CHRISTIAN LEGAL SOCIETY CHAPTER OF THE UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE OF THE LAW, AKA HASTINGS CHRISTIAN FELLOWSHIP v. MARTINEZ ET AL.
No. 08-1371
Supreme Court of the United States
Argued April 19, 2010—Decided June 28, 2010
561 U.S. 661
GINSBURG, J.
Michael W. McConnell argued the cause for petitioner. With him on the briefs were Kimberlee Wood Colby, Gregory S. Baylor, Timothy J. Tracey, and M. Casey Mattox.
Gregory G. Garre argued the cause for respondents. With him on the brief for respondents Hastings College of the Law were Maureen E. Mahoney, J. Scott Ballenger, Lori Alvino McGill, and Ethan P. Schulman. Paul M. Smith, Duane C. Pozza, Shannon P. Minter, and Christopher F. Stoll filed a brief for respondent-intervenor Hastings Outlaw.*
*Briefs of amici curiae urging reversal were filed for the State of Michigan et al. by Michael A. Cox, Attorney General of Michigan, B. Eric Restuccia, Solicitor General, Joel D. McGormley, and Laura L. Moody, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, Bill McCollum of Florida, Lawrence G. Wasden of Idaho, James D. “Buddy” Caldwell of Louisiana, Jon Bruning of Nebraska, Gary K. King of New Mexico, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Marty J. Jackley of South Dakota, Mark L. Shurtleff of Utah, Kenneth T. Cuccinelli II of Virginia, and Darrell V. McGraw, Jr., of West Virginia; for Advocates International by Samuel E. Ericsson and Samuel B. Casey; for Agudath Israel of America by Jeffrey Ira Zuckerman and David Zwiebel; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Walter M. Weber, Paul D. Clement, and Adam M. Conrad; for the American Islamic Congress et al. by Douglas Laycock, Kevin J. Hasson, Eric C. Rassbach, and Han-
Briefs of amici curiae urging affirmance were filed for the American Bar Association by Carolyn B. Lamm, A. Stephen Hut, Jr., and Paul R. Q. Wolfson; for the American Civil Liberties Union et al. by Steven R. Shapiro, Matthew A. Coles, James D. Esseks, Daniel Mach, and Heather L. Weaver; for the American Council on Education et al. by H. Christopher Bartolomucci and Ada Meloy; for the American Humanist Association et al. by Robert V. Ritter; for the American Jewish Committee et al. by Samuel Estreicher, D. Theodore Rave, Jr., Kara H. Stein, Ayesha N. Khan, and David Saperstein; for the Anti-Defamation League et al. by Robert G. Sugarman, Steven M. Freeman, and Steven C. Sheinberg; for Associated Students of the University of California, Hastings College of Law, by Simon J. Frankel and Kelly P. Finley; for the Association of American Law Schools by Sherry F. Colb; for the Center for Inquiry by Carmine D. Boccuzzi, Jorge G. Tenreiro, Ronald A. Lindsay, and Derek C. Araujo; for the International Municipal Lawyers Association et al. by Deanne E. Maynard, Seth M. Galanter, Charles W. Thompson, Jr., and John Daniel Reaves; for the Lambda Legal Defense and Education Fund, Inc., et al. by Clifford M. Sloan, Bradley A. Klein, Jon W. Davidson, Susan L. Sommer, Gary D. Buseck, and Mary L. Bonauto; for the National LGBT Bar Association et al. by Michael T. Reynolds; for the Na-
Briefs of amici curiae were filed for the Commonwealth of Massachusetts et al. by Martha Coakley, Attorney General of Massachusetts, Irving L. Gornstein, Kathryn E. Tarbert, and Walter Dellinger, and by the Attorneys General for their respective States as follows: Douglas F. Gansler of Maryland and William H. Sorrell of Vermont; for the Association of Christian Schools International et al. by Stuart J. Lark; for the Baptist Joint Committee for Religious Liberty et al. by J. Brent Walker, K. Hollyn Hollman, and James T. Gibson; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for Gays and Lesbians for Individual Liberty by Thomas G. Hungar; for the Society of American Law Teachers by Robert M. Abrahams and Daniel L. Greenberg; and for Students for Life America et al. by James Bopp, Jr.
JUSTICE GINSBURG delivered the opinion of the Court.
In a series of decisions, this Court has emphasized that the First Amendment generally precludes public universi-
In the view of petitioner Christian Legal Society (CLS), an accept-all-comers policy impairs its First Amendment rights to free speech, expressive association, and free exercise of religion by prompting it, on pain of relinquishing the advantages of recognition, to accept members who do not share the organization‘s core beliefs about religion and sexual orientation. From the perspective of respondent Hastings College of the Law (Hastings or the Law School), CLS seeks special dispensation from an across-the-board open-access requirement designed to further the reasonable educational purposes underpinning the school‘s student-organization program.
I
Founded in 1878, Hastings was the first law school in the University of California public school system. Like many institutions of higher education, Hastings encourages students to form extracurricular associations that “contribute to the Hastings community and experience.” App. 349. These groups offer students “opportunities to pursue academic and social interests outside of the classroom [to] further their education” and to help them “develo[p] leadership skills.” Ibid.
Through its “Registered Student Organization” (RSO) program, Hastings extends official recognition to student groups. Several benefits attend this school-approved status. RSOs are eligible to seek financial assistance from the Law School, which subsidizes their events using funds from a mandatory student-activity fee imposed on all students. Id., at 217. RSOs may also use Law-School channels to communicate with students: They may place announcements in a weekly Office-of-Student-Services newsletter, advertise events on designated bulletin boards, send e-mails using a Hastings-organization address, and participate in an annual
In exchange for these benefits, RSOs must abide by certain conditions. Only a “non-commercial organization whose membership is limited to Hastings students may become [an RSO].” App. to Pet. for Cert. 83a. A prospective RSO must submit its bylaws to Hastings for approval, id., at 83a-84a; and if it intends to use the Law School‘s name or logo, it must sign a license agreement, App. 219. Critical here, all RSOs must undertake to comply with Hastings’ “Policies and Regulations Applying to College Activities, Organizations and Students.” Ibid.1
The Law School‘s Policy on Nondiscrimination (Nondiscrimination Policy), which binds RSOs, states:
“[Hastings] is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, [Hastings]-owned student residence facilities and programs sponsored by [Hastings], are governed by this policy of nondiscrimination. [Hastings‘] policy on nondiscrimination is to comply fully with applicable law.
“[Hastings] shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities.” Id., at 220.
In 2004, CLS became the first student group to do so. At the beginning of the academic year, the leaders of a predecessor Christian organization—which had been an RSO at Hastings for a decade—formed CLS by affiliating with the national Christian Legal Society (CLS-National). Id., at 222-223, 225. CLS-National, an association of Christian lawyers and law students, charters student chapters at law schools throughout the country. Id., at 225. CLS chapters must adopt bylaws that, inter alia, require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles. Id., at 225-226; App. to Pet. for Cert. 101a.3 Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS thus interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct.” App. 226. CLS also excludes students who hold religious convictions different from those in the Statement of Faith. Id., at 227.
On September 17, 2004, CLS submitted to Hastings an application for RSO status, accompanied by all required documents, including the set of bylaws mandated by CLS-National. Id., at 227-228. Several days later, the Law School rejected the application; CLS‘s bylaws, Hastings explained, did not comply with the Nondiscrimination Policy
CLS formally requested an exemption from the Nondiscrimination Policy, id., at 281, but Hastings declined to grant one. “[T]o be one of our student-recognized organizations,” Hastings reiterated, “CLS must open its membership to all students irrespective of their religious beliefs or sexual orientation.” Id., at 294. If CLS instead chose to operate outside the RSO program, Hastings stated, the school “would be pleased to provide [CLS] the use of Hastings facilities for its meetings and activities.” Ibid. CLS would also have access to chalkboards and generally available campus bulletin boards to announce its events. Id., at 219, 233. In other words, Hastings would do nothing to suppress CLS‘s endeavors, but neither would it lend RSO-level support for them.
