Truth v. Kent School District ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUTH, an unincorporated 
association; SARICE UNDIS, a
minor, by and through her father,
LARRY UNDIS; JULIANNE STEWART, a
minor, by and through her parents,
No. 04-35876
PAUL and ANNA STEWART,
Plaintiffs-Appellants, D.C. No.
CV-03-00785-MJP
v.
 AMENDING
KENT SCHOOL DISTRICT; BARBARA
OPINION ONLY
GROHE, Superintendent of Kent
TO INCLUDE
School District; MIKE ALBRECHT,
CONCURRENCE
Principal of Kentridge High
School; ERIC ANDERSON, Assistant
Principal of Kentridge High
School, in their official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
July 27, 2006—Seattle, Washington
Filed April 25, 2008
Amended September 9, 2008
Before: J. Clifford Wallace, Kim McLane Wardlaw, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Wallace;
Concurrence by Judge Fisher
12441
TRUTH v. KENT SCHOOL DISTRICT 12445
COUNSEL
Nathan W. Kellum, Alliance Defense Fund, Memphis, Ten-
nessee, for the plaintiffs-appellants.
Michael B. Tierney, Mercer Island, Washington, for the
defendants-appellees.
Jane M. Whicher, Port Townsend, Washington, for amicus
American Civil Liberties Union.
12446 TRUTH v. KENT SCHOOL DISTRICT
Sara J. Rose, Washington, D.C., for amicus Americans United
for Separation of Church and State.
David F. McDowell, Los Angeles, California, for amicus
Anti-Defamation League.
ORDER
The opinion filed on April 25, 2008 in the above-captioned
case is amended only to include the concurrence filed this
date.
Appellant’s Petition for Rehearing En Banc is still pending.
OPINION
WALLACE, Circuit Judge:
Appellants Truth, Sarice Undis, and Julianne Stewart (col-
lectively, Truth) appeal from a summary judgment in favor of
the Kent School District and other appellees (collectively,
District). Truth alleges violations of the Equal Access Act (the
Act), the First Amendment rights of free speech and expres-
sive association, the Free Exercise Clause, the Establishment
Clause, and the Equal Protection Clause. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We reverse and remand.
I.
This appeal arises from Truth’s attempt to form a student
club at Kentridge High School (Kentridge), which is part of
the Kent School District. Under the relevant policies at Ken-
tridge, “[u]nchartered clubs are not permitted to exist.” To
obtain a charter, students must submit a proposed charter to
the Associated Student Body (ASB) Council and secure
approval.
TRUTH v. KENT SCHOOL DISTRICT 12447
Beginning in the fall semester of 2001, appellants Undis,
then a junior, and Stewart, then a sophomore, attempted to
form a Bible club at Kentridge. Undis and Stewart submitted
a “Club Charter Application” (first charter) for official recog-
nition as an ASB organization in September 2001. This first
charter indicated that the club’s name was to be “Truth” and
that the purpose of the organization was to “have a Bible
study to encourage and help become better people with good
morals.” Under the section “Membership Criteria,” the first
charter indicated that the group was to be “[o]pen to anyone.”
The charter also proposed that it would designate a “quote of
the week for announcement” and “once a month decorate
[the] school with a theme.”
The ASB Council discussed Truth’s first charter at a Sep-
tember 2001 meeting, and several students objected to char-
tering Truth. The ASB Council decided to consult with the
Assistant Principal, appellee Eric Anderson. Anderson and
appellee Mike Albrecht, Principal of Kentridge, later told
Undis that they would speak with the school’s attorney
regarding the legality of granting Truth ASB recognition.
Albrecht stated that “the problem with the September 2001
proposal was that it involved broadcasting a weekly Bible
quote over the school’s public address system and monthly
decoration of the school in a biblical theme.”
No action was taken on the first charter for the remainder
of the 2001-02 school year. During that time, Undis asked
Anderson to make a decision on Truth’s application on at
least ten occasions, to no avail. Sometime in the spring semes-
ter of 2002, all ASB clubs were instructed to resubmit their
charters. The record does not reveal any further activity on
Truth’s application during the summer and fall semesters of
2002.
During this period, we decided Prince v. Jacoby, which
involved a request by a Bible club for ASB recognition in a
different Washington school district. 303 F.3d 1074 (9th Cir.
12448 TRUTH v. KENT SCHOOL DISTRICT
2002). On January 7, 2003, an attorney for Truth, Robert
Tyler, wrote to Albrecht stating that it was “constitutionally
imperative that [Kentridge] grant [appellants’] proposed Bible
Club treatment and rights equal to all other noncurriculum
clubs.” The letter also insisted that Kentridge “immediately
adhere to the requirements of the Equal Access Act and the
First Amendment,” and threatened litigation if Kentridge did
not comply.
On January 30, 2003, Tyler sent a second letter to Michael
Harrington, counsel for the Kent School District. Tyler
requested the forms required to establish an ASB club, and
threatened litigation if Truth’s charter was not approved by
February 4.
On February 2, as requested by Anderson, Undis and Stew-
art submitted a new application (second charter). The second
charter removed the quote-of-the-week and monthly theme
decoration provisions of the first charter. The club’s stated
purpose was now to “provid[e] a biblically-based club for
those students interested in growing in their relationship with
Jesus Christ.” Although membership would be open to all stu-
dents, the second charter restricted voting membership to
“members professing belief in the Bible and in Jesus Christ.”
Officers would also be required to “believe in and be commit-
ted to biblical principles.”
After a third letter to Harrington from Tyler, the second
charter was discussed at an ASB Council meeting on March
27. Some students expressed disapproval of the club’s name,
suggesting that it “implies that every other religion at Ken-
tridge is a lie.” Some council members also expressed con-
cerns that granting the charter would violate “[c]hurch and
state” and that the voting membership should be open to
everyone. Additionally, members suggested that students
could go to “Young Life,” a non-ASB recognized organiza-
tion that met on Kentridge’s campus after school hours. The
minutes of the March 27 meeting reveal that the question of
TRUTH v. KENT SCHOOL DISTRICT 12449
whether to approve the second charter was discussed for
twenty minutes. No vote was taken.
