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Yeshiva University Pausing Clubs in Fight Over LGBTQ Group (1)

Sept. 16, 2022, 7:01 PMUpdated: Sept. 16, 2022, 8:23 PM

Yeshiva University has decided to temporarily suspend all undergraduate club activities after the US Supreme Court refused to step into a legal fight over recognition of a campus LGBTQ student group this week.

The school’s independent student newspaper, The Commentator, reported Friday that the university sent an email to undergraduate students that said considering the upcoming Jewish holidays “the university will hold off on all undergraduate club activities while it immediately takes steps to follow the road map provided by the US Supreme Court to protect YU’s religious freedom.”

The Supreme Court said in an unsigned opinion on Sept. 14 the New York school has other avenues for appeal it can pursue before the justices have to get involved. In a dissent joined by three fellow conservatives, Justice Samuel Alito predicted the university will ultimately prevail on the question of whether its religious rights are being violated by having to recognize YU Pride Alliance.

“At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us,” Alito said.

Yeshiva University President Rabbi Ari Berman said in a statement Friday that every faith-based university in the country has the right to work with its students, including its LGBTQ students, to establish the clubs, places and spaces that fit within its faith tradition.

“Yeshiva University simply seeks that same right of self-determination,” Berman said. “The Supreme Court has laid out the roadmap for us to find expedited relief and we will follow their instructions.”

Good Odds

Yeshiva listed dozens of clubs and organizations on its student activities webpage as of 2021. The dispute over YU Pride involves undergraduate students.

Katherine Rosenfeld, an attorney for the LGBTQ club YU Pride Alliance, likened the school’s decision Friday to cancel all club activities instead of recognizing one LGBTQ peer support group to Jackson, Mississippi decision 50 years ago to close public swimming pools instead of desegregating.

“The Pride Alliance seeks a safe space on campus, nothing more,” she said. “By shutting down all club activities, the YU administration attempts to divide the student body, and pit students against their LGBT peers. We are confident that YU students will see through this shameful tactic and stand together in community.”

Alito’s dissent assuring Yeshiva that it’s likely to win the case eventually may have emboldened the school to be aggressive in its fight against YU Pride.

Douglas Laycock, a University of Virginia Law professor and expert on the law of religious liberty, said most defendants find it too politically painful to close all clubs.

“We’ll see how much resistance they get from students, and whether they have the stomach to stamp out civil disobedience,” he said in an email. “But YU Pride’s claim is based on discrimination. No clubs, no discrimination.”

Laycock, who asked the court for permission to file a brief in support of Yeshiva, noted the LGBTQ club could still argue the school had a discriminatory motive in canceling all club activities.

Still, he thinks, Yeshiva is pretty confident it will win eventually.

(Updates with a response from the club's attorney and additional commentary.)

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com