Martinez Ruling: Ninth Circuit Affirmed, but with Remand

The Court rules that an "all comers" policy, at least as it exists at the Hastings College of Law, is constitutionally reasonable, taking into account all of the surrounding circumstances. The opinion notes that the lower courts did not address the CLS's argument that hastings selectively enforces its "all comers" policy. Therefore, the 9th Circuit may consider that argument if, and to the extent that, it has been preserved by CLS. In dealing with the policy, the Court's opinion notes that it was designed to open eligibility to student organizations given access not only for membership but also for leadership.

Interestingly, rather than resolving the free association issue, the Court seems to have very narrowly decided the case - dealing with an "all-comers policy" that is virtually unique to Hastings. It appears that the Court has left open the core issue that has bedeviled student groups nationwide, the conflict between free association and nondiscrimination policies that prohibit, among other things, discrimination on the basis of religion and sexual orientation.

This is pure first blush assessment; more to come as I read through the opinion. Bottom line: a disappointing decision but one that does not come close to settling core constitutional issues on campus. In fact, it doesn't even decide this case since it's remanded for further proceedings.Source URL: http://icip2idayusof.blogspot.com/2010/06/martinez-ruling-ninth-circuit-affirmed.html
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