The second charter was next addressed at an ASB Council
meeting on April 1. After a brief clarification on the role of
the advisor for the club, the minutes show that Anderson
stated that if the ASB Council voted to approve the charter,
he would consult the District’s attorneys and Kentridge would
make a final decision on approving the charter. The Counsel
voted eleven to six against approval of Truth’s second charter.
On April 3, Truth filed a complaint in the United States
District Court for the Western District of Washington, alleg-
ing that defendants had violated the Act, as well as the First
Amendment rights of free speech and expressive association,
the Free Exercise Clause, the Establishment Clause, and the
Equal Protection Clause. Truth sought injunctive and declara-
tory relief as well as nominal damages.
On April 9, Anderson sent Stewart a letter informing her of
her right to resubmit Truth’s application for ASB club recog-
nition: “As was discussed at the ASB meeting on March 28th,
by making minor changes to Article[s] I and III of the pro-
posed Constitution for your club, you will address the points
raised.” Article I sets forth the name of the club and Article
III contains the voting membership and officer restrictions.
Anderson advised Stewart to “be prepared to resubmit by the
April 25th ASB Meeting.” Under the Kentridge ASB Consti-
tution, “[a]ny rejected charters must be resubmitted within
two weeks of rejection with the required changes made or the
charter shall be permanently rejected.”
Stewart and Undis submitted the third charter on April 24.
The third charter maintains the proposed name “Truth.” How-
ever, it divides the membership into three categories: voting
members, non-voting members, and attendees. Meetings are
open to everyone. But the “privilege of membership is contin-
gent upon the member complying in good faith with Christian
12450 TRUTH v. KENT SCHOOL DISTRICT
character, Christian speech, Christian behavior and Christian
conduct as generally described in the Bible.” The charter
application also lists a “true desire to . . . grow in a relation-
ship with Jesus Christ” under the “Membership Criteria”
heading. In order to be a voting member or officer, students
are required to sign a “statement of faith.” The statement of
faith requires the person to affirm that he or she believes “the
Bible to be the inspired, the only infallible, authoritative
Word of God.” A voting member must also pledge that he or
she believes “that salvation is an undeserved gift from God,”
and that only by “acceptance of Jesus Christ as my personal
Savior, through His death on the cross for my sins, is my faith
made real.” Other than the ability to call oneself a “member,”
there is no difference between the rights of non-voting mem-
bers and attendees.
The third charter was discussed at the April 25 ASB Coun-
cil meeting. The ASB Council again objected to the name,
selectivity provisions, and the presence of religion in school.
The council voted nineteen to zero to deny approval of the
charter, with one member undecided. The minutes give four
reasons why the charter was not accepted: 1) “Name,”
2) “Pledge to vote,” 3) “Segregating,” 4) “Religious club in
school.”
On May 6, Tyler wrote to the Kent School District’s coun-
sel stating that it was his “understanding from the ASB Con-
stitution that this rejection by the ASB is the final decision.”
The letter also provided that Tyler “was unable to locate any
rights to appeal the decision of the ASB,” but that if there
were “a right to appeal the decision of the ASB,” he asked
that the letter “serve as a formal request for appeal.”
Anderson advised Undis and Stewart in a May 12 letter
“that pursuant to Kent School District Policy 2340, [they had]
the ability to discuss this matter with Mr. Albrecht,” and men-
tioned the possibility of discussions with the District superin-
tendent or the ombudservices office. Although Tyler’s May 6
TRUTH v. KENT SCHOOL DISTRICT 12451
letter would appear to have invoked these processes, no fur-
ther action was taken by the District. Policy 2340 concerns
“religious related activities or practices.” The policy does not
refer to ASB recognition, and the ASB Constitution does not
refer to this policy as providing an avenue for an appeal of the
District’s decisions, which are otherwise “final.”
Although Undis and Stewart have both graduated from
Kentridge, they have indicated that another student, Lindsay
Thomas, is prepared to assume leadership of the club if the
charter is approved.
The Kent School District has three policies relevant to this
appeal. First, Policy 3210 provides that “[t]he district will
provide equal educational opportunity and treatment for all
students in all aspects of the academic and activities program.
Equal opportunity and treatment is provided without regard to
race, creed, color, national origin, sex, marital status, previous
arrest . . . , incarceration, or physical, sensory or mental dis-
abilities.” The district court held that inclusion of “creed”
indicates that discrimination based upon religion is prohibited.
That ruling has not been challenged on appeal.
Second, Policy 2153 provides for “noncurriculum-related,
non ASB student groups,” which groups the principal shall
approve provided they meet several additional requirements,
such as that they do not disrupt the school environment.
While Policy 2153 groups may meet on school grounds
before or after school, these groups do not receive other bene-
fits accorded only to ASB-sponsored student clubs. Most sig-
nificantly, only ASB-chartered groups may receive ASB
funding and engage in purchasing through the Kent School
District Finance Department. Each ASB club is provided with
a faculty advisor or adult advisor designee, who must be pres-
ent at all club meetings and assists in the planning and han-
dling of the club’s affairs. ASB clubs are also allowed to
conduct meetings during noninstructional time, advertise their
activities in school, use the public address system, and are
12452 TRUTH v. KENT SCHOOL DISTRICT
recognized in the school yearbook. The District states that
Truth “is free to operate as a private Policy 2153 group,” but
argues that Truth was properly denied ASB recognition.
Third, Policy 2340P regulates “religious related activities
or practices,” and provides guidelines for schools addressing
religious holidays, symbols, ceremonies, topics, activities, and
beliefs. This policy also provides that “[s]tudents, parents, and
employees who are aggrieved by practices or activities con-
ducted in the school or district may seek resolution of their
concern first with the building principal, then with the district
superintendent or designee, or use ombudservices, which is
available through the Legal Services Department.”
Washington State also has a relevant non-discrimination
law, which the District relies on to justify its denial of ASB
recognition for Truth. In 2003, Washington Revised Code
§ 49.60.215 (West 2006) provided that:
It shall be an unfair practice for any person or the
person’s agent or employee to commit an act which
directly or indirectly results in any distinction,
restriction, or discrimination, . . . or the refusing or
withholding from any person the admission, patron-
age, custom, presence, frequenting, dwelling, stay-
ing, or lodging in any place of public resort,
accommodation, assemblage, or amusement, except
for conditions and limitations established by law and
applicable to all persons, regardless of race, creed,
color, national origin, sexual orientation, sex, the
presence of any sensory, mental, or physical disabil-
ity, or the use of a trained dog guide or service ani-
mal by a disabled person.
