Lead Opinion
Opinion by Judge PREGERSON; Concurrence by Judge RIPPLE.
OPINION
The Supreme Court held in Christiаn Legal Society Chapter of the University of California, Hastings College of the Law v.
The Court expressly declined to address whеther these holdings would extend to a narrower nondiscrimination policy that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion, and sexual orientation. See id. at 2982, 2984. The constitutionality of such a policy is the issue before us in this case. We conclude that the narrower policy is constitutional. We hold, however, that Plaintiffs have raised a triable issue of fact as to whether the nairower policy was selectively enforced in this particular case, thereby violating Plaintiffs’ rights under the First and Fourteenth Amendments. We affirm in part and reverse in part, and remand to the district court for further proceedings.-
BACKGROUND
Plaintiffs are Alpha Delta Chi, a Christian sorority, and Alpha Gamma Omega, a Christian fraternity, as well as several of their officers, at San Diego State University (“San Diego State”) in California.
Alpha Delta Chi, the sorority, has several religious requirements for its members, including “personal acceptance of Jesus Christ as Savior and Lord,” “active participation in Christian service,” and “regular attendance or membership in an evangelical church.”
Alpha Gamma Omega, the fraternity, requires its members “to sincerely want to know Jesus Christ as their Lord and Savior,” and its officers must sign a “Statement of Faith” reading:
I hearby publicly confess my belief in the Lord Jesus Christ as God and only Savior and give witness to the regenerating power of the Holy Spirit in my life. I will make it a purpose of my life to continue in fellowship with God thrоugh prayer and reading of the Holy Scriptures.
Alpha Gamma Omega officers’ beliefs and practices must be “consistent with orthodox Christian beliefs.”
Plaintiffs have repeatedly submitted applications for official recognition in San Diego State’s student organization program. There are approximately 115 officially recognized student organizations at San Diego State. San Diego State requires these groups to submit a signed “Student Organization On-Campus Recognition Application,” and on-campus recognition must be renewed each year. Officially recognized student organizations receive a number of benefits, such as university funding, use of San Diego State’s name and logo, access to campus office space аnd meeting rooms, free publicity in school publications, and participation in various special university events. Officially recognized groups may set up informational tables and banners in the student union and participate in various
Each time Plaintiffs have applied for official recognition, they have been denied by San Diego State administrators because of Plaintiffs’ requirement that their members and officers profess a specific religious belief, namely, Christianity. These membership requirements conflict with San Diego State’s nondiscrimination policy, which San Diego State requires all officially recognized student organizations to include in their bylaws. The policy states:
On-campus status will not be granted to any student organization whose application is incomplete or restricts membership or eligibility to hold appointed or elected student officer positions in the campus-recognized chapter or group on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under federal law.
This policy reflects the Cаlifornia State University system’s Non-Discrimination Regulation, which states:
No campus shall recognize any fraternity, sorority, living group, honor society, or other student organization which discriminates on the basis of race, religion, national origin, ethnicity, color, age, gender, marital status, citizenship, sexual orientation, or disability. The prohibition on membership policies that discriminate on the basis of gender does not apply to social fraternities or sororities or to other university living groups.
5 CaLCode Regs. tit. 5, § 41500.
Because Plaintiffs were denied official recognition by San Diego State, they were denied the benefits of official recognition. They still may hand out flyers and post signs to recruit new members, but only in areas open to all groups, whether recognized or nоt, such as the “free speech steps” of the student union and the wall next to the university bookstore. Plaintiffs still may use university rooms for meetings and events, but not for free or at reduced prices, as officially recognized groups are able to do.
Plaintiffs brought suit in federal district court challenging San Diego State’s nondiscrimination policy under the First and Fourteenth Amendments. Plaintiffs and Defendants filed cross-motions for summary judgment, and the district court granted summary judgment on all counts in Defendants’ favor while denying Plaintiffs’ motion. Plaintiffs appeal from that judgment.
