Christian Legal Soc. v. Eck, CV-07-154-M-RFC.

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Citation: 625 F.Supp.2d 1026
• Docket Number: No. CV-07-154-M-RFC.,CV-07-154-M-RFC.
• Parties: CHRISTIAN LEGAL SOCIETY; Christian Legal Society Chapter at the University of Montana School of Law, a student organization at the University of Montana School of Law, on behalf of itself and its individual members, Plaintiffs, v. E. Edwin ECK, in his official capacity as Dean of the University of Montana School of Law; Margaret A. Tonon in her official capacity as Director for Student Affairs; and the Members of the Executive Board of the Student Bar Association of the University of Montana School of Law, Defendants.
• Decision Date: 19 May 2009

625 F.Supp.2d 1026 CHRISTIAN LEGAL SOCIETY; Christian Legal Society Chapter at the University of Montana School of Law, a student organization at the University of Montana School of Law, on behalf of itself and its individual members, Plaintiffs,
v.
E. Edwin ECK, in his official capacity as Dean of the University of Montana School of Law; Margaret A. Tonon in her official capacity as Director for Student Affairs; and the Members of the Executive Board of the Student Bar Association of the University of Montana School of Law, Defendants. No. CV-07-154-M-RFC. United States District Court, D. Montana, Missoula Division. May 19, 2009.

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COPYRIGHT MATERIAL OMITTED

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David A. French, Columbia, TN, Gregory S. Baylor, Isaac Fong, Michael Casey Mattox, Springfield, VA, Matthew G. Monforton,

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Mark A. Bryan Law Office, Bozeman, MT, for Plaintiffs.

Thomas G. Bowe, Montana Department of Justice, Helena, MT, David J. Aronofsky, Legal Counsel, Missoula, MT, for Defendants.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

RICHARD F. CEBULL, Chief Judge.

On November 11, 2008, United States Magistrate Judge Jeremiah Lynch entered his Findings and Recommendations in this case. Magistrate Judge Lynch recommends this Court (1) grant Defendant's converted Summary Judgment on Plaintiffs' sole claims of alleged violations of the First Amendment by Defendants and (2) deny Plaintiffs' Motion for Summary Judgment.

Upon service of a magistrate judge's findings and recommendation, a party has 10 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, Plaintiffs have filed objections to the Findings and Recommendation and Defendants have filed a response to those objections.

When a party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309, 1313 (9th Cir.1981).

After an extensive review of the record and applicable law and having determined de novo those parts of the magistrate judge's findings and recommendation to which Plaintiff has objected, this Court finds Magistrate Judge Lynch's Findings and Recommendation are well grounded in law and fact and adopts them in their entirety.

Accordingly, IT IS HEREBY ORDERED Defendants' converted Motion for Summary Judgment is GRANTED.

FACTUAL BACKGROUND¹

This case involves a religious student organization that is seeking to compel a public law school to fund and recognize their organization even though their membership selection requirements discriminate on the basis of religion and sexual orientation. Plaintiffs Christian Legal Society ("CLS") are challenging the Student Bar Association ("SBA") and the School of Law's decision to deny them SBA funding for the 2007-2008 academic year.²

As well stated by Magistrate Lynch, the crux of this First Amendment case is "the tension between a public law school's interest in enforcing its non-discriminatory policies and a religious student groups interest in exercising its constitutional rights of free speech, association and religious exercise."³

All law students at the University of Montana ("UM") School of Law pay mandatory student activity fees. Further, all law students are automatically members of the Student Bar Association ("SBA"). The SBA executive board is the exclusive official

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governing body of the SBA. The School of Law permits its students to form organizations. The SBA "retains the power to recognize and support independent organizations and associations of students in the School of Law and to allocate SBA funds for the use of such recognized groups."⁴

CLS meetings and other activities are open to all students regardless of race, religion, sexual orientation. However, to be a CLS voting member, a person must affirm the CLS Statement of Faith. Further CLS's "Resolution on the Statement of Faith and Sexual Morality standards" states that "unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership."⁵