The District has argued that these non-discrimination policies
require it to deny ASB recognition to Truth.
As of April 3, 2003, there were thirty ASB-recognized
clubs at Kentridge. While the record does not contain the
TRUTH v. KENT SCHOOL DISTRICT 12453
charters of all the clubs, it appears that many of them have
selective membership criteria. Indeed, each charter applica-
tion contains a section for “Membership Criteria.”
The EarthCorps, for example, requires members to show
“interest and dedication toward environmental issues.” Simi-
larly, the Key Club requires that members be “interested in
service, qualified scholastically, of good character, possessing
leadership potential . . . [and] willing to perform at least fifty
hours of . . . service.” The Gay-Straight Alliance requires that
students “must be willing to work towards the goals of the
club” to be members. These goals include “bring[ing]
GLBTQ [Gay, Lesbian, Bisexual, Transgendered, and Ques-
tioning] issues into the open, while working to decrease
homophobia.” Other goals include “changing stereotypes”
and “fight[ing] heterosexism and other forms of oppression.”
The National Honor Society selects its members based on
“outstanding scholarship, character, leadership, and service,”
and requires them to “behave in a courteous and respectful
manner, refraining from language and actions that might bring
discredit upon themselves.” It also requires members to
refrain from using or possessing alcohol or illegal substances.
Participation in school sports requires maintaining a certain
grade point average and attendance record, not using drugs or
alcohol, and complying with the “sports code.” Finally, a
Men’s Honor Club and a Girl’s Honor Club also operate at
Kentridge as ASB-recognized groups. Each club has gender-
exclusive membership.
The district court entered summary judgment on all of
Truth’s claims under Monell v. Department of Social Services,
436 U.S. 658 (1978), with the exception of the Act claim. The
court held that the requirements of municipal liability under
42 U.S.C. § 1983 were not satisfied, and therefore entered
summary judgment in favor of the District. It also held that
the actions against the individual defendants in their official
capacities were functionally equivalent to suits directly
12454 TRUTH v. KENT SCHOOL DISTRICT
against the municipality, and therefore Truth’s claims against
them failed.
The district court ruled on the merits of the Act and some
of the First Amendment claims, addressing the latter as an
alternate holding if its Monell ruling were to be reversed. It
held that the restrictions on general membership in the third
charter constituted a legitimate basis for denying the third
charter and that these claims therefore failed.
The district court did not rule on the remaining claims
based on its belief that “Plaintiffs’ cursory Equal Protection
Clause, Establishment Clause, and Free Exercise Clause argu-
ments are all subsumed within their First Amendment argu-
ment.” The district court also did not address the District’s
argument that granting ASB recognition to Truth would vio-
late the Establishment Clause.
On appeal, both sides agree that only the third charter is
before us. Truth makes this concession even though this
action was filed before the third charter and its complaint only
addresses the denial of its second charter.
This appeal requires us to review many determinations by
the district court. As to each issue, we review de novo. We
review a district court’s summary judgment de novo. See
Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). In deter-
mining whether summary judgment was appropriate, we view
the evidence in the light most favorable to Truth, the non-
moving party. See Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004). “We may affirm on any ground sup-
ported by the record.” Id. We also review de novo the district
court’s Monell rulings, see Doe v. Lebbos, 348 F.3d 820, 825
(9th Cir. 2003), its “decision regarding the scope of a consti-
tutional right,” see United States v. Napier, 436 F.3d 1133,
1135-36 (9th Cir. 2006), and its interpretation of the Act, see
SEC v. McCarthy, 322 F.3d 650, 654 (9th Cir. 2003).
TRUTH v. KENT SCHOOL DISTRICT 12455
II.
Before addressing the merits, we consider our jurisdiction.
The District argues that Truth lacks standing under City of Los
Angeles v. Lyons, 461 U.S. 95 (1983), because Truth has
failed to meet the “likelihood of recurrence” requirement. The
District asserts that Truth “cannot say the ASB or the District
will always deny another Club application or even the same
application.”
[1] In order to establish Article III standing,
a plaintiff must show (1) it has suffered an “injury in
fact” that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 180-81 (2000). Although the District has not made
any arguments regarding these specific factors, we have an
independent obligation to address whether we have subject-
matter jurisdiction. See Dittman v. California, 191 F.3d 1020,
1025 (9th Cir. 1999). “[A]t the summary judgment stage the
plaintiffs need not establish that they in fact have standing,
but only that there is a genuine question of material fact as to
the standing elements.” Cent. Delta Water Agency v. United
States, 306 F.3d 938, 947 (9th Cir. 2002).
[2] With respect to injunctive relief, the Supreme Court has
also required that a plaintiff show that “he is realistically
threatened by a repetition of [the violation].” Lyons, 461 U.S.
at 109. “The plaintiff need only establish that there is a rea-
sonable expectation that his conduct will recur, triggering the
alleged harm; he need not show that such recurrence is proba-
ble.” Jones v. City of Los Angeles, 444 F.3d 1118, 1127 (9th
12456 TRUTH v. KENT SCHOOL DISTRICT
Cir. 2006), citing Honig v. Doe, 484 U.S. 305, 318 & n.6
(1988). While we have extended this requirement to declara-
tory relief, see Gest v. Bradbury, 443 F.3d 1177, 1181 (9th
Cir. 2006), it does not apply to monetary damages, see Lyons,
461 U.S. at 105. The District’s standing argument therefore
does not implicate Truth’s standing to seek nominal damages.
The District asserts that the Establishment Clause, state
law, and its own non-discrimination policies mandate that it
deny ASB recognition to Truth. If the District believes that
three independent and binding legal authorities compel it to
deny Truth’s application, we do not see how the District
might approve the same or a similar charter request in the
future.
[3] The District’s written non-discrimination policies also
support Truth’s standing arguments. We have held that plain-
tiffs “may demonstrate that an injury is likely to recur by
showing that the defendant had . . . a written policy, and that
the injury ‘stems from’ that policy. Where the harm alleged
is directly traceable to a written policy there is an implicit
likelihood of its repetition in the immediate future.” Fortyune
v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.
2004) (internal quotations and alterations omitted). Here, the
harm is traceable to the District’s policies, which the District
has argued compel it to deny ASB recognition to Truth.
