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July 01, 2010


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Patrick S. O'Donnell

Steve Shiffrin has a different take on the case here (closer in spirit to a couple of comments on Rick Garnett's post):


Martinez at its core involved a clash between equality and diversity, and in this case, diversity should have prevailed.

I have some sympathy for this line of thought, but the question I have (and haven't seen a good answer for, I think) is why the "diversity" line should be drawn at the level of student organizations and not at the law school level. In this line of reasoning, we think that we want a diversity of organizations. But why isn't a law school that has the sort of rule that Hastings had (or even one that says it won't allow discrimination on the basis of sexual orientation, though that's not the rule Hastings had) also a sort of organization or association that ought to be able to set its own rules? After all, students who didn't like _that_ rule could go up the road just a bit to the University of San Francisco Law School, and given the tuition at Hastings today, it might not even be more expensive. Now, there are some state-actors issues here, of course (though these days it's perhaps dubious how much of a state actor Hastings is, as it's essentially been privatized by the UC System), but that's distinct from the "diversity" argument. And maybe there is a good, principled argument to be made that the "diversity" cut should (always?) be made at the club and not the school level, but I doubt it. (I'm especially skeptical of this idea given that many who have been making the claim that the diversity argument should apply at the club level in this case make it at the school level when it suits their purposes, leading me to be somewhat skeptical that they are really making a principled argument as opposed to giving an ad-hoc rationalization for the result they want, though I have no reason to think that's what John is doing here.)


The CLS case seems pretty clearcut. If a group can discriminate (i.e., the CLS) then it only seems fair that another group (i.e. Hasting) can discriminate. The CLS can still meet, talk and have full freedom of expression and association. They just don't get support for it from the school. If Hastings is forced to support a group it disagrees with then the CLS should be forced to associate with a group (e.g. gays) it disagrees with.

Howard Wasserman

The Florida Bar Association Convention sponsors a moot court competition; half the problem this year involved a student group with views that were somewhere between CLS and Westboro. The actual and practice rounds all, naturally, triggered questions of Student Westboro and similar hypos.

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