Leaving the Dale to Be More FAIR: On CLS v. Martinez and First Amendment Jurisprudence
Capital University - Law School
11 First Amendment Law Review 235-89 (2012)
In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more general First Amendment doctrines. While the Court is appropriately criticized for the way that it has sometimes interpreted First Amendment protections of speech and association both as a general matter and in the university context in particular, the Martinez reasoning and result make the best of a jurisprudence that has lost its moorings. Ironically, Martinez may come to stand for a more robust right of association outside of the limited public forum context.
Keywords: limited purpose public forum, association, university, viewpoint discrimination
JEL Classification: k10
Date posted: February 10, 2013