Additionally, despite Tyler’s request that the District treat
his letter as a “formal request for appeal,” the District took no
action. This is evidence that another charter request is likely
to meet the same fate as the previous three. Finally, the Dis-
trict has provided nothing beyond its own speculation that the
outcome might be different if Truth submitted a fourth char-
ter. The legal positions it has taken in this litigation strongly
suggest that no similar applications will ever be approved.
[4] Under these circumstances, we conclude that Truth has
established at least a genuine issue of material fact as to
TRUTH v. KENT SCHOOL DISTRICT 12457
whether there is a reasonable expectation that the alleged
injury will recur. Therefore, Truth has standing to seek each
of its requested forms of relief.
The District also suggests that this dispute is not ripe for
review, and that we thus lack jurisdiction, because Truth did
not bring the dispute to the Kent School District Board or
Superintendent through Policy 2340P. The District is wrong.
The Supreme Court has explicitly held that exhaustion is not
required for claims brought under 42 U.S.C. § 1983. See Stef-
fel v. Thompson, 415 U.S. 452, 472-73 (1974). Exhaustion
cannot be dispositive under a ripeness analysis; otherwise
ripeness doctrine would impose a de facto exhaustion require-
ment, in violation of Steffel. Thus, the alleged failure to
exhaust administrative remedies may be at most only a factor
in the ripeness analysis.
[5] Nevertheless, it appears that Truth did exhaust the for-
mal appeal system. Tyler’s May 6 letter to the District’s coun-
sel asked that the letter “serve as a formal request for appeal.”
The District has not provided any reason why this notification
was not sufficient to trigger its appeals process, and no reason
is apparent in the record. The District’s failure to take any
action as a result of this request does not indicate that Truth
failed to bring the matter to the attention of the District. Under
these circumstances, there is at least a genuine issue of mate-
rial fact as to whether Truth exhausted the District’s grievance
procedures.
Nearly every other factor suggests that this case is ripe for
decision. Under the Kentridge ASB Constitution, “[a]ny
rejected charters must be resubmitted within two weeks of
rejection with the required changes made or the charter shall
be permanently rejected.” The ASB Constitution neither pro-
vides for any additional review, nor suggests that the ASB
Council’s decision lacked finality.
Furthermore, there is no doubt that the effects of the denial
of Truth’s charter have been felt in a concrete way by the
12458 TRUTH v. KENT SCHOOL DISTRICT
appellants. Truth’s members have experienced three denials
of their applications, as well as protracted delays in obtaining
any action from the ASB Council and District. The harm that
Truth has complained of does not “rest[ ] upon contingent
future events” or ones that “may not occur at all.” Texas v.
United States, 523 U.S. 296, 300 (1998) (internal quotation
omitted). Instead, Truth complains of discrete events that have
already occurred.
[6] Finally, “in evaluating ripeness, courts assess both the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.” Ass’n of Am.
Med. Colls. v. United States, 217 F.3d 770, 779-80 (9th Cir.
2000) (internal quotation omitted). We conclude the hardship
to Truth in denying adjudication outweighs the hardship to the
District in deciding this appeal. Truth’s application for ASB
recognition languished for nearly sixteen months without any
significant action being taken, and the ASB process appears
to have stalled until Truth obtained counsel and threatened to
sue. More than five years have passed since the submission of
the first charter, and declining to decide this appeal now
would present a significant hardship to appellants.
[7] By contrast, the hardship to the District is significantly
less severe. The District has been aware of Truth’s arguments
for a long time and has had ample opportunity to take correc-
tive action or change its policies, if it so desired. Its legal
positions on appeal show that it does not believe any remedial
action is appropriate and that it believes the denial of ASB
recognition was proper. We therefore conclude that this case
is ripe for decision.
III.
[8] We must also consider the district court’s ruling that the
requirements of Monell are not met. Monell permits section
1983 actions against municipalities, but requires plaintiffs to
show that their injuries resulted from “execution of a govern-
TRUTH v. KENT SCHOOL DISTRICT 12459
ment’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy.” 436 U.S. at 694. Monell’s requirements do
not apply where the plaintiffs only seek prospective relief,
which is the case here. See Chaloux v. Killeen, 886 F.2d 247,
250-51 (9th Cir. 1989). The District acknowledges the con-
trolling effect of Chaloux, but argues that it should be over-
ruled because it “rests on shaky grounds.”
[9] It is well established in our circuit that while
a three judge panel normally cannot overrule a deci-
sion of a prior panel on a controlling question of law,
we may overrule prior circuit authority without tak-
ing the case en banc when an intervening Supreme
Court decision undermines an existing precedent of
the Ninth Circuit, and both cases are closely on
point.
Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th
Cir. 2002) (internal citation and quotations omitted). The Dis-
trict argues that two Supreme Court cases, Board of County
Commissioners of Bryan County v. Brown, 520 U.S. 397(1997), and McMillian v. Monroe County, 520 U.S. 781(1997), show that the “Supreme Court has re-emphasized the
importance and vitality of the doctrine that requires a munici-
pal policy as a precondition to a lawsuit under § 1983.” Nei-
ther of these cases addresses whether Monell applies to
actions only seeking prospective relief. We have no authority
to overrule Chaloux. Chaloux applies, and the district court’s
Monell ruling is reversed.
IV.
Relying on its non-discrimination policies, the District
points to three aspects of Truth’s third charter that justify its
decision to deny the club ASB recognition: 1) the general
membership restrictions, 2) the leadership and voting mem-
12460 TRUTH v. KENT SCHOOL DISTRICT
bership restrictions, and 3) the name “Truth.” The district
court granted summary judgment based only on the first justi-
fication, and explicitly declined to reach the other two.
Accordingly, we too limit our analysis to the general member-
ship restrictions. So long as the District had at least one per-
missible basis for rejecting Truth’s charter, the district court
properly granted summary judgment, and we need not address
the District’s remaining justifications.
We begin our analysis by considering whether the District
violated the Act. If we determine that it did not, we then move
on to consider whether the District’s actions ran afoul of the
First Amendment. See Prince v. Jacoby, 303 F.3d 1074, 1077
(9th Cir. 2002) (“We consider each of Prince’s access claims
separately, first under the Act, and then the First Amendment,
to the extent we find them outside the scope of the Act”).