STANDARD OF REVIEW
We review a grant of summary judgment de novo. Florer v. Congregation Pidyon Shevuyim, N.A.,
DISCUSSION
I. Free Speech and Freedom of Expressive Association
Plaintiffs argue that San Diego State’s requirement that they comply with
The parties in their briefs disagree as to the proper stаndard of review for these claims. After the briefs were filed, however, the Supreme Court decided Christian Legal Society, which held that when a university excludes a student organization from official recognition for refusing to comply with the school’s nondiscrimination policy, both freedom of speech and freedom of expressive association challenges are properly analyzed under the limited-public-forum doctrine.
A limited public forum is government property opened for usе by “ ‘certain groups or dedicated solely to the discussion of certain subjects.’ ” Id. at 2984 n. 11 (quoting Pleasant Grove City v. Summum,
Christian Legal Society held that a law school’s student organization program is a limited public forum.
We see no material distinction between San Diego State’s student organization program and the student organization program discussed in Christian Legal Society and, therefore, conclude that San Diego State’s program is also a limited public forum. Like San Diego State, the university in Christian Legal Society provided
Because we conclude that San Diego State’s student organization program is a limited public forum, we apply the same analysis to both Plaintiffs’ free speech and expressive association claims: Plaintiffs’ exclusion from San Diego State’s student organization program is permissible if San Diego State’s requirement that student groups adhere to the nondiscrimination policy is (1) reasonable in light of the purpose of the forum; and (2) viewpoint neutral.
A. Reasonableness
In Truth v. Kent School District, we held that a high school’s requirement that student organizations comply with a nondiscrimination policy was a reasonable restriction in light of the purpose of the school’s student organization program.
To determine whether this policy was reasonable in light of the purpose of the student organization program, we looked to the program’s constitution. Id. at 649. The constitution listed various purposes for the program, including developing good citizenship, promoting harmonious relationships, facilitating student and faculty expression, and encouraging students to obey, honor, and sustain state and local laws and school rules. Id. We read these “broad statements of purpose” to mean that the purpose of the student organization program was to “advance the school’s basic pedagogical goals.” Id. We then noted that the Supreme Court had “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.” Id. (quoting Hazelwood Sch. Dist. v. Kuhlmeier,
As in Truth, we look to San Diego State’s Student Organizations Handbook
These statements make clear that one of the intended purposes of San Diego State’s student organization program is to promote diversity and nondiscrimination. These statements are far more explicit than the “broad statements of purpose” in Truth — the statements in Truth did not expressly mention nondiscrimination. See
Also relevant to the analysis of reasonableness is whether Plaintiffs have alternative avenues of communication besides the forum from which they have been excluded. In Christian Legal Society, the Supreme Court found the university’s nondiscrimination policy “all the more creditworthy” because the plaintiffs in that case still had many avenues for expressing their message.
As in Christian Legal Society, San Diego State allows non-recognized groups like Plaintiffs to use campus facilities for meetings, to set up tables and displays in public areas, and to distribute literature. Plaintiffs also have access to all the non-university electronic resources mentioned by the Supreme Court, as well as new resources invented since then. Thus, San Diego State’s policy should be deemed as “creditworthy” as the policy in Christian Legal Society.
Therefore, San Diego State’s nondiscrimination policy is reasonable in light of the student organization program’s purpose of promoting diversity and nondiscrimination.
Plaintiffs contend that San Diego State’s nondiscrimination policy, as written, discriminates against Plaintiffs’ viewpoint. Alternatively, Plaintiffs argue that, even if the nondiscrimination policy is viewpoint neutral on its face, San Diego State has applied it in a discriminatory fashion, exempting some groups from the policy while requiring other groups to comply with it. We find that the policy is viewpoint neutral as written, but that there are triable issues of fact as to whether San Diego State has selectively enforced its nondiscrimination policy.
1. The nondiscrimination policy as written
“ ‘Viewpoint discrimination is ... an egregious 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 [on speech].’ ” Truth,
In the context of a student organization program, the Supreme Court has made clear that an “all-comers” policy that requires all student groups to accept all members does not discriminate on the basis of viewpoint. Christian Legal Soc’y,
Plaintiffs contend that the reasoning and holding of Christian Legal Society do not apply, however, when a school’s policy prohibits only certain membership requirements, such as those based on race, gender, or religion, rather than prohibiting all membership requirements, as an all-comers policy does. The more limited nondiscrimination policy at issue in this case, Plaintiffs argue, discriminates on the basis of viewpoint because it allows secular belief-based discrimination while prohibiting religious belief-based discrimination. For example, under this more limited policy, a student Republican organization could permissibly exclude Democrats because the policy does not forbid discrimination on the basis of political belief, but a Christian group could not exclude a Muslim student because that would discriminate on the basis of religious belief.