The SBA's bylaws include an "open-membership" provision which requires all SBA organizations to be "open to all members of the School of Law" in order to recognized by the SBA as an "independent student organization eligible to receive SBA funds."⁶ As noted by Magistrate Lynch, this provision is read in conjunction with the SBA's non-discrimination provision which states in relevant part that "[s]tudents have the right to be free from discrimination, harassment, or intimidation based on actual or perceived; age, sex, nationality, creed, religion, color, race, sexual orientation, gender, identity and expression, disability, familial status, military service, or other purely arbitrary criteria."⁷

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) specifically gives courts the discretion to accept and consider extrinsic materials offered in connection with these motions, and to convert a motion to dismiss to one for summary judgment when a party has notice that the district court may look beyond the pleadings. See Portland Retail Druggists Ass'n v. Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981).

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

In considering a motion for summary judgment, the court must examine all of the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If the moving party does not bear the burden of proof at trial, he or she may discharge his burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the non-moving party's case." Celotex Corporation v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets the requirements of Rule 56 by showing there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Notice has been provided to the Parties that the

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court would look beyond the pleadings and convert the motion to dismiss to a motion for summary judgment.

DISCUSSION

The Court notes that Plaintiff Christian Legal Society has brought a strikingly similar, if not identical suit against the University of California, Hastings College of Law. Christian Legal Soc. Chapter of University of California v. Kane et. al., 2006 WL 997217 (N.D.Cal.2006). In that case, the Kane Court found in favor of Defendants and granted them summary judgment on all of CLS's claims. The case was appealed to the Ninth Circuit Court of Appeals. Since the issuance of Magistrate Lynch's Findings and Recommendation and Plaintiff's Objections, the Ninth Circuit has issued a memorandum affirming the district court's ruling. Kane, 319 Fed. Appx. 645 (9th Cir.2009).⁸ Many of the Plaintiffs' present arguments were also raised in Kane and as such, this Court will rely on Kane for its precedential value.

Magistrate Lynch noted that the UM School of Law had two policies in place at the time that Plaintiffs sought membership. The first policy was the SBA's provision "open-membership" provision which requires all SBA organizations to be "open to all members of the School of Law" in order to recognized by the SBA as an "independent student organization eligible to receive SBA funds."⁹ The second policy is the SBA's non-discrimination provision which states in relevant part that "[s]tudents have the right to be free from discrimination, harassment, or intimidation based on actual or perceived; age, sex, nationality, creed, religion, color, race, sexual orientation, gender, identity and expression, disability, familial status, military service, or other purely arbitrary criteria."¹⁰

Plaintiffs do not dispute that voting membership in CLS-UM requires affirmation of the Statement of Faith. Further a clear reading of the Statement of Faith and the Resolution on the Statement of Faith excludes voting membership to non-Christian students and students who engage in homosexual conduct.¹¹ The facts in this case are strikingly similar to Kane, 2006 WL 997217 (N.D.Cal.2006). There, the Kane Court found in favor of Defendants and concluded that the school did not violated Plaintiff CLS-Hastings right to free exercise of religion and free association when Hastings School of Law decided to deny CLS student organizational recognition for failure to adhere to the School's non-discrimination policy.

First, Plaintiffs object to Magistrate Lynch's decision to disregard Plaintiffs' claim that UM's budgetary process was discriminatory. It is clear that the

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Magistrate did find that the SBA's lack of specific criteria for allocating student activity fees did give rise to a colorable claim of viewpoint discrimination.¹² However, Magistrate Lynch correctly concluded that he did not have to reach that issue since Plaintiffs could not challenge the budgeting process in the first instance. This is because as a matter of law, Plaintiffs were ineligible for SBA funding.¹³

In concluding that Plaintiffs were ineligible for SBA funding, Magistrate Lynch correctly found that CLS violated the law school's policies regarding open membership and non-discrimination. As noted above, Plaintiffs'...