A.
[10] States have the constitutional authority to enact legis-
lation prohibiting invidious discrimination. See Roberts v.
United States Jaycees, 468 U.S. 609, 624-26 (1984) (review-
ing the history of state anti-discrimination laws and observing
that a “State enjoys broad authority to create rights of public
access on behalf of its citizens”). Truth asserts that it does not
discriminate based on religion in violation of the plain lan-
guage of the District’s policies, but rather imposes a code of
conduct not unlike those of other approved ASB clubs. Even
assuming that non-Christians would be able to comply with
Truth’s view of “Christian character, Christian speech, Chris-
tian behavior and Christian conduct,” we hold that the
requirement that members possess a “true desire to . . . grow
in a relationship with Jesus Christ” inherently excludes non-
Christians.
[11] Having determined that the third charter violates the
District’s non-discrimination policies, we are led to hold that
the District’s denial of ASB recognition on this account
TRUTH v. KENT SCHOOL DISTRICT 12461
would be consistent with the Act. The Act requires federally-
funded schools that have created a limited open forum to
grant religious clubs benefits and privileges afforded to all
other non-curriculum clubs. See Bd. of Educ. of the Westside
Cmty. Schs. v. Mergens, 496 U.S. 226, 235-36 (1990); Prince,
303 F.3d at 1081 (“[T]he term ‘equal access’ means what the
Supreme Court said in Widmar [v. Vincent, 454 U.S. 263,
267-71 (1981)]: religiously-oriented student activities must be
allowed under the same terms and conditions as other extra-
curricular activities . . .”). Prince held that the rights protected
under the Act include equal access to some of the benefits
associated with ASB status, including ASB funding and pub-
lic communication techniques. 303 F.3d at 1084-90. The Dis-
trict does not argue that it is not required under the Act to
provide equal access to the ASB program.
In interpreting the Act, we begin with its plain language.
“Where the intent of Congress has been expressed in reason-
ably plain terms, that language must ordinarily be regarded as
conclusive.” Id. at 1079 (internal quotations and citation omit-
ted). Where there may be uncertainty, however, we rely on
the Supreme Court’s direction that the Act is to be “inter-
preted broadly,” Mergens, 496 U.S. at 239, as well as cases
deciding analogous issues under the First Amendment. Cf.
Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 855-
56 (2d Cir. 1996) (adopting similar approach).
[12] By its plain terms, the Act prevents only denials of
access or fair opportunity or discrimination “on the basis of
the religious, political, philosophical, or other content of the
speech at [a club’s] meetings.” 20 U.S.C. § 4071(a). There-
fore, once it is established that the secondary school receives
federal funds and has created a limited open forum, the club
must demonstrate two additional elements to prevail: 1) a
denial of equal access, or fair opportunity, or discrimination;
2) that is based on the “content of the speech” at its meetings.
12462 TRUTH v. KENT SCHOOL DISTRICT
[13] The District denied Truth ASB status, at least in part,
based on its discriminatory membership criteria, not the reli-
gious “content of the speech.”1 The Act does not define “con-
tent of the speech,” but that phrase has a particular meaning
in First Amendment jurisprudence. We have held that
“whether a statute is content neutral or content based is some-
thing that can be determined on the face of it; if the statute
describes speech by content then it is content based.” Menotti
v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) (quota-
tions and citation omitted). Similarly, a “restriction on expres-
sive activity is content-neutral if it is . . . based on a non-
pretextual reason divorced from the content of the message
attempted to be conveyed.” Id. (quotations and citation omit-
ted).
The Act, through which Congress extended the reasoning
of the Supreme Court’s 1981 decision in Widmar v. Vincent
to secondary schools, see Mergens, 496 U.S. at 235, tracks
Widmar’s emphasis on discrimination based on the content of
the plaintiff’s speech. Widmar struck down a state universi-
ty’s regulation prohibiting the use of university buildings or
grounds “for purposes of religious worship or religious teach-
ing.” 454 U.S. 263, 265 (1981). Widmar thus precluded a uni-
versity’s “discriminatory exclusion from a public forum based
on the religious content of a group’s intended speech,” id. at
269-70, but not its “right to exclude . . . First Amendment
activities that violate reasonable campus rules.” Id. at 277.
Likewise, the Act prevents a school’s unreasonable limitation
on the conduct of a club to the extent the limitation is justified
with reference to the expressive content of the regulated con-
duct. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791
1
Although the District gave several reasons for denying Truth’s charter,
some of which appear to have been based on the content of Truth’s
speech, the district court based its analysis only on the group’s discrimina-
tory membership policies. Therefore, we too limit our analysis to this issue
when determining whether the district court’s summary judgment was
appropriate.
TRUTH v. KENT SCHOOL DISTRICT 12463
(1989) (“Government regulation of expressive activity is con-
tent neutral so long as it is justified without reference to the
content of the regulated speech” (internal quotations and cita-
tion omitted)).
[14] Congress could have written the Act to protect reli-
gious clubs against a burden on their speech or activities, but
did not. For example, when Congress passed the Religious
Land Use and Institutionalized Persons Act, it not only pro-
hibited discrimination against religious groups as such but
also limited governments’ abilities to impose even neutral,
nondiscriminatory policies against them:
No government shall impose or implement a land
use regulation in a manner that imposes a substantial
burden on the religious exercise of a person, includ-
ing a religious assembly or institution, unless the
government demonstrates that imposition of the bur-
den on that person, assembly, or institution—
(A) is in furtherance of a compelling gov-
ernmental interest; and
(B) is the least restrictive means of further-
ing that compelling governmental interest.
42 U.S.C. § 2000cc(a)(1). Thus, Congress knows how to draft
a statute placing otherwise content-neutral laws of general
applicability that incidentally burden a First Amendment
activity under the same judicial scrutiny as laws specifically
targeting the religious content of a group’s expression. See
Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456
F.3d 978, 985-86 (9th Cir. 2006). That is not the case here.
The Act clearly allows exclusions that are not “content”-
based.
[15] The Act’s legislative history strengthens our conclu-
sion that it prohibits only content-based restrictions on reli-
12464 TRUTH v. KENT SCHOOL DISTRICT
gious groups. The legislative history focuses on Congress’s
intent to end school districts’ previous practices of treating
religious groups inequitably and forbidding them from meet-
ing on campus. See S. Rep. 98-357, at 6, 1984 U.S.C.C.A.N.