Refusing to alter its bylaws, CLS did not obtain RSO status. It did, however, operate independently during the 2004-2005 academic year. CLS held weekly Bible-study meetings and invited Hastings students to Good Friday and Easter Sunday church services. Id., at 229. It also hosted a beach barbeque, Thanksgiving dinner, campus lecture on the Christian faith and the legal practice, several fellowship dinners, an end-of-year banquet, and other informal social activities. Ibid.
On October 22, 2004, CLS filed suit against various Hastings officers and administrators under
On cross-motions for summary judgment, the U. S. District Court for the Northern District of California ruled in favor
Nor, in the District Court‘s view, did the Law School impermissibly impair CLS‘s right to expressive association. “Hastings is not directly ordering CLS to admit [any] studen[t],” the court observed, id., at 42a; “[r]ather, Hastings has merely placed conditions on” the use of its facilities and funds, ibid. “Hastings’ denial of official recognition,” the court added, “was not a substantial impediment to CLS‘s ability to meet and communicate as a group.” Id., at 49a.
The court also rejected CLS‘s Free Exercise Clause argument. “[T]he Nondiscrimination Policy does not target or single out religious beliefs,” the court noted; rather, the policy “is neutral and of general applicability.” Id., at 63a. “CLS may be motivated by its religious beliefs to exclude students based on their religion or sexual orientation,” the court explained, “but that does not convert the reason for Hastings’ [Nondiscrimination Policy] to be one that is religiously-based.” Id., at 63a-64a.
On appeal, the Ninth Circuit affirmed in an opinion that stated, in full:
“The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F. 3d 634, 649-50 (9th Cir. 2008).” Christian Legal Soc. Chapter of Univ. of Cal. v. Kane, 319 Fed. Appx. 645, 645-646 (CA9 2009).
We granted certiorari, 558 U. S. 1076 (2009), and now affirm the Ninth Circuit‘s judgment.
Before considering the merits of CLS‘s constitutional arguments, we must resolve a preliminary issue: CLS urges us to review the Nondiscrimination Policy as written—prohibiting discrimination on several enumerated bases, including religion and sexual orientation—and not as a requirement that all RSOs accept all comers. The written terms of the Nondiscrimination Policy, CLS contends, “targe[t] solely those groups whose beliefs are based on religion or that disapprove of a particular kind of sexual behavior,” and leave other associations free to limit membership and leadership to individuals committed to the group‘s ideology. Brief for Petitioner 19 (internal quotation marks omitted). For example, “[a] political... group can insist that its leaders support its purposes and beliefs,” CLS alleges, but “a religious group cannot.” Id., at 20.
CLS‘s assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary-judgment stage. In that filing, the parties specified:
“Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.” App. 221 (Joint Stipulation ¶ 18) (emphasis added; citations omitted).5
Litigants, we have long recognized, “[a]re entitled to have [their] case tried upon the assumption that... facts, stipulated into the record, were established.” H. Hackfeld & Co. v. United States, 197 U. S. 442, 447 (1905).7 This entitlement
“[Factual stipulations are] binding and conclusive..., and the facts stated are not subject to subsequent variation. So, the parties will not be permitted to deny the truth of the facts stated,... or to maintain a contention contrary to the agreed statement, or to suggest, on appeal, that the facts were other than as stipulated or that any material fact was omitted. The burden is on the party seeking to recover to show his or her right from the facts actually stated.” 83 C. J. S., Stipulations § 93 (2000) (footnotes omitted).
This Court has accordingly refused to consider a party‘s argument that contradicted a joint “stipulation [entered] at the outset of th[e] litigation.” Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 226 (2000). Time and again, the dissent races away from the facts to which CLS stipulated. See, e. g., post, at 707, 708, 710, 711-712, 713, 716, 728-729.8 But factual stipulations are “formal con-
In light of the joint stipulation, both the District Court and the Ninth Circuit trained their attention on the constitutionality of the all-comers requirement, as described in the parties’ accord. See 319 Fed. Appx., at 645-646; App. to Pet. for Cert. 32a; id., at 36a. We reject CLS‘s unseemly attempt to escape from the stipulation and shift its target to Hastings’ policy as written. This opinion, therefore, considers only whether conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution.10
III
A
In support of the argument that Hastings’ all-comers policy treads on its First Amendment rights to free speech and
CLS would have us engage each line of cases independently, but its expressive-association and free-speech arguments merge: Who speaks on its behalf, CLS reasons, colors what concept is conveyed. See Brief for Petitioner 35 (expressive association in this case is “the functional equivalent of speech itself“). It therefore makes little sense to treat CLS‘s speech and association claims as discrete. See Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 300 (1981). Instead, three observations lead us to conclude that our limited-public-forum precedents supply the appropriate framework for assessing both CLS‘s speech and association rights.
First, the same considerations that have led us to apply a less restrictive level of scrutiny to speech in limited public forums as compared to other environments, see supra, at 679, and n. 11, apply with equal force to expressive association occurring in limited public forums. As just noted, speech and expressive-association rights are closely linked. See Roberts, 468 U. S., at 622 (Associational freedom is “implicit in the right to engage in activities protected by the First
Second, and closely related, the strict scrutiny we have applied in some settings to laws that burden expressive association would, in practical effect, invalidate a defining characteristic of limited public forums—the State may “reserv[e] [them] for certain groups.” Rosenberger, 515 U.S., at 829. See also Perry Ed. Assn., 460 U.S., at 49 (“Implicit in the concept” of a limited public forum is the State‘s “right to make distinctions in access on the basis of . . . speaker identity.“); Cornelius, 473 U.S., at 806 (“[A] speaker may be excluded from” a limited public forum “if he is not a member of the class of speakers for whose especial benefit the forum was created.“).
An example sharpens the tip of this point: Schools, including Hastings, see App. to Pet. for Cert. 83a, ordinarily, and without controversy, limit official student-group recognition to organizations comprising only students—even if those groups wish to associate with nonstudents. See, e. g., Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919, 1940 (2006). The same ground rules must govern both speech and association challenges in the limited-public-forum context, lest strict scrutiny trump a public university‘s ability to “confin[e] a [speech] forum to the limited and legitimate purposes for which it was created.” Rosenberger, 515 U.S., at 829. See also Healy, 408 U.S., at 189 (“Associational activities need not be tolerated where they infringe reasonable campus rules.“).
In diverse contexts, our decisions have distinguished between policies that require action and those that withhold benefits. See, e. g., Grove City College v. Bell, 465 U.S. 555, 575-576 (1984); Bob Jones Univ. v. United States, 461 U.S. 574, 602-604 (1983). Application of the less restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition. Cf. Norwood v. Harrison, 413 U.S. 455, 463 (1973) (“That the Constitution may compel toleration of private discrimination in some circumstances does not mean that it requires state support for such discrimination.“).
In sum, we are persuaded that our limited-public-forum precedents adequately respect both CLS‘s speech and expressive-association rights, and fairly balance those rights against Hastings’ interests as property owner and educational institution. We turn to the merits of the instant dispute, therefore, with the limited-public-forum decisions as our guide.