Indeed, San Diego State stipulates that some officially recognized student groups at the university restrict membership to those who believe in the group’s purpose, or “agree with the particular ideology, belief, or philosophy the group seeks to promote.” For example, the Immigrant Rights Coalition requires members to “hold the same values regarding immigrant rights as the organization.” The San Diego Socialists at San Diego State
Plaintiffs’ argument, while seemingly compelling at first glance, does not survive closer scrutiny. We accept Plaintiffs’ assertion that San Diego State’s nondiscrimination policy incidentally burdens groups that wish to exclude others on the basis of religion, but does not burden groups that do not exclude or exclude on bases not prohibited by the policy. But this assertion is insufficient to prove viewpoint discrimination, because Plaintiffs have put forth no evidence that San Diego State implemented its nondiscrimination policy for the purpose of suppressing Plaintiffs’ viewpoint, or indeed of restricting any sort of exрression at all. See Truth,
San Diego State asserts that the purpose of its policy, which closely tracks the nondiscrimination policy applied to the entire California State University system, is to prevent discrimination and to ensure that the school’s resources are “open to all interested students without regard to special protected classifications.” Appellees’ Br. at 27. As the Supreme Court has made clear, antidiscrimination laws intended to ensure equal access to the benefits of society serve goals “unrelated to the suppression of expression” and are neutral as to both content and viewpoint. Roberts v. U.S. Jaycees,
We reached a similar conclusion in Truth, a case with facts very close to those of the instant case. In Truth, we held that a high school’s student organization program did not discriminate on the basis of viewpoint when it denied access to a religious student group for refusing to comply with a nondiscrimination policy prohibiting exclusion on enumerated grounds.
We held that the school’s nondiscrimination policy in Truth was neutral as to content and viewpoint.
It is true that content-neutral antidiscrimination laws can nonetheless violate the First Amendment right of expressive association when used to force a private group to accept members who materially interfere with the message the group wishes to express. See Boy Scouts of Am. v. Dale,
Again, we do not doubt that, regardless of San Diego State’s purpose in enacting its nondiscrimination policy, the policy will have the effect of burdening some groups more than others. But the fact that a “regulation has a differential impact on groups wishing to enforce exclusionary membership policies” does not rеnder it unconstitutional. Id. at 2994 (internal quotation marks omitted). “ ‘A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.’ ” Id. (quoting Ward,
Thus, we hold that San Diego State’s nondiscrimination policy is viewpoint neutral as written. Constitutionally speaking, therefore, San Diego State’s policy is not materially different from the content-neutral all-comers policy approved in Christian Legal Society, and must be similarly upheld against First Amendment challenge.
2. The nondiscrimination policy as applied
A nondiscrimination policy that is viewpoint neutral on its face may still be unconstitutional if not applied uniformly. See Truth,
In this case, Plaintiffs also offer evidence that San Diego State has granted official recognition to some religious student groups even though those groups, like Plaintiffs, restrict membership or eligibility to hold office based on religious belief. For example, the Catholic Newman Center’s application for official recognition by San Diego State provides that its officers
As in Truth, the evidencе that some student groups have been granted an exemption from the nondiscrimination policy raises a triable issue of fact. See
II. Free Exercise Clause and Equal Protection
In addition to their free speech and freedom of expressive association claims, Plaintiffs argue that San Diego State is targeting them because of their religious beliefs in violation of their right to the free exercise of their religion. Plaintiffs also argue that San Diego State is treating them differently from other student groups in violation of their right to equal protection under the law. As with their frеe speech and expression claims, Plaintiffs raise a triable issue of fact.