2348, 2352 (1984) (“Despite Widmar, many school adminis-
trators across the country are prohibiting voluntary, student-
initiated religious speech as an [e]xtracurricular activity”); id.
at 15, 1984 U.S.C.C.A.N. at 2361 (“[S]chool authorities
across the country are banishing religious clubs from campus
or placing such onerous restrictions on them that meetings
become almost impossible”). The Senate Report recognized
the possibility that religious groups like Truth might claim
that content-neutral policies regulating club membership vio-
late the Act, and disclaimed any such intent:
At the same time, the guarantee of equal access does
not require special treatment for religious groups.
Religious groups are accorded only the same rights
and privileges as are granted to other student groups.
In practice, however, this means that not all student
groups would receive exactly the same privileges.
There could be many neutral and impartial time,
place, and manner restrictions placed on the use of
school facilities which might produce situations in
which some voluntary groups would not receive pre-
cisely the same access received by others. . . . The
access determination could not be made, however,
on the basis that the nature of the activity was reli-
gious.
Id. at 39, 1984 U.S.C.C.A.N. at 2385. The District’s non-
discrimination policies are not time, place or manner restric-
tions. But like such restrictions, the policies are content-
neutral. This strongly suggests that Congress did not intend
the Act to apply to non-discrimination policies.
[16] The parties do not dispute that the Kent School District
receives federal funding, or that Kentridge has created a lim-
TRUTH v. KENT SCHOOL DISTRICT 12465
ited open forum for extracurricular student groups. The Dis-
trict contests, however, whether the Act’s guarantee of equal
access, fair opportunity, and non-discrimination protects
Truth’s freedom to exclude those who do not share Christian
values from its general membership. On their face, the Dis-
trict’s non-discrimination policies do not preclude or discrimi-
nate against religious speech. Truth also has not shown that
the District justifies its non-discrimination policies with refer-
ence to the content of a message Truth’s discriminatory con-
duct may attempt to convey. The policies are content-neutral.
Therefore, to the extent they proscribe Truth’s discriminatory
general membership restrictions, the policies do not implicate
any rights that Truth might enjoy under the Act. Cf. Rumsfeld
v. Forum for Academic & Institutional Rights, Inc., 547 U.S.
47, 60 (2006) (holding that a statute or regulation that condi-
tions government benefits on a non-discriminatory campus
access policy is properly categorized as conduct, not speech).
Our decision is not inconsistent with that of the Second Cir-
cuit, which has focused on the term “speech” in the Act rather
than the content-neutrality (or lack thereof) of school policies.
See Hsu, 85 F.3d at 856 (rejecting argument that Act was not
implicated because “the School did not base its qualified rec-
ognition of the Club on what would be said at the Club meet-
ings, but on what could be characterized as the Club’s ‘act’
of excluding non-Christians from leadership”); id. at 859 (Act
triggered “when an after-school religious club excludes peo-
ple of other religions from conducting its meetings . . . to pro-
tect the expressive content of the meetings”). The court’s
decision in Hsu is readily distinguishable from the case at
hand. In Hsu, a Christian group was seeking to impose a reli-
gious test for all of its leadership positions. Id. at 849. The
court held that the group’s ability to exclude non-Christians
from some, but not all, of these leadership positions consti-
tuted “speech” within the meaning of the Act. Id. at 858. In
contrast, we are only concerned with Truth’s general mem-
bership requirements. The Second Circuit’s decision in Hsu
directly supports our holding with respect to these require-
12466 TRUTH v. KENT SCHOOL DISTRICT
ments. The court held that “a religious test for membership or
attendance” would be “plainly insupportable,” since “[i]t is
difficult to understand how allowing non-Christians to attend
the meetings and sing (or listen to) Christian prayers would
change the Club’s speech.” Id. at 858 & n.17.
[17] In short, Truth has not shown that the District’s non-
discrimination policy restricts ASB status on the basis of reli-
gion or the religious content of speech. Truth also argues,
however, that the District violated the Act by allowing certain
groups an exemption from the non-discrimination policy. Here
we understand Truth to be challenging an allegedly arbitrary
or discriminatory practice of granting waivers to non-religious
groups, but not religious groups. This challenge is different in
kind from one asserting that the application of the non-
discrimination policy to Truth violates Truth’s rights under
the Act. If indeed the District has a policy of enforcing the
non-discrimination policy only against religious groups, this
policy would of course violate the Act. Many of the so-called
‘exemptions’ that Truth contests are in fact consistent with the
District’s non-discrimination policy. For example, several
clubs, such as the EarthCorps and the Gay-Straight Alliance,
require their members to support a specific political cause, but
nothing in the District’s non-discrimination policy prohibits
discrimination on the basis of political belief. However, at
least two groups, the Men’s Honor Club and the Girl’s Honor
Club, were granted ASB recognition even though their mem-
bership is based on gender, a protected ground under the Dis-
trict’s policy. There is no evidence in the record as to why
these groups were allowed apparent waivers from the Dis-
trict’s non-discrimination policy. Thus, to the extent Truth
alleges that the District provided waivers to these groups
while denying them to others, and that decision was made on
the basis of religion or the religious content of speech, Truth
has raised a triable issue of fact.2 Therefore, we reverse the
2
Although Truth has raised a triable issue of fact, we call attention to
two potential problems with its argument. First, Congress has specifically
TRUTH v. KENT SCHOOL DISTRICT 12467
district court’s summary judgment and remand for further
proceedings on this limited issue.
B.
[18] We next address whether, and if so how, the First
Amendment may apply where a school denies ASB recogni-
tion to a student club based on its membership criteria. As an
initial matter, it is important to emphasize that the members
of Truth are not seeking merely to associate as a group; they
are seeking to associate as a school-sponsored group. Specifi-
cally, ASB recognition would give Truth access to ASB
funds, additional access to the school’s property and facilities,
and special rights to post materials around the school. There-
fore, we must evaluate the District’s denial of ASB recogni-
tion as a restriction on a “limited public forum.” See
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 829 (1995) (applying limited public forum analysis to
religious group’s request for student activities funds); see also
Prince, 303 F.3d at 1091 (holding that a school, through its
ASB program, “created a limited public forum”).
