Public university can defund biased religious group, AU contends.

A public university has no obligation to fund a student group that discriminates on the basis of religion and sexual orientation, Americans United has told a federal appeals court.

In a friend-of-the-court brief filed with the 9th U.S. Circuit Court of Appeals, Americans United argued that Hastings College of Law, a part of the University of California system, does not have to officially recognize and support a student organization that excludes law students who do not subscribe to a certain type of Christianity or who are gay.

The flap arose after the student chapter of the Christian Legal Society (CLS) at Hastings brought a lawsuit demanding an exemption from the law school's Nondiscrimination Policy. The policy states that all student groups that seek official recognition and direct financial support from the school must not deny membership based on a student's race, color, religion, national origin, ancestry, disability, age, sex and sexual orientation.

The CLS affiliate violates two of those prongs, denying membership to non-Christians and gays. In court, the organization asserted that the university's policy violated its religious liberty rights.

Americans United disagrees. In its 30-page brief in Christian Legal Society Chapter v. Mary Kay Kane, AU attorneys argue that the university's anti-discrimination policy applies equally to all student groups and that CLS has no constitutional right to demand special treatment by the university.

Citing federal court precedent, Americans United notes that state institutions must not treat religious organizations more favorably than non-religious ones.

The brief, filed Jan. 19, further argues that exempting the Christian student legal group from the anti-discrimination policy would amount to providing preferential treatment to the religious group because "unlike all other campus groups, religious or secular," the CLS would be able to discriminate and still receive state funds.

According to AU, the university's anti-discrimination policy does not violate the religious liberty rights of the Christian student group. The CLS, under the school's policy, can still advocate its religious beliefs and use campus facilities to meet and spread those beliefs, but without receiving tax dollars.

"The law school's policy against discriminatory practices does not harm the religious expression rights of the CLS," said Alex J. Luchenitser, Americans United's senior litigation counsel. "The school's policy treats all student groups the same. If the Christian Legal Society chapter wishes to receive school financing, it must play by the same

rules that other state-funded groups do."

Last year, a federal district court disagreed with the evangelical Christian student group's arguments and upheld the school's right to enforce its nondiscrimination policy. The CLS has asked the 9th Circuit to reverse the lower court's ruling.

The AU brief was authored by attorneys Archis A. Parasharami, Lauren R. Randell and Evan M. Tager of the Washington, D.C., office of the global law firm of Mayer, Brown, Rowe & Maw LLP, under the supervision of Americans United attorneys Ayesha N. Khan, Richard B. Katskee and Luchenitser.