B
As earlier pointed out, supra, at 667-668, 678-679, we do not write on a blank slate; we have three times before considered clashes between public universities and student groups seeking official recognition or its attendant benefits. First, in Healy, a state college denied school affiliation to a student group that wished to form a local chapter of Students for a Democratic Society (SDS). 408 U.S., at 170. Characterizing SDS‘s mission as violent and disruptive, and finding the organization‘s philosophy repugnant, the college completely banned the SDS chapter from campus; in its effort to sever all channels of communication between students and the group, university officials went so far as to disband a meeting of SDS members in a campus coffee shop. Id., at 174-176. The college, we noted, could require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law,” including “reasonable standards respecting conduct.” Id., at 193. But a public educational institution exceeds constitutional bounds, we held, when it “restrict[s] speech or association simply because
We later relied on Healy in Widmar. In that case, a public university, in an effort to avoid state support for religion, had closed its facilities to a registered student group that sought to use university space for religious worship and discussion. Widmar v. Vincent, 454 U.S. 263, 264-265 (1981). “A university‘s mission is education,” we observed, “and decisions of this Court have never denied a university‘s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities.” Id., at 268, n. 5. But because the university singled out religious organizations for disadvantageous treatment, we subjected the university‘s regulation to
Most recently and comprehensively, in Rosenberger, we reiterated that a university generally may not withhold benefits from student groups because of their religious outlook. The officially recognized student group in Rosenberger was denied student-activity-fee funding to distribute a newspaper because the publication discussed issues from a Christian perspective. 515 U.S., at 825-827. By “select[ing] for disfavored treatment those student journalistic efforts with religious editorial viewpoints,” we held, the university had engaged in “viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum‘s limitations.” Id., at 831, 830.
In all three cases, we ruled that student groups had been unconstitutionally singled out because of their points of view. “Once it has opened a limited [public] forum,” we emphasized, “the State must respect the lawful boundaries it has itself set.” Id., at 829. The constitutional constraints on the boundaries the State may set bear repetition here: “The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, . . . nor may it discriminate against speech on the basis of . . . viewpoint.” Ibid. (internal quotation marks omitted).
C
We first consider whether Hastings’ policy is reasonable taking into account the RSO forum‘s function and “all the surrounding circumstances.” Cornelius, 473 U.S., at 809.
1
Our inquiry is shaped by the educational context in which it arises: “First Amendment rights,” we have observed,
A college‘s commission—and its concomitant license to choose among pedagogical approaches—is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process. See Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 831, n. 4 (2002) (involvement in student groups is “a significant contributor to the breadth and quality of the educational experience” (internal quotation marks omitted)). Schools, we have emphasized, enjoy “a significant measure of authority over the type of officially recognized activities in
2
With appropriate regard for school administrators’ judgment, we review the justifications Hastings offers in defense of its all-comers requirement.17 First, the open-access pol-
Second, the all-comers requirement helps Hastings police the written terms of its Nondiscrimination Policy without inquiring into an RSO‘s motivation for membership restrictions. To bring the RSO program within CLS‘s view of the Constitution‘s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. See Tr. of Oral Arg. 18. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?
Third, the Law School reasonably adheres to the view that an all-comers policy, to the extent it brings together individuals with diverse backgrounds and beliefs, “encourages tolerance, cooperation, and learning among students.” App. 349.19 And if the policy sometimes produces discord, Hastings can rationally rank among RSO-program goals development of conflict-resolution skills, toleration, and readiness to find common ground.
Fourth, Hastings’ policy, which incorporates—in fact, subsumes—state-law proscriptions on discrimination, conveys
In sum, the several justifications Hastings asserts in support of its all-comers requirement are surely reasonable in light of the RSO forum‘s purposes.20
3
The Law School‘s policy is all the more creditworthy in view of the “substantial alternative channels that remain open for [CLS-student] communication to take place.” Perry Ed. Assn., 460 U.S., at 53. If restrictions on access to a limited public forum are viewpoint discriminatory, the ability of a group to exist outside the forum would not cure the constitutional shortcoming. But when access barriers are viewpoint neutral, our decisions have counted it significant that other available avenues for the group to exercise its First Amendment rights lessen the burden created by those barriers. See ibid.; Cornelius, 473 U.S., at 809; Greer v. Spock, 424 U.S. 828, 839 (1976); Pell, 417 U.S., at 827-828.
In this case, Hastings offered CLS access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events. App. 232-233. Although CLS could not take advantage of RSO-specific methods of communication, see supra, at 669-670,
Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation.21 Based on the record before us, CLS was similarly situated: It hosted a variety of activities the year after Hastings denied it recognition, and the number of students attending those meetings and events doubled. App. 224, 229-230. “The variety and type of alternative modes of access present here,” in short, “compare favorably with those in other [limited public] forum cases where we have upheld restrictions on access.” Perry Ed. Assn., 460 U.S., at 53-54. It is beyond dissenter‘s license, we note again, see supra, at 687-688, n. 17, constantly to maintain that nonrecognition of a student organization is equivalent to prohibiting its members from speaking.
CLS nevertheless deems Hastings’ all-comers policy “frankly absurd.” Brief for Petitioner 49. “There can be no diversity of viewpoints in a forum,” it asserts, “if groups are not permitted to form around viewpoints.” Id., at 50; accord post, at 730 (ALITO, J., dissenting). This catchphrase confuses CLS‘s preferred policy with constitutional limitation—the advisability of Hastings’ policy does not control its permissibility. See Wood v. Strickland, 420 U.S. 308, 326 (1975). Instead, we have repeatedly stressed that a State‘s restriction on access to a limited public forum “need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S., at 808.22
CLS also assails the reasonableness of the all-comers policy in light of the RSO forum‘s function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real. CLS points to no history or prospect of RSO hijackings at Hastings. Cf. National Endowment for Arts v. Finley, 524 U.S. 569, 584 (1998) (“[W]e are reluctant . . . to invalidate legislation on the basis of its hypothetical application to situations not before the Court.” (internal quotation marks omitted)). Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their
RSOs, moreover, in harmony with the all-comers policy, may condition eligibility for membership and leadership on attendance, the payment of dues, or other neutral requirements designed to ensure that students join because of their commitment to a group‘s vitality, not its demise. See supra, at 671, n. 2. Several RSOs at Hastings limit their membership rolls and officer slates in just this way. See, e. g., App. 192 (members must “[p]ay their dues on a timely basis” and “attend meetings regularly“); id., at 173 (members must complete an application and pay dues; “[a]ny active member who misses a semester of regularly scheduled meetings shall be dropped from rolls“); App. to Pet. for Cert. 129a (“Only Hastings students who have held membership in this organization for a minimum of one semester shall be eligible to be an officer.“).23
Hastings, furthermore, could reasonably expect more from its law students than the disruptive behavior CLS hypothesizes—and to build this expectation into its educational approach. A reasonable policy need not anticipate and preemptively close off every opportunity for avoidance or manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or destroy their missions, Hastings presumably would revisit and revise its policy. See Tr. of Oral Arg. 41 (counsel for Hastings); Brief for Hastings 38.
Finally, CLS asserts (and the dissent repeats, post, at 733-734) that the Law School lacks any legitimate interest—let
D
We next consider whether Hastings’ all-comers policy is viewpoint neutral.
1
Although this aspect of limited-public-forum analysis has been the constitutional sticking point in our prior decisions, as earlier recounted, supra, at 683-685, we need not dwell on it here. It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers. In contrast to Healy, Widmar, and Rosenberger, in which universities singled out organizations for disfavored treatment because of their points of view, Hastings’ all-comers requirement draws no distinction between groups based on their message or perspective. An all-
2
Conceding that Hastings’ all-comers policy is “nominally neutral,” CLS attacks the regulation by pointing to its effect: The policy is vulnerable to constitutional assault, CLS contends, because “it systematically and predictably burdens most heavily those groups whose viewpoints are out of favor with the campus mainstream.” Brief for Petitioner 51; cf. post, at 706 (ALITO, J., dissenting) (charging that Hastings’ policy favors “political[ly] correc[t]” student expression). This argument stumbles from its first step because “[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.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). See also Madsen v. Women‘s Health Center, Inc., 512 U.S. 753, 763 (1994) (“[T]he fact that the injunction covered people with
Even if a regulation has a differential impact on groups wishing to enforce exclusionary membership policies, “[w]here the [State] does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R. A. V. v. St. Paul, 505 U.S. 377, 390 (1992). See also Roberts, 468 U.S., at 623 (State‘s nondiscrimination law did not “distinguish between prohibited and permitted activity on the basis of viewpoint.“); Board of Directors of Rotary Int‘l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (same).
