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Supreme Court declines to review case challenging San Diego State’s nondiscrimination policy


By Scottie Thomaston

The Supreme Court today decided it will leave in place a Ninth Circuit decision that upheld San Diego State’s nondiscrimination policy as constitutional. The policy was challenged as a violation of the first amendment’s free exercise clause along with its freedom of speech and association guarantees. From the Associated Press:

The policy says officially recognized campus groups can’t discriminate based on religion or sexual orientation.

A Christian fraternity and a sorority at San Diego State University sued in 2005, arguing that the policy violates their religious freedom. The groups are restricted to Christian members.

The Supreme Court’s denial of certiorari (review) effectively leaves in place a gay-affirmative decision by the Ninth Circuit. Their ruling concluded:

San Diego State’s nondiscrimination policy, as written, is viewpoint neutral and reasonable in light of the purpose of the student organization program. Thus, the university’s policy does not violate Plaintiffs’ rights of free speech and expressive association. Moreover, the policy does not violate Plaintiffs’ rights to free exercise of religion and equal protection under the law. But the evidence raises a triable issue of fact as to whether San Diego State has exempted certain groups from the policy while not granting such an exemption to Plaintiffs. We therefore remand to the district court for further proceedings consistent with this opinion.

Along with ruling that the policy doesn’t violate free speech and expression the Ninth Circuit sent the case back to the lower court to gather evidence in an attempt to show that the college is allowing for exemptions from the nondiscrimination in some cases while denying it to this group. This selective enforcement complaint was mentioned but insufficient evidence had been brought to court to rule definitively.

Chris Geidner at Metro Weekly has more about what this means and where this decision will become precedent for future cases. :

No justices announced their disagreement with the decision not to hear the case. The decision is not a resolution by the Supreme Court of the legal questions raised that would serve as a precedent across the country; it does, however, mean that the Ninth Circuit decision stands as a precedent for all lower courts within the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

The Court had previously decided, in Christian Legal Society v. Martinez, that public colleges’ nondiscrimination policies which mandate allowing anyone into a group regardless of if they adhere to the beliefs of the group or not is constitutional. This case is different, because instead of asking the Court to decide whether a policy mandating admission of all people regardless of their viewpoint is constitutional, they asked them to decide:

[W]hether a state university can deny recognition to a religious student organization because the group requires its officers and voting members to adhere to its core beliefs, even though the same university recognizes secular organizations with identical membership policies.

The Ninth Circuit holds that these types of nondiscrimination policies are constitutional. The decision to deny cert is a win for anti-discrimination as well as another loss for the Alliance Defense Fund.


  • 1. Richard Lyon  |  March 19, 2012 at 3:47 pm

    How does this case tie into the one at the law school in San Francisco. I think it was Hastings. The issues sound pretty similar.

  • 2. 415kathleenk  |  March 19, 2012 at 3:55 pm

    another loss for Alliance Defense Fund is good news

  • 3. Walter  |  March 19, 2012 at 6:11 pm

    Here is a link if anyone would like to download a "pdf" file of the decision.

  • 4. rocketeer500  |  March 20, 2012 at 8:38 am

    Having graduated from San Diego State University, I'm really proud the University didn't back down, and saw this case thru court. While I wasn't out yet, this University was very strong with diversity and its commitment to anti-discrimination. I'm glad to see that some things haven't changed.

  • 5. Supreme Court declines to&hellip  |  March 20, 2012 at 11:14 am

    […] From the Associated Press:The policy says officially […] You may view the latest post at… Rate this: Share this:EmailTwitterLike this:LikeBe the first to like this post. Posted by […]

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