The limited public forum framework “has been the source
of much confusion” and the precise contours of the term
allowed for “separate but equal” gender discrimination in the context of
school and youth activities. See 20 U.S.C. § 1681(a)(6) (providing that
gender discrimination is allowed with regard to certain social fraternities
and sororities and volunteer youth organizations that have traditionally
been limited to one sex). Therefore, that the District exempts the Men’s
and Girl’s Honor Clubs from its overarching gender discrimination policy
does not, by itself, suggest an arbitrary or discriminatory application of
that policy so as to violate the Act. Second, another high school and a
junior high school in the District have granted ASB-recognition to other
Bible groups that do not discriminate in their membership criteria, making
it even less likely that the District’s application of its anti-discrimination
policy in this case was merely a pretext for religious animus. Nevertheless,
because the record is devoid of any evidence as to the actual reason that
the District granted a non-discrimination waiver to the Men’s and Girl’s
Honor Clubs, we must remand for further proceedings.
12468 TRUTH v. KENT SCHOOL DISTRICT
“have not always been clear.” Hopper v. City of Pasco, 241
F.3d 1067, 1074 (9th Cir. 2001) (internal quotations and cita-
tion omitted). The Supreme Court first addressed the concept,
indirectly, in Widmar. The Court recognized that, although
the state is not required to open certain fora to public dis-
course, once it elects to do so, it “assume[s] an obligation to
justify its discriminations and exclusions under applicable
constitutional norms.” Widmar, 454 U.S. at 267-68. Two
years later, in Perry Education Association v. Perry Local
Educators’ Association, 460 U.S. 37, 44-45 (1983), the
Supreme Court clarified that there are three categories of
government-run fora. “At one end of the spectrum are streets
and parks which have immemorially been held in trust for the
use of the public.” Id. at 45 (internal quotations omitted). On
the opposite end of the spectrum are those government prop-
erties that have not been traditionally considered open to the
public. Id. at 46. Finally, falling somewhere in between are
limited public fora, which “consist[ ] of public property which
the state has opened for use by the public as a place for
expressive activity.” Id. at 45.
[19] In Rosenberger, the Supreme Court held that the gov-
ernment may exclude speech in a “limited public forum,” so
long as its reasons for doing so are viewpoint neutral and
“reasonable in light of the purpose served by the forum.” 515
U.S. at 829 (quotations and citation omitted). Access to ASB
recognition qualifies as a limited public forum. See Prince,
303 F.3d at 1091. Therefore, we must consider whether the
District’s policy of restricting access to the ASB forum based
on compliance with its non-discrimination policy is viewpoint
neutral and reasonable in light of the purposes of the forum.
[20] The ASB Constitution makes it clear that the purpose
of the organization “is to develop attitudes of and practice in
good citizenship within the school; to promote harmonious
relations between students, clubs, and activities; and to act as
a forum for student and faculty expression.” The constitution
further states that this purpose will be carried out by
TRUTH v. KENT SCHOOL DISTRICT 12469
“[h]elping the student body develop a regard for law and
order by obeying, honoring, and sustaining the laws of Wash-
ington State and King County, as well as the rules of Ken-
tridge Senior High School. . . .” These broad statements of
purpose show that the purpose of the ASB program is to
advance the school’s basic pedagogical goals. The Supreme
Court has emphasized that part of a school’s mission is to
instill in students the “shared values of a civilized social
order,” which includes instilling the value of non-
discrimination. See Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 272 (1988). Therefore, the District’s decision to
restrict access to the ASB program based on a group’s will-
ingness to adhere to the school’s non-discrimination policy is
reasonable in light of the purposes of the forum.
Because this policy was reasonable in light of the purposes
served by the ASB, we must next consider whether the
group’s exclusion was viewpoint neutral. The Supreme Court
has explained that “[v]iewpoint discrimination is . . . an egre-
gious form of content discrimination,” and occurs when “the
specific motivating ideology or the opinion or perspective of
the speaker is the rationale for the restriction.” Rosenberger,
515 U.S. at 829 (emphasis added); see also Perry Educ.
Ass’n, 460 U.S. at 46 (regulation on access to a forum is not
viewpoint neutral if it is “an effort to suppress expression
merely because public officials oppose the speaker’s view”).
In cases where restriction to the forum is based solely on the
group’s religious viewpoint, the restriction is invalid. This
was the case in Prince, where the school refused to recognize
the school group World Changers “based purely on the
[group’s] religious viewpoint.” 303 F.3d at 1091.
[21] Here, in contrast, the school is not denying Truth
access based solely on its religious viewpoint, but rather on
its refusal to comply with the District’s non-discrimination
policy. The District was therefore not engaging in viewpoint
discrimination; the “perspective of the speaker” was not the
“rationale” for denying Truth access to the limited public
12470 TRUTH v. KENT SCHOOL DISTRICT
forum. See Rosenberger, 515 U.S. at 829. Applying the non-
discrimination policy to exclude Truth does not show that the
school administrators acted “merely because [they] oppose
the speaker’s view.” Perry, 460 U.S. at 46. In short, the Dis-
trict no more engaged in viewpoint discrimination by exclud-
ing Truth for refusing to comply with its non-discrimination
policy than it would have engaged in viewpoint discrimina-
tion by refusing to grant ASB status to a Student Pro-Drug
Club that refused to obey the school’s anti-drug policy. Cf.
Morse v. Frederick, 127 S.Ct. 2618, 2629 (2007) (holding that
schools may censor even private student speech that occurs
on school grounds that “they reasonably regard as promoting
illegal drug use”).
[22] This conclusion, of course, rests on the premise that
the ASB actually denied Truth’s recognition based on its fail-
ure to comply with the District’s non-discrimination policy.
There is evidence in the record that other groups, such as the
Men’s and Girl’s Honor Clubs, were granted ASB recognition
despite violating the District’s non-discrimination policy.
Therefore, to the extent Truth argues that it was denied an
exemption from the non-discrimination policy based on the
content of its speech, we hold it has raised a triable issue of
fact, and reverse the district court’s summary judgment.
V.
[23] Truth also makes a claim under the Free Exercise
Clause, the Establishment Clause, and the Equal Protection
Clause. The district court did not explicitly reach these
claims, on the grounds that Truth’s “cursory Equal Protection
Clause, Establishment Clause, and Free Exercise arguments
are all subsumed within their First Amendment argument . . .
