's nomination out of committee late last week, but it was a party-line vote with all Republicans except Specter, who abstained, voting against her. Dawn should be proud of these enemies. Republican Senator John Cornyn of Texas called her a "hardened partisan."  Cornyn was a major defender of Alberto Gonzalez, so his cred on this point is in the sub-basement. Plus, he's working hard to torpedo judicial nominees as well. Because of these hypocritical antics, Dawn's nomination may have to endure a battle in the Senate. Kudos to the NY Times, which ran an editorial yesterday calling for her confirmation:

Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs. The Senate should confirm her without further delay. ... There is no corner of the executive branch in greater need of a new direction than the Office of Legal Counsel. The impressive Ms. Johnsen is an excellent choice to provide it.

The attacks stem from her reproductive rights work and her scholarship addressing DoJ issues such as executive branch abuse of power. She'll be a terrific head of OLC.

UPDATE: Two law prof nominees for the Treasury Department were announced Saturday: Michael Barr (Michigan) as Assistant Secretary for Financial Institutions and Beth Garrett (Southern Cal) as Assistant Secretary for Tax Policy.

Ninth Circuit shoots down CLS appeal in Hastings case

In a one-paragraph, unpublished order issued just a week after oral arguments, the Ninth Circuit has ruled that the UC Hastings College of Law cannot be required to recognize and fund a religious student group that discriminates in the selection of members and officers. Christian Legal Society v Kane, 2009 WL 693391. At issue was Hastings' open membership rule prohibiting discrimination based on religion or sexual orientation of members.

The order states in its entirety:

The parties stipulate that Hastings imposes an open membership rule on all student groups-all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649-50 (9th Cir.2008). 

AFFIRMED.

The Alliance Defense Fund has filed a cert petition in the Truth case. (See summary of oral argument and link to cert petition.) CLS, which has chapters in 165 (out of roughly 200) law schools, is also expected to seek Supreme Court review.

From National Law Journal:

Hastings' attorney, Ethan Schulman of Folger Levin & Kahn in San Francisco, said the issue has arisen repeatedly in test cases at various university campuses across the country. The most recent was Feb. 6 in San Diego. In that case, U.S. District Judge Larry Burns granted summary judgment for San Diego State University against a challenge by Christian student groups.

The CLS case is one of a half-dozen test cases the group has filed in recent years against law schools around the country over similar nondiscrimination pledge requirements. The 9th Circuit decision to side with Hastings may put it in direct conflict with the 7th Circuit.

CLS attorney Timothy J. Tracey, of the Springfield, Va.-based Center for Law and Religious Freedom, argued that the school's denial of official recognition deprives it of some funding, access to recruit students at official events and access to the school Web site and other publications. The school does provide meeting space.