Hastings’ requirement that student groups accept all comers, we are satisfied, “is justified without reference to the content [or viewpoint] of the regulated speech.” Ward, 491 U.S., at 791 (internal quotation marks omitted; emphasis deleted). The Law School‘s policy aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior: Hastings’ “desire to redress th[e] perceived harms” of exclusionary membership policies “provides an adequate explanation for its [all-comers condition] over and above mere disagreement with [any student group‘s] beliefs or biases.” Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993). CLS‘s conduct—not its Christian perspective—is, from Hastings’ vantage point, what stands between the group and RSO status. “In the end,” as Hastings observes, “CLS is simply confusing its own viewpoint-based objections to . . . nondiscrimination laws (which it is entitled to have and [to] voice) with viewpoint discrimination.” Brief for Hastings 31.26
IV
In its reply brief, CLS contends that “[t]he peculiarity, incoherence, and suspect history of the all-comers policy all point to pretext.” Reply Brief 23. Neither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance.28 On remand, the Ninth Circuit may con-
*
For the foregoing reasons, we affirm the Court of Appeals’ ruling that the all-comers policy is constitutional and remand the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, concurring.
The Court correctly confines its discussion to the narrow issue presented by the record, see ante, at 675-678, and correctly upholds the all-comers policy. I join its opinion without reservation. Because the dissent has volunteered an argument that the school‘s general Nondiscrimination Policy would be “plainly” unconstitutional if applied to this case, post, at 723 (opinion of ALITO, J.), a brief response is appropriate. In my view, both policies are plainly legitimate.
The Hastings College of the Law‘s (Hastings) Nondiscrimination Policy contains boilerplate language used by institutions and workplaces across the country: It prohibits “unlawfu[l]” discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” App. 220. Petitioner, the Hastings chapter of the Christian Legal Society (CLS), refused to comply. As the Court explains, ante, at 671-672, CLS was unwilling to admit members unless they affirmed their belief in certain Christian doctrines and refrained from “participation in or advocacy of a sexually immoral lifestyle,” App. 146. CLS, in short, wanted to receive the school‘s formal recognition—and the benefits that attend formal recognition—while continuing to
In the dissent‘s view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS‘s rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion. There are numerous reasons why this counterintuitive theory is unsound. Although the First Amendment may protect CLS‘s discriminatory practices off campus, it does not require a public university to validate or support them.
As written, the Nondiscrimination Policy is content and viewpoint neutral. It does not reflect a judgment by school officials about the substance of any student group‘s speech. Nor does it exclude any would-be groups on the basis of their convictions. Indeed, it does not regulate expression or belief at all. The policy is “directed at the organization‘s activities rather than its philosophy,” Healy v. James, 408 U.S. 169, 188 (1972). Those who hold religious beliefs are not “singled out,” post, at 724 (ALITO, J., dissenting); those who engage in discriminatory conduct based on someone else‘s religious status and belief are singled out.1 Regardless of
To be sure, the policy may end up having greater consequence for religious groups—whether and to what extent it will is far from clear ex ante—inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths. But there is likewise no evidence that the policy was intended to cause harm to religious groups, or that it has in practice caused significant harm to their operations. And it is a basic tenet of First Amendment law that disparate impact does not, in itself, constitute viewpoint discrimination.2 The dissent has thus given no reason to be skeptical of the basic design, function, or rationale of the Nondiscrimination Policy.
2
What the policy does reflect is a judgment that discrimination by school officials or organizations on the basis of certain
It is critical, in evaluating CLS‘s challenge to the Nondis-crimination Policy, to keep in mind that an RSO program is a limited forum—the boundaries of which may be delimited by the proprietor. When a religious association, or a secular association, operates in a wholly public setting, it must be allowed broad freedom to control its membership and its message, even if its decisions cause offense to outsiders. Profound constitutional problems would arise if the State of California tried to “demand that all Christian groups admit members who believe that Jesus was merely human.” Post, at 731 (ALITO, J., dissenting). But the CLS chapter that brought this lawsuit does not want to be just a Christian group; it aspires to be a recognized student organization. The Hastings College of the Law is not a legislature. And no state actor has demanded that anyone do anything outside the confines of a discrete, voluntary academic program. Although it may be the case that to some “university students,
The campus is, in fact, a world apart from the public square in numerous respects, and religious organizations, as well as all other organizations, must abide by certain norms of conduct when they enter an academic community. Public universities serve a distinctive role in a modern democratic society. Like all specialized government entities, they must make countless decisions about how to allocate resources in pursuit of their role. Some of those decisions will be controversial; many will have differential effects across populations; virtually all will entail value judgments of some kind. As a general matter, courts should respect universities’ judgments and let them manage their own affairs.
The RSO forum is no different. It is not an open commons that Hastings happens to maintain. It is a mechanism through which Hastings confers certain benefits and pursues certain aspects of its educational mission. Having exercised its discretion to establish an RSO program, a university must treat all participants evenhandedly. But the university need not remain neutral—indeed it could not remain neutral—in determining which goals the program will serve and which rules are best suited to facilitate those goals. These are not legal questions but policy questions; they are not for the Court but for the university to make. When any given group refuses to comply with the rules, the RSO sponsor need not admit that group at the cost of undermining the program and the values reflected therein. On many levels, a university administrator has a “greater interest in the content of student activities than the police chief has in the content of a soapbox oration.” Widmar v. Vincent, 454 U.S. 263, 280 (1981) (STEVENS, J., concurring in judgment).
In this case, petitioner excludes students who will not sign its Statement of Faith or who engage in “unrepentant homosexual conduct,” App. 226. The expressive association argument it presses, however, is hardly limited to these facts.
JUSTICE KENNEDY, concurring.
To be effective, a limited forum often will exclude some speakers based on their affiliation (e. g., student versus nonstudent) or based on the content of their speech, interests, and expertise (e. g., art professor not chosen as speaker for conference on public transit). When the government does exclude from a limited forum, however, other content-based judgments may be impermissible. For instance, an otherwise qualified and relevant speaker may not be excluded because of hostility to his or her views or beliefs. See Healy v. James, 408 U.S. 169, 187-188 (1972).
In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), the essential purpose of the limited forum was to facilitate the expression of differing views in the context of student publications. The forum was limited because it was confined: first, to student-run groups; and second, to publications. The forum was created in the long tradition of using newspapers and other publications to express differing views and also in the honored tradition of a university setting that stimulates the free exchange of ideas. See id., at 835 (“[I]n the University setting, . . . the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition“). These considerations supported the Court‘s conclusion that, under the
Rosenberger is distinguishable from the instant case in various respects. Not least is that here the school policy in question is not content based either in its formulation or evi-
An objection might be that the all-comers policy, even if not so designed or intended, in fact makes it difficult for certain groups to express their views in a manner essential to their message. A group that can limit membership to those who agree in full with its aims and purposes may be more effective in delivering its message or furthering its expressive objectives; and the Court has recognized that this interest can be protected against governmental interference or regulation. See Boy Scouts of America v. Dale, 530 U.S. 640 (2000). By allowing like-minded students to form groups around shared identities, a school creates room for self-expression and personal development. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000) (“The University‘s whole justification for [its student activity program] is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors“).
In the instant case, however, if the membership qualification were enforced, it would contradict a legitimate purpose for having created the limited forum in the first place. Many educational institutions, including respondent Hastings College of the Law, have recognized that the process of learning occurs both formally in a classroom setting and informally outside of it. See id., at 233. Students may be shaped as profoundly by their peers as by their teachers. Extracurricular activities, such as those in the Hastings “Registered Student Organization” program, facilitate interactions between students, enabling them to explore new points of view, to develop interests and talents, and to nurture a growing sense of self. See Board of Ed. of Independ- ent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 831, n. 4 (2002) (participation in extracurricular activities is “‘a significant contributor to the breadth and quality of the educational experience‘“). The Hastings program is designed to allow all students to interact with their colleagues across a broad, seemingly unlimited range of ideas, views, and activities. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 313, n. 48 (1978) (opinion of Powell, J.) (“[A] great deal of learning occurs through interactions among students . . . who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world” (alteration in original; internal quotation marks omitted)).
Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner and to express doubt and disagreement in a professional way. A law school furthers these objectives by allowing broad diversity in registered student organizations. But these objectives may be better achieved if students can act cooperatively to learn from and teach each other through interactions in social and intellectual contexts. A vibrant dialogue is not possible if students wall themselves off from opposing points of view.
The school‘s objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime. Indeed, were those sorts of requirements to become prevalent, it might undermine the principle that in a university community—and in a law school community specifically—speech is deemed persuasive based on its
In addition to a circumstance, already noted, in which it could be demonstrated that a school has adopted or enforced its policy with the intent or purpose of discriminating or disadvantaging a group on account of its views, petitioner also would have a substantial case on the merits if it were shown that the all-comers policy was either designed or used to infiltrate the group or challenge its leadership in order to stifle its views. But that has not been shown to be so likely or self-evident as a matter of group dynamics in this setting that the Court can declare the school policy void without more facts; and if there were a showing that in a particular case the purpose or effect of the policy was to stifle speech or make it ineffective, that, too, would present a case different from the one before us.
These observations are offered to support the analysis set forth in the opinion of the Court, which I join.
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting.
The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 654-655 (1929) (Holmes, J., dissenting). Today‘s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country‘s institutions of higher learning.
The Hastings College of the Law, a state institution, permits student organizations to register with the law school
Rejecting this argument, the Court finds that it has been Hastings’ policy for 20 years that all registered organizations must admit any student who wishes to join. Deferring broadly to the law school‘s judgment about the permissible limits of student debate, the Court concludes that this “accept-all-comers” policy, ante, at 668, is both viewpoint neutral and consistent with Hastings’ proclaimed policy of fostering a diversity of viewpoints among registered student groups.
The Court‘s treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS‘s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions “do not wish to . . . lend their name[s].” Brief for Respondent Hastings College of the Law 11; see also id., at 35.
I
The Court provides a misleading portrayal of this case. As related by the Court, (1) Hastings, for the past 20 years, has required any student group seeking registration to admit any student who wishes to join, ante, at 671-672; (2) the ef-
A
The Court bases all of its analysis on the proposition that the relevant Hastings’ policy is the so-called accept-all-comers policy. This frees the Court from the difficult task of defending the constitutionality of either the policy that Hastings actually—and repeatedly—invoked when it denied registration, i. e., the school‘s written Nondiscrimination Policy, or the policy that Hastings belatedly unveiled when it filed its brief in this Court. Overwhelming evidence, however, shows that Hastings denied CLS‘s application pursuant to the Nondiscrimination Policy and that the accept-all-comers policy was nowhere to be found until it was mentioned by a former dean in a deposition taken well after this case began.
The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines, including the belief that the Bible is “the inspired Word of God.” App. 226. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, 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.” Id., at 146. The resolution made it clear that “a sexually immoral lifestyle,” in CLS‘s view, includes engaging in “acts of sexual conduct outside of God‘s design for marriage between one man and one woman.” Ibid. It was shortly after this resolution was passed that
Hastings sponsors an active program of “registered student organizations” (RSOs) pursuant to the law school‘s avowed responsibility to “ensure an opportunity for the expression of a variety of viewpoints” and promote “the highest standards of . . . freedom of expression,” App. to Pet. for Cert. 82a, 74a. During the 2004-2005 school year, Hastings had more than 60 registered groups, including political groups (e. g., the Hastings Democratic Caucus and the Hastings Republicans), religious groups (e. g., the Hastings Jewish Law Students Association and the Hastings Association of Muslim Law Students), groups that promote social causes (e. g., both pro-choice and pro-life groups), groups organized around racial or ethnic identity (e. g., the Black Law Students Association, the Korean American Law Society, La Raza Law Students Association, and the Middle Eastern Law Students Association), and groups that focus on gender or sexuality (e. g., the Clara Foltz Feminist Association and Students Raising Consciousness at Hastings). See App. 236-245; Brief for Petitioner 3-4.
Not surprisingly many of these registered groups were and are dedicated to expressing a message. For example, Silenced Right, a pro-life group, taught that “all human life from the moment of conception until natural death is sacred and has inherent dignity,” App. 244, while Law Students for Choice aimed to “defend and expand reproductive rights,” id., at 243. The American Constitution Society sought “to counter . . . a narrow conservative vision” of “American law,” id., at 236, and the UC Hastings Student Animal Defense Fund aimed “at protecting the lives and advancing the interests of animals through the legal system,” id., at 245.
Groups that are granted registration are entitled to meet on university grounds and to access multiple channels for communicating with students and faculty—including posting messages on designated bulletin boards, sending mass
When CLS applied for registration, Judy Hansen Chapman, the Director of Hastings’ Office of Student Services, sent an e-mail to an officer of the chapter informing him that “CLS‘s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, App. 228, 277, a written policy that provides in pertinent part that “[t]he University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation,” id., at 220. As far as the record reflects, Ms. Chapman made no mention of an accept-all-applicants policy.
A few days later, three officers of the chapter met with Ms. Chapman, and she reiterated that the CLS bylaws did not comply with “the religion and sexual orientation provisions of the Nondiscrimination Policy and that they would need to be amended in order for CLS to become a registered student organization.” Id., at 228. About a week later, Hastings sent CLS a letter to the same effect. Id., at 228-229, 293-295. On both of these occasions, it appears that not a word was said about an accept-all-comers policy.
When CLS refused to change its membership requirements, Hastings denied its request for registration—thus making CLS the only student group whose application for registration has ever been rejected. Brief in Opposition 4.
In October 2004, CLS brought this action under
In May 2005, Hastings filed an answer to CLS‘s first amended complaint and made an admission that is significant for present purposes. In its complaint, CLS had alleged that the Nondiscrimination Policy discriminates against religious groups because it prohibits those groups “from selecting officers and members dedicated to a particular set of religious ideals or beliefs” but “permits political, social and cultural student organizations to select officers and members dedicated to their organization‘s ideals and beliefs.” Id., at 79. In response, Hastings admitted that its Nondiscrimination Policy “permits political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” Id., at 93. The Court states that “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers.” Ante, at 671. But this admission in Hastings’ answer shows that Hastings had not adopted this interpretation when its answer was filed.
Within a few months, however, Hastings’ position changed. In July 2005, Mary Kay Kane, then the dean of the law school, was deposed, and she stated: “It is my view that in order to be a registered student organization you have to allow all of our students to be members and full participants if they want to.” App. 343. In a declaration filed in October 2005, Ms. Chapman provided a more developed explanation, stating: “Hastings interprets the Nondiscrimination Policy as requiring that student organizations wishing to register with Hastings allow any Hastings student to become a member and/or seek a leadership position in the organization.” Id., at 349.
Hastings claims that this accept-all-comers policy has existed since 1990 but points to no evidence that the policy was ever put in writing or brought to the attention of mem-
Hastings’ effort to portray the accept-all-comers policy as merely an interpretation of the Nondiscrimination Policy runs into obvious difficulties. First, the two policies are simply not the same: The Nondiscrimination Policy proscribes discrimination on a limited number of specified grounds, while the accept-all-comers policy outlaws all selectivity. Second, the Nondiscrimination Policy applies to everything that Hastings does, and the law school does not follow an accept-all-comers policy in activities such as admitting students and hiring faculty.
In an effort to circumvent this problem, the Court writes that “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers.” Ante, at 671 (emphasis added). This puts Hastings in the implausible position of maintaining that the Nondiscrimination Policy means one thing as applied to the RSO program and something quite different as applied to all of Hastings’ other activities. But the Nondiscrimination Policy by its terms applies fully to all components of the law school, “including administration [and] faculty.” App. 220.