.” On appeal, Truth continues to give cursory treatment to
these claims. Nevertheless, Truth may have a valid argument.
As discussed earlier, we are remanding to the district court to
determine whether Truth was denied an exemption from the
District’s non-discrimination policy, and whether that denial
TRUTH v. KENT SCHOOL DISTRICT 12471
was based on religion or the content of Truth’s speech. To the
extent Truth can make out a colorable First Amendment vio-
lation on these grounds, it may also have a Free Exercise
claim, since “the Supreme Court noted that free exercise
claims implicating other constitutional protections, such as
free speech, could qualify for strict scrutiny review . . . .” Am.
Family Ass’n v. City & County of San Francisco, 277 F.3d
1114, 1124 (9th Cir. 2002). Moreover, if Truth can demon-
strate that it was singled out for unequal treatment on the
basis of religion, it may also have a potentially valid Equal
Protection or Establishment Clause argument. Therefore, we
remand these issues to the district court to be considered
along with the exemption issue discussed previously.
Finally, the District has argued that the ASB has free
speech rights that would be violated if it were compelled to
recognize Truth as an ASB organization. The ASB is not a
party to this appeal and there is no indication that the District
has authorization from the ASB to assert any such First
Amendment claims. We conclude that the District lacks pru-
dential standing to assert the ASB’s free speech rights. See
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (“[A] party
generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests
of third parties.” (quotations and citation omitted)).
VI.
It is prudent to address only those issues necessary for our
decision on the third charter application. We hold only that
the District did not violate the Act or Truth’s First Amend-
ment rights by applying its non-discrimination policy to
require Truth to remove its general membership provision. To
the extent Truth alleges that the District violated the Act or
the First Amendment by refusing to provide an exemption to
its non-discrimination policy—based on Truth’s religion or
the content of its speech—we reverse the district court’s sum-
mary judgment, and remand for further proceedings.
12472 TRUTH v. KENT SCHOOL DISTRICT
REVERSED AND REMANDED.
FISHER, Circuit Judge, concurring, joined by Judge
WARDLAW:
We write separately to amplify on one issue discussed in
our main opinion. Truth argued that it must be granted access
to the ASB forum because conditioning its access to the ASB
program on a change to its discriminatory membership policy
would infringe its right to engage in speech through “expres-
sive association.” Expressive association may be burdened
when the state requires a group to change its membership
criteria, see Boy Scouts of Am. v. Dale, 530 U.S. 640, 656
(2000); Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984), or
when the state conditions access to a traditional public forum
upon such changes, Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557, 579 (1995). When
the use of school facilities is part of a general public forum,
denying access to those facilities may also implicate the right
to associate freely. See Healy v. James, 408 U.S. 169, 180-81
(1972) (noting that the “college classroom with its surround-
ing environs is peculiarly the ‘marketplace of ideas’ ” and that
the complete “denial of use of campus facilities for meetings
and other appropriate purposes” implicated a group’s right to
expressive association).
Even assuming, however, that Truth’s exclusion of non-
Christians allows it to engage in speech through expressive
association, its exclusion from the ASB program on account
of its discriminatory policy does not infringe its rights under
the First Amendment. As our opinion explains, when the state
creates a limited public forum, like the ASB program at issue
here, it may restrict access to that forum so long as the restric-
tions are “viewpoint neutral and reasonable in light of the pur-
pose served by the forum,” even if these rules have the effect
of limiting a group’s ability to engage in protected speech,
TRUTH v. KENT SCHOOL DISTRICT 12473
such as the right to speak, publish on a particular topic or
engage in expressive association. See Rosenberger v. Rector
& Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (“The
necessities of confining a forum to the limited and legitimate
purposes for which it was created may justify the State in
reserving it for certain groups or for the discussion of certain
topics.” (emphasis added)).
We reject Truth’s suggestion that state action that burdens
a group’s ability to engage in expressive association must
always be subject to strict scrutiny, even if the group seeks to
engage in expressive association through a limited public
forum. Expressive association is simply another way of
speaking, only the group communicates its message through
the act of associating instead of through an act of “pure
speech” such as publishing, marching, speaking or perform-
ing. See Dale, 530 U.S. at 648 (holding that the First Amend-
ment protects a group’s ability to exclude members, if
including such members would “impair the ability of the
group to express those views, and only those views, that it
intends to express”). There is no question that acts of expres-
sive association are protected forms of speech under the First
Amendment. See id. at 656; Hurley, 515 U.S. at 579. When
the state restricts access to a limited public forum in a way
that interferes with a group’s speech or expressive associa-
tion, however, we apply the lesser standard of scrutiny, even
if the same burden on a group’s rights outside a limited public
forum would be subject to strict scrutiny. See Rosenberger,
515 U.S. at 829-30 (applying limited public forum analysis to
a university policy that excluded a group’s access to the
school’s student activity fund, thereby preventing it from pub-
lishing a newspaper). To hold otherwise would accord an act
of “pure speech” such as publishing a newspaper — the core
of what the First Amendment protects — less protection than
an act of expressive association. We find no support for such
a proposition, and Truth has identified none.1 Truth, of course,
1
In Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006),
the Seventh Circuit reversed the denial of a preliminary injunction, hold-
12474 TRUTH v. KENT SCHOOL DISTRICT
has the option of operating as a Policy 2153 group on school
grounds, see 524 F.3d at 963, and as such would be able to
restrict its membership unfettered by the school’s nondiscrim-
ination policy. If Truth wants the additional benefits that
come from participation in the ASB program, however, Truth
must comply with the school’s reasonable, viewpoint-neutral
rules.
ing that a university group had shown that it was “reasonably likely to suc-
ceed on the merits” of its First Amendment claim after being excluded
from campus for violating the school’s nondiscrimination policy, which
the group claimed infringed its right to expressive association. Although
the Seventh Circuit applied strict scrutiny in addressing this claim, it nota-
bly stated that it could not even determine, on the limited record before
it, whether the university had created an open, limited, or nonpublic
forum. See id. at 866 (“Whether SIU’s student organization forum is a
public, designated public, or nonpublic forum is an inquiry that will
require further factual development, and that is a task properly left for the
district court.”) Walker did not say that strict scrutiny would be appropri-
ate in all cases, even if the university had created something less than an
open forum.