Under the Free Exercise Clause of the First Amendment, the government may not, among other things, “impose special disabilities on the basis of religious views or religious status.” Emp’t Div., Dep’t of Human Res. v. Smith,
Under the Equal Protection Clause of the Fourteenth Amendment, “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
San Diego State’s nondiscrimination policy, as written, is a rule of general application. It does not target religious belief or conduct, and does not “impose special disabilities” on Plaintiffs or other religious groups. Any burden on religion is incidental to the general application of the policy. Thus, as written, San Diego State’s policy violates neither the Free Exercise Clause nor the Equal Protection Clause. However, given the evidence that San Diego State may have granted certain groups exemptions from the policy, there remains a question whether Plaintiffs have been treated differently because of then-religious status. See Truth,
CONCLUSION
San Diego State’s nondiscrimination policy, as written, is viewpoint neutral and reasonable in light of the purpose of the student organization program. Thus, the university’s policy does not violate Plaintiffs’ rights of free speech and expressive association. Moreover, the policy does not violate Plaintiffs’ rights to free exercise of religion and equal protection under the law. But 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. We therefore remand to the district cоurt for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED. The parties shall bear their own costs on appeal.
Notes
. Plaintiffs Every Nation Campus Ministries at San Diego State University, Every Nation Campus Ministries at Long Beach State University, Haley Hawthorne, Trevor Stokes, and Gwendolyn Davis, are not participating in this appeal.
. To be protected by the First Amendment’s right to expressive association, "a group must engage in some form of expression.” Boy Scouts of Am. v. Dale,
. Plaintiffs also point out that a stated purpose of San Diego State’s forum is to "increase the range of viewpoints advocated in the marketplace of ideas on campus.” Plaintiffs argue that the nondiscrimination policy is not reasonable given this purpose, because eliminating groups such as Plaintiffs actually decreases the number of viewpoints being expressed. This argument was made and rejected in Christian Legal Society, which stated that “a State's restriction on access to a limited public forum 'need not be the most reasonable or the only reasonable limitation.' ”
. The district court interpreted the reference to "creеd” to mean that the policy prohibited
. Much of our analysis in Tmth focused on whether the school's exclusion of the plaintiff student group violated the Equal Access Act, 20 U.S.C. § 4071(a). See
. In Tmth, as in the instant case, several approved student groups had non-religious belief-based membership requirements. See
. The text of this paragraph comes from Truth's discussion of the Equal Access Act. However, we applied similar, if less fully articulated, reasoning in our First Amendment discussion. See Truth,
Concurrence Opinion
concurring:
I concur in the judgment because faithful adherence to the doctrines of stare decisis and precedent requires me to do so. I write separately because this case presents an important issue of First Amendment jurisprudence, which the Supreme Court explicitly reserved in Christian Legal Society v. Martinez, — U.S. -,
As the majority points out, this case is not controlled by the majority opinion in Christian Legal Society; SDSU has not conditioned official recognition of clubs on an organization’s adopting an “all-comers” policy. See Op. at 795. Rather, it has required that organizations not discriminate in membership or leadership on spеcified grounds: “race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition.” ER 87 ¶ 18. Under this policy, most clubs can limit their membership to those who share a common purpose or view: Vegan students, who believe that the institution is not accommodating adequately their dietary preferences, may form a student group restricted to vegans and, under the policy, gain official recognition. Clubs whose memberships are defined by issues involving “protected” categories, however, are required to welcome into their ranks and leadership those who do not share the group’s perspective: Homosexual students, who have suffered discriminatiоn or ostracism, may not both limit their membership to homosexuals and enjoy the benefits of official recognition. The policy dilutes the ability of students who fall into “protected” categories to band together for mutual support and discourse.
For many groups, the intrusive burden established by this requirement can be assuaged partially by defining the group or membership to include those who, although they do not share the dominant, immutable characteristic, otherwise sympathize with the group’s views. Most groups dedicated to forwarding the rights of a “protected” group are able to couch
Religious students, however, do not have this luxury — their shared beliefs coincide with their shared status. They cannot otherwise define themselves and not run afoul of the nondiscrimination policy. See Truth,
The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices and discourses that are religiously based. While those who espouse other causes may control their membership and come together for mutual support, others, including those exercising one of our most fundamental liberties — -the right to free exercise of one’s religion — cannot, at least on equal terms.
On this basis, I concur in the judgment of the court.