Third, the record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that “any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as
We are told that, when CLS pointed out these discrepancies during this litigation, Hastings took action to ensure that student groups were in fact complying with the law school‘s newly disclosed accept-all-comers policy. For example, Hastings asked La Raza to revise its bylaws to allow all students to become voting members. App. to Pet. for Cert. 66a. See also Brief for State of Michigan et al. as Amici Curiae 2, n. 1 (relating anecdotally that Hastings recently notified the Hastings Democrats that “to maintain the Club‘s standing as a student organization,” it must “open its membership to all students, irrespective of party affiliation“). These belated remedial efforts suggest, if anything, that Hastings had no accept-all-comers policy until this litigation was well under way.
Finally, when Hastings filed its brief in this Court, its policy, which had already evolved from a policy prohibiting certain specified forms of discrimination into an accept-all-
When this case was in the District Court, that court took care to address both the Nondiscrimination Policy and the accept-all-comers policy. See, e. g., App. to Pet. for Cert. 8a-9a, 16a-17a, 21a-24a, 26a, 27a, 32a, 44a, 63a. On appeal, however, a panel of the Ninth Circuit, like the Court today, totally ignored the Nondiscrimination Policy. CLS‘s argument in the Ninth Circuit centered on the Nondiscrimination Policy, and CLS argued strenuously, as it had in the District Court, that prior to the former dean‘s deposition, numerous groups had been permitted to restrict membership to students who shared the groups’ views.1 Nevertheless, the
Like the majority of this Court, the Ninth Circuit relied on the following Joint Stipulation, which the parties filed in December 2005, well after Dean Kane‘s deposition:
“Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of their status or beliefs.” App. 221.
Citing the binding effect of stipulations, the majority sternly rejects what it terms “CLS‘s unseemly attempt to escape from the stipulation and shift its target to [the Nondiscrimination Policy].” Ante, at 678.
I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected. What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all-comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. On the contrary, the Joint Stipulation notes that the reason repeatedly given by Hastings at that time was that the CLS bylaws did not comply with the Nondiscrimination Policy. See App. 228-229. Indeed, the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004. In addition, Hastings itself is now attempting to walk away from this stipulation by disclosing that its real policy is an accept-some-comers policy.
B
The Court also distorts the record with respect to the effect on CLS of Hastings’ decision to deny registration. The Court quotes a letter written by Hastings’ general counsel in which she stated that Hastings “‘would be pleased to provide [CLS] the use of Hastings facilities for its meetings and activities.‘” Ante, at 673 (quoting App. 294). Later in its opinion, the Court reiterates that “Hastings offered CLS access to school facilities to conduct meetings,” ante, at 690, but the majority does not mention that this offer was subject to important qualifications. As Hastings’ attorney put it in the District Court, Hastings told CLS: “‘Hastings allows community groups to some degree to use its facilities, sometimes on a pay basis, I understand, if they‘re available after priority is given to registered organizations.’ We offered that.” App. 442.
The Court also fails to mention what happened when CLS attempted to take advantage of Hastings’ offer. On August 19, 2005, the local CLS president sent an e-mail to Ms. Chapman requesting permission to set up an “advice
In September 2005, CLS tried again. Through counsel, CLS sought to reserve a room on campus for a guest speaker who was scheduled to appear on a specified date. Id., at 302-303. Noting Ms. Chapman‘s tardy response on the prior occasion, the attorney asked to receive a response before the scheduled date, but once again no answer was given until after the date had passed. Id., at 300.
Other statements in the majority opinion make it seem as if the denial of registration did not hurt CLS at all. The Court notes that CLS was able to hold Bible-study meetings and other events. Ante, at 673. And “[a]lthough CLS could not take advantage of RSO-specific methods of communication,” the Court states, “the advent of electronic media and social-networking sites reduces the importance of those channels.” Ante, at 690-691.
At the beginning of the 2005 school year, the Hastings CLS group had seven members, App. to Pet. for Cert. 13a, so there can be no suggestion that the group flourished. And since one of CLS‘s principal claims is that it was subjected to discrimination based on its viewpoint, the majority‘s emphasis on CLS‘s ability to endure that discrimination—by using private facilities and means of communication—is quite amazing.
This Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad. We have never
C
Finally, I must comment on the majority‘s emphasis on funding. According to the majority, CLS is “seeking what is effectively a state subsidy,” ante, at 682, and the question presented in this case centers on the “use of school funds,” ante, at 668. In fact, funding plays a very small role in this case. Most of what CLS sought and was denied—such as permission to set up a table on the law school patio—would have been virtually cost free. If every such activity is regarded as a matter of funding, the
II
To appreciate how far the Court has strayed, it is instructive to compare this case with Healy v. James, 408 U.S. 169 (1972), our only
The effects of nonrecognition in Healy were largely the same as those present here. The SDS was denied the use of campus facilities, as well as access to the customary means used for communication among the members of the college community. Id., at 176, 181-182.
The lower federal courts held that the
This Court took a different view. The Court held that the denial of recognition substantially burdened the students’ right to freedom of association. After observing that “[t]he primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes,” id., at 181, the Court continued:
“Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization‘s ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, faculty members, and other stu-
dents. Such impediments cannot be viewed as insubstantial.” Id., at 181-182 (footnote omitted).
It is striking that all of these same burdens are now borne by CLS. CLS is prevented from using campus facilities—unless at some future time Hastings chooses to provide a timely response to a CLS request and allow the group, as a favor or perhaps in exchange for a fee, to set up a table on the patio or to use a room that would otherwise be unoccupied. And CLS, like the SDS in Healy, has been cut off from “the customary media for communicating with the administration, faculty members, and other students.” Id., at 181-182.
It is also telling that the Healy Court, unlike today‘s majority, refused to defer to the college president‘s judgment regarding the compatibility of “sound educational policy” and free speech rights. The same deference arguments that the majority now accepts were made in defense of the college president‘s decision to deny recognition in Healy. Respondents in that case emphasized that the college president, not the courts, had the responsibility of administering the institution and that the courts should allow him “‘wide discretion in determining what actions are most compatible with its educational objectives.‘” Brief for Respondents in Healy v. James, O. T. 1971, No. 71-452, pp. 7-8. A supporting amicus contended that college officials “must be allowed a very broad discretion in formulating and implementing policies.” Brief for Board of Trustees, California State Colleges 6. Another argued that universities should be permitted to impose restrictions on speech that would not be tolerated elsewhere. Brief for American Association of Presidents of Independent Colleges and Universities 11-12.
The Healy Court would have none of this. Unlike the Court today, the Healy Court emphatically rejected the proposition that ”
The Healy Court was true to the principle that when it comes to the interpretation and application of the right to free speech, we exercise our own independent judgment. We do not defer to Congress on such matters, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989), and there is no reason why we should bow to university administrators.
In the end, I see only two possible distinctions between Healy and the present case. The first is that Healy did not involve any funding, but as I have noted, funding plays only a small part in this case. And if Healy would otherwise prevent Hastings from refusing to register CLS, I see no good reason why the potential availability of funding should enable Hastings to deny all of the other rights that go with registration.
This leaves just one way of distinguishing Healy: the identity of the student group. In Healy, the Court warned that the college president‘s views regarding the philosophy of the SDS could not “justify the denial of First Amendment rights.” 408 U.S., at 187. Here, too, disapproval of CLS cannot justify Hastings’ actions.2
III
In this case, the forum consists of the RSO program. Once a public university opens a limited public forum, it “must respect the lawful boundaries it has itself set.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). The university “may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum.‘” Ibid. (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985)). And the university must maintain strict viewpoint neutrality. Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 234 (2000); Rosenberger, supra, at 829.
This requirement of viewpoint neutrality extends to the expression of religious viewpoints. In an unbroken line of decisions analyzing private religious speech in limited public forums, we have made it perfectly clear that “[r]eligion is [a] viewpoint from which ideas are conveyed.” Good News Club v. Milford Central School, 533 U.S. 98, 112, and n. 4 (2001). See Rosenberger, supra, at 831; Lamb‘s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393-394 (1993); Widmar v. Vincent, 454 U.S. 263, 277 (1981).
