Christian sorority and fraternity groups failed in their constitutional free speech challenge of San Diego State University’s nondiscrimination policy in group membership. But the 9th U.S. Circuit Court of Appeals said Alpha Delta Chi sorority and Alpha Gamma Omega fraternity are entitled to a trial over whether the school enforced the rule selectively against them while recognizing others.
The sorority requires members to acknowledge a personal acceptance of Jesus Christ as savior, active participation in Christian service and regular attendance at an evangelical church. The fraternity also requires members to accept Jesus as savior and officers to sign a statement of faith.
The groups sought official campus recognition to allow use of the school’s name and logo, access to funding and free campus office space and meeting rooms. But they have been denied recognition and must pay for meeting space.
Judge Harry Pregerson pointed out that the U.S. Supreme Court has upheld a similar nondiscrimination rule at Hastings College of Law in San Francisco requiring campus groups to offer open eligibility for membership and leadership to all students.
But the high court did not resolve the question of whether a narrower nondiscrimination policy, which prohibited restrictions based only on race, gender, religion or sexual orientation, would survive. The 9th Circuit answered that question saying it can be a permitted restriction on campus groups seeking university recognition.
The three-judge panel held the school’s rule does not violate the Constitution’s free speech or free association rights.
But that isn’t the end of the story. Although the rule survives, the two Christian groups argued that the school has not applied it uniformly to all groups. They argue the school gave official recognition to Catholic Newman Center, which requires membership in the Catholic Church and the African Student Drama Association limits leadership positions to students from Africa.
“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,” Pregerson wrote.
He was joined by Judge Susan Graber and visiting Judge Kenneth Ripple from the 7th Circuit in Chicago.
The case drew plenty of attention from conservative Christian groups and liberal civil liberties organizations, including the National Legal Foundation, the ACLU, Lesbian Gay Bisexual Transgender Project in San Francisco and New York.
The case goes back to the trial court in San Diego.
Case: Alpha Delta v. Reed, No. 09-55299
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