We have applied this analysis in cases in which student speech was restricted because of the speaker‘s religious viewpoint, and we have consistently concluded that such restrictions constitute viewpoint discrimination. E. g., Rosenberger, supra, at 845-846; Widmar, supra, at 267, n. 5, 269, 277; see also Good News Club, supra, at 106-107, 109-110;
IV
Analyzed under this framework, Hastings’ refusal to register CLS pursuant to its Nondiscrimination Policy plainly fails.3 As previously noted, when Hastings refused to register CLS, it claimed that the CLS bylaws impermissibly discriminated on the basis of religion and sexual orientation.
Religion. The
With one important exception, the Hastings Nondiscrimination Policy respected that right. As Hastings stated in its answer, the Nondiscrimination Policy “permit[ted] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” App. 93. But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination. “By the very terms of the [Nondiscrimination Policy], the University ... select[ed] for disfavored treatment those student [groups] with religious ... viewpoints.” Rosenberger, supra, at 831. It is no wonder that the Court makes no attempt to defend the constitutionality of the Nondiscrimination Policy.
Unlike the Court, JUSTICE STEVENS attempts a defense, contending that the Nondiscrimination Policy is viewpoint
JUSTICE STEVENS first argues that the Nondiscrimination Policy is viewpoint neutral because it “does not regulate expression or belief at all” but instead regulates conduct. See ante, at 699 (concurring opinion). This Court has held, however, that the particular conduct at issue here constitutes a form of expression that is protected by the
JUSTICE STEVENS also maintains that the Nondiscrimination Policy is viewpoint neutral because it prohibits all groups, both religious and secular, from engaging in religious speech. See ante, at 699-700. This argument is also contrary to established law. In Rosenberger, the dissent, which JUSTICE STEVENS joined, made exactly this argument. See 515 U.S., at 895-896 (opinion of Souter, J.). The Court disagreed, holding that a policy that treated secular speech more favorably than religious speech discriminated on the
Here, the Nondiscrimination Policy permitted membership requirements that expressed a secular viewpoint. See App. 93. (For example, the Hastings Democratic Caucus and the Hastings Republicans were allowed to exclude members who disagreed with their parties’ platforms.) But religious groups were not permitted to express a religious viewpoint by limiting membership to students who shared their religious viewpoints. Under established precedent, this was viewpoint discrimination.5
It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to discriminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude students on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for member-
Sexual orientation. The Hastings Nondiscrimination Policy, as interpreted by the law school, also discriminated on the basis of viewpoint regarding sexual morality. CLS has a particular viewpoint on this subject, namely, that sexual conduct outside marriage between a man and a woman is wrongful. Hastings would not allow CLS to express this viewpoint by limiting membership to persons willing to express a sincere agreement with CLS‘s views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group‘s beliefs. A Free Love Club could require members to affirm that they reject the traditional view of sexual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination.
V
Hastings’ current policy, as announced for the first time in the brief filed in this Court, fares no better than the policy that the law school invoked when CLS‘s application was de-
It seems doubtful that Hastings’ new policy permits registered groups to condition membership eligibility on whatever “conduct requirements” they may wish to impose. If that is the school‘s current policy, it is hard to see why CLS may not be registered, for what CLS demands is that members foreswear “unrepentant participation in or advocacy of a sexually immoral lifestyle.” App. 146. That should qualify as a conduct requirement.
If it does not, then what Hastings’ new policy must mean is that registered groups may impose some, but not all, conduct requirements. And if that is the case, it is incumbent on Hastings to explain which conduct requirements are acceptable, which are not, and why CLS‘s requirement is not allowed. Hastings has made no effort to provide such an explanation.6
VI
I come now to the version of Hastings’ policy that the Court has chosen to address. This is not the policy that Hastings invoked when CLS was denied registration. Nor is it the policy that Hastings now proclaims—and presumably implements. It is a policy that, as far as the record
A
Once a state university opens a limited forum, it “must respect the lawful boundaries it has itself set.” Rosenberger, 515 U.S., at 829. Hastings’ regulations on the registration of student groups impose only two substantive limitations: A group seeking registration must have student members and must be noncommercial. App. to Pet. for Cert. 82a-83a, Hastings Board of Directors, Policies and Regulations Applying to College Activities, Organizations and Students § 34.10 (June 22, 1990) (hereinafter Hastings Regulations). Access to the forum is not limited to groups devoted to particular purposes. The regulations provide that a group applying for registration must submit an official document including “a statement of its purpose,” id., at 83a (Hastings Regulations § 34.10.A.1 (emphasis added)), but the regulations make no attempt to define the limits of acceptable purposes. The regulations do not require a group seeking registration to show that it has a certain number of members or that its program is of interest to any particular number of Hastings students. Nor do the regulations require that a group serve a need not met by existing groups.
The regulations also make it clear that the registration program is not meant to stifle unpopular speech. They proclaim that “[i]t is the responsibility of the Dean to ensure an ongoing opportunity for the expression of a variety of viewpoints.” Id., at 82a (Hastings Regulations § 33.11).
Taken as a whole, the regulations plainly contemplate the creation of a forum within which Hastings students are free to form and obtain registration of essentially the same broad range of private groups that nonstudents may form off campus. That is precisely what the parties in this case stipulated: The RSO forum “seeks to promote a diversity of viewpoints among registered student organizations, including viewpoints on religion and human sexuality.” App. 216 (emphasis added).
The way in which the RSO forum actually developed corroborates this design. As noted, Hastings had more than 60 RSOs in 2004-2005, each with its own independently devised purpose. Some addressed serious social issues; others—for example, the wine appreciation and ultimate Frisbee clubs—were simply recreational. Some organizations focused on a subject but did not claim to promote a particular viewpoint on that subject (for example, the Association of Communications, Sports & Entertainment Law); others were defined, not by subject, but by viewpoint. The forum did not have a single Party Politics Club; rather, it featured both the Hastings Democratic Caucus and the Hastings Republicans. There was no Reproductive Issues Club; the forum included separate pro-choice and pro-life organizations. Students did not see fit to create a Monotheistic Religions Club, but they have formed the Hastings Jewish Law Students Association and the Hastings Association of Muslim Law Students. In short, the RSO forum, true to its design, has allowed Hastings students to replicate on campus a broad array of private, independent, noncommercial organizations that is very similar to those that nonstudents have formed in the outside world.
There can be no dispute that this standard would not permit a generally applicable law mandating that private religious groups admit members who do not share the groups’ beliefs. Religious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.
While there can be no question that the State of California could not impose such restrictions on all religious groups in the State, the Court now holds that Hastings, a state institution, may impose these very same requirements on students who wish to participate in a forum that is designed to foster the expression of diverse viewpoints. The Court lists four justifications offered by Hastings in defense of the accept-
The Court first says that the accept-all-comers policy is reasonable because it helps Hastings to ensure that “‘leadership, educational, and social opportunities‘” are afforded to all students. Ante, at 688 (quoting Brief for Respondent Hastings College of the Law 32). The RSO forum, however, is designed to achieve these laudable ends in a very different way—by permitting groups of students, no matter how small, to form the groups they want. In this way, the forum multiplies the opportunity for students to serve in leadership positions; it allows students to decide which educational opportunities they wish to pursue through participation in extracurricular activities; and it permits them to create the “social opportunities” they desire by forming whatever groups they wish to create.
Second, the Court approves the accept-all-comers policy because it is easier to enforce than the Nondiscrimination Policy that it replaced. It would be “a daunting labor,” the Court warns, for Hastings to try to determine whether a group excluded a member based on belief as opposed to status. Ante, at 688; see also ante, at 699, n. 1 (opinion of STEVENS, J.) (referring to the “impossible task of separating out belief-based from status-based religious discrimination“).
This is a strange argument, since the Nondiscrimination Policy prohibits discrimination on substantially the same grounds as the antidiscrimination provisions of many States,7 including California, and except for the inclusion of the prohibition of discrimination based on sexual orientation, the
Third, the Court argues that the accept-all-comers policy, by bringing together students with diverse views, encourages tolerance, cooperation, learning, and the development of conflict-resolution skills. Ante, at 689. These are obviously commendable goals, but they are not undermined by permitting a religious group to restrict membership to persons who share the group‘s faith. Many religious groups impose such restrictions. See, e. g., Brief for Agudath Israel of America as Amicus Curiae 3 (“[B]ased upon millennia-old Jewish laws and traditions, Orthodox Jewish institutions ... regularly differentiate between Jews and non-Jews“). Such
Fourth, the Court observes that Hastings’ policy “incorporates—in fact, subsumes—state-law proscriptions on discrimination.” Ante, at 689. Because the
Nor is it at all clear that California law requires Hastings to deny registration to a religious group that limits membership to students who share the group‘s religious beliefs. Hastings cites no California court decision or administrative authority addressing this question. Instead, Hastings points to a statute prohibiting discrimination on specified grounds, including religion or sexual orientation, “in any program or activity conducted by” certain postsecondary educational institutions.
The authority to decide whether
In sum, Hastings’ accept-all-comers policy is not reasonable in light of the stipulated purpose of the RSO forum: to promote a diversity of viewpoints ”among“—not within—“registered student organizations.” App. 216 (emphasis added).9
B
The Court is also wrong in holding that the accept-all-comers policy is viewpoint neutral. The Court proclaims that it would be “hard to imagine a more viewpoint-neutral policy,” ante, at 694, but I would not be so quick to jump to this conclusion. Even if it is assumed that the policy is
The adoption of a facially neutral policy for the purpose of suppressing the expression of a particular viewpoint is viewpoint discrimination. See Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527, 544 (1982) (“[A] law neutral on its face still may be unconstitutional if motivated by a discriminatory purpose“). A simple example illustrates this obvious point. Suppose that a hated student group at a state university has never been able to attract more than 10 members. Suppose that the university administration, for the purpose of preventing that group from using the school grounds for meetings, adopts a new rule under which the use of its facilities is restricted to groups with more than 25 members. Al-
Here, CLS has made a strong showing that Hastings’ sudden adoption and selective application of its accept-all-comers policy was a pretext for the law school‘s unlawful denial of CLS‘s registration application under the Nondiscrimination Policy.
Shifting policies. When Hastings denied CLS‘s application in the fall of 2004, the only policy mentioned was the Nondiscrimination Policy. In July 2005, the former dean suggested in a deposition that the law school actually followed the very different accept-all-comers policy. In March of this year, Hastings’ brief in this Court rolled out still a third policy. As is recognized in the employment discrimination context, where issues of pretext regularly arise, “[s]ubstantial changes over time in [an] employer‘s proffered reason for its employment decision support a finding of pretext.” Kobrin v. University of Minnesota, 34 F. 3d 698, 703 (CA8 1994); see also, e. g., Aragon v. Republic Silver State Disposal Inc., 292 F. 3d 654, 661 (CA9 2002); Cicero v. Borg-Warner Automotive, Inc., 280 F. 3d 579, 592 (CA6 2001).
Timing. The timing of Hastings’ revelation of its new policies closely tracks the law school‘s litigation posture. When Hastings denied CLS registration, it cited only the Nondiscrimination Policy. Later, after CLS alleged that the Nondiscrimination Policy discriminated against religious groups, Hastings unveiled its accept-all-comers policy. Then, after we granted certiorari and CLS‘s opening brief challenged the constitutionality—and the plausibility—of the accept-all-comers policy, Hastings disclosed a new policy. As is true in the employment context, “[w]hen the justification for an adverse ... action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendant‘s decision.” Ibid.
Lack of documentation. When an employer has a written policy and then relies on a rule for which there is no written
Here, Hastings claims that it has had an accept-all-comers policy since 1990, but it has not produced a single written document memorializing that policy. Nor has it cited a single occasion prior to the dean‘s deposition when this putative policy was orally disclosed to either student groups interested in applying for registration or to the Office of Student Services, which was charged with reviewing the bylaws of applicant groups to ensure that they were in compliance with the law school‘s policies.
Nonenforcement. Since it appears that no one was told about the accept-all-comers policy before July 2005, it is not surprising that the policy was not enforced. The record is replete with evidence that Hastings made no effort to enforce the all-comers policy until after it was proclaimed by the former dean. See, e. g., App. to Pet. for Cert. 118a (Hastings Democratic Caucus); id., at 110a (Association of Trial Lawyers of America at Hastings); id., at 146a-147a (Vietnamese American Law Society); id., at 142a-143a (Silenced Right); App. 192 (La Raza). See generally supra, at 712-713. If the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.
The Court—understandably—sidesteps this issue. The Court states that the lower courts did not address the “argument that Hastings selectively enforces its all-comer policy,”11 that “this Court is not the proper forum to air the
Because the Court affirms the entry of summary judgment in favor of respondents, it is not clear how CLS will be able to ask the Ninth Circuit on remand to review its claim of pretext. And the argument that we should not address this issue of pretext because the Ninth Circuit did not do so is hard to take, given that the Ninth Circuit barely addressed anything, disposing of this case in precisely two sentences.
Neither of those two sentences addressed the “novel question,” ante, at 668, to which the bulk of this Court‘s opinion is devoted, i. e., whether the accept-all-comers policy is reasonable in light of the purposes of the RSO forum and is viewpoint neutral, see ante, at 683-697. If it is appropriate for us to consider that issue, then the Ninth Circuit‘s failure to address the issue of pretext should not stand in the way of review by this Court.
C
One final aspect of the Court‘s decision warrants comment. In response to the argument that the accept-all-comers policy would permit a small and unpopular group to be taken over by students who wish to silence its message, the Court states that the policy would permit a registered group to impose membership requirements “designed to ensure that students join because of their commitment to a group‘s vitality, not its demise.” Ante, at 693. With this concession, the Court tacitly recognizes that Hastings does not really have an accept-all-comers policy—it has an accept-some-
Here is an example. Not all Christian denominations agree with CLS‘s views on sexual morality and other matters. During a recent year, CLS had seven members. Suppose that 10 students who are members of denominations that disagree with CLS decided that CLS was misrepresenting true Christian doctrine. Suppose that these students joined CLS, elected officers who shared their views, ended the group‘s affiliation with the national organization, and changed the group‘s message. The new leadership would likely proclaim that the group was “vital” but rectified, while CLS, I assume, would take the view that the old group had suffered its “demise.” Whether a change represents reform or transformation may depend very much on the eye of the beholder.
JUSTICE KENNEDY takes a similarly mistaken tack. He contends that CLS “would have a substantial case on the merits if it were shown that the all-comers policy was ... used to infiltrate the group or challenge its leadership in order to stifle its views,” ante, at 706 (concurring opinion), but he does not explain on what ground such a claim could succeed. The Court holds that the accept-all-comers policy is viewpoint neutral and reasonable in light of the purposes of the RSO forum. How could those characteristics be altered by a change in the membership of one of the forum‘s registered groups? No explanation is apparent.
In the end, the Court refuses to acknowledge the consequences of its holding. A true accept-all-comers policy permits small unpopular groups to be taken over by students who wish to change the views that the group expresses. Rules requiring that members attend meetings, pay dues, and behave politely, see ante, at 693, would not eliminate this threat.
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I do not think it is an exaggeration to say that today‘s decision is a serious setback for freedom of expression in this country. Our
Notes
“Trusting in Jesus Christ as my Savior, I believe in:
- One God, eternally existent in three persons, Father, Son and Holy Spirit.
- God the Father Almighty, Maker of heaven and earth.
- The Deity of our Lord, Jesus Christ, God‘s only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.
- The presence and power of the Holy Spirit in the work of regeneration.
- The Bible as the inspired Word of God.” App. 226.