Alpha Delta Chi-Delta Chapter, et al v. Charles Reed, et al

Filing

FILED OPINION (HARRY PREGERSON, KENNETH F. RIPPLE and SUSAN P. GRABER) AFFIRMED IN PART; REVERSED IN PART; REMANDED. Judge: HP Authoring, Judge: KFR Concurring, Judge: The parties shall bear their own costs on appeal. FILED AND ENTERED JUDGMENT. [7839933]

Case: 09-55299 08/02/2011 Page: 1 of 25

ID: 7839933 DktEntry: 41-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALPHA DELTA CHI-DELTA CHAPTER,
a sorority at San Diego State
University; ALPHA GAMMA OMEGAEPSILON CHAPTER, a fraternity at
San Diego State University;
MELISSA PEREA, an individual,
FKA Melissa Travis; JACKIE LEWIS,
an individual; JAMES ROSENBERG,
an individual; DAVID SHOKAIR, an
individual,
Plaintiffs-Appellants,
and
EVERY NATION CAMPUS MINISTRIES
AT SAN DIEGO STATE UNIVERSITY, a
student organization at San Diego
State University; EVERY NATION
CAMPUS MINISTRIES AT LONG BEACH
STATE UNIVERSITY, a student
organization at California State
University, Long Beach; HALEY
HAWTHORNE, an individual; TREVOR
STOKES, an individual; GWENDOLYN
DAVIS, an individual,
Plaintiffs,
v.
CHARLES B. REED, in his official
capacity as Chancellor of the
California State University;

9979







Case: 09-55299 08/02/2011 Page: 2 of 25

9980

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

STEVEN L. WEBER, in his official
capacity as President of San Diego
State University; DOUGLAS CASE,
individually and in his official
capacity as Coordinator of
Fraternity and Sorority Life at San
Diego State University,
Defendants-Appellees,
and
F. KING ALEXANDER, in his official
capacity as President of California
State University, Long Beach;
JEFFREY KLAUS, individually and in
his official capacity as Director of
Student Life and Development at
California State University, Long
Beach,
Defendants.





No. 09-55299
D.C. No.
3:05-cv-02186LAB-AJB
OPINION



Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
November 1, 2010—Pasadena, California
Filed August 2, 2011
Before: Harry Pregerson, Kenneth F. Ripple,* and
Susan P. Graber, Circuit Judges.
*The Honorable Kenneth F. Ripple, Senior Circuit Judge for the Seventh Circuit, sitting by designation.

Case: 09-55299 08/02/2011 Page: 3 of 25

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

Opinion by Judge Pregerson;
Concurrence by Judge Ripple

9981

Case: 09-55299 08/02/2011 Page: 4 of 25

9984

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

COUNSEL
Benjamin W. Bull and Jeremy D. Tedesco, Alliance Defense
Fund, Scottsdale, Arizona; Jordan W. Lorence (argued), Alliance Defense Fund, Washington, D.C.; David A. French, Alliance Defense Fund, Columbia, Tennessee; and John M.
Stewart, Law Offices of Stewart & Stewart, Orange, California, for the plaintiffs-appellants.
Susan Westover, California State University, Office of General Counsel, Long Beach, California, for the defendantsappellees.
Steven W. Fitschen, Virginia Beach, Virginia, for amicus The
National Legal Foundation.
Elizabeth Gill, American Civil Liberties Union Foundation,
Lesbian Gay Bisexual Transgender Project, San Francisco,
California; David Blair-Loy, American Civil Liberties Union
Foundation of San Diego and Imperial Counties, San Diego,
California; James D. Esseks and Rose A. Saxe, American
Civil Liberties Union Foundation, Lesbian Gay Bisexual
Transgender Project, New York, New York; and Daniel
Mach, American Civil Liberties Union Foundation, Program
on Freedom of Religion and Belief, Washington, D.C., for
amici American Civil Liberties Union and American Civil
Liberties Union of San Diego and Imperial Counties.

Case: 09-55299 08/02/2011 Page: 5 of 25

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

9985

OPINION
PREGERSON, Circuit Judge:
The Supreme Court held in Christian Legal Society Chapter of the University of California, Hastings College of the
Law v. Martinez that a public law school does not violate the
Constitution when it “condition[s] its official recognition of a
student group—and the attendant use of school funds and
facilities—on the organization’s agreement to open eligibility
for membership and leadership to all students.” 130 S. Ct.
2971, 2978 (2010). The Court referred to the open membership requirement as an “all-comers policy” and concluded that
such a policy was a “reasonable, viewpoint-neutral condition
on access to the student-organization forum.” Id. The Court
further held that the all-comers policy did not violate the Free
Exercise Clause of the First Amendment. Id. at 2995 n.27.
The Court expressly declined to address whether 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
narrower 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 sev-

Case: 09-55299 08/02/2011 Page: 6 of 25

9986

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

eral of their officers, at San Diego State University (“San
Diego State”) in California.1
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 through 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 and meeting rooms, free public1

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.

Case: 09-55299 08/02/2011 Page: 7 of 25

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

9987

ity 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 events for recruiting new members. Further, officially recognized fraternities and sororities may be
members of one of four fraternity and sorority councils, which
grants them access to recruitment fairs, leadership conferences, and social activities organized by the councils.
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 campusrecognized 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 California 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

Case: 09-55299 08/02/2011 Page: 8 of 25

9988

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

social fraternities or sororities or to other university
living groups.
5 Cal. Code 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 not, 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., 639 F.3d 916, 921
(9th Cir. 2011). “We view the evidence in a light most favorable to the non-moving party and decide whether there are
any genuine issues of material fact and whether the district
court correctly applied the substantive law.” FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009). Although in this
case Plaintiffs and Defendants each contend that there are no
genuine issues of material fact and summary judgment is
appropriate, we may still reverse a grant of summary judgment if we find that triable facts remain. See Chevron USA,
Inc. v. Cayetano, 224 F.3d 1030, 1037 (9th Cir. 2000).

Case: 09-55299 08/02/2011 Page: 9 of 25

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

9989

DISCUSSION
I.

Free Speech and Freedom of Expressive Association

Plaintiffs argue that San Diego State’s requirement that
they comply with the nondiscrimination policy forces them to
accept non-Christian members who will “significantly impair
the message [Plaintiffs] joined together to promote.” Appellants’ Br. at 16. This, Plaintiffs claim, violates their First
Amendment right to expressive association.2 Plaintiffs also
argue that San Diego State has excluded them from an expressive forum on the basis of their religious viewpoint, in violation of their free speech rights.
The parties in their briefs disagree as to the proper standard
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. 130 S. Ct.
at 2984-86 (“[W]e are persuaded that our limited-publicforum precedents adequately respect both [the student
group’s] speech and expressive-association rights, and fairly
balance those rights against [the university’s] interests as
property owner and educational institution.”).
2

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, 530 U.S. 640, 648 (2000). San Diego State does not dispute
that Alpha Delta Chi and Alpha Gamma Omega engage in expression, so
we proceed on the assumption that Plaintiffs may invoke their right to
expressive association. But see Christian Legal Soc’y, 130 S. Ct. at 3012
(Alito, J., dissenting) (arguing that, although the First Amendment should
protect the right of student religious groups to exclude members who do
not share their faith, such protection would not extend to fraternities and
sororities).

Case: 09-55299 08/02/2011 Page: 10 of 25

9990

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

[1] A limited public forum is government property opened
for use by “ ‘certain groups or dedicated solely to the discussion of certain subjects.’ ” Id. at 2984 n.11 (quoting Pleasant
Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009)). In a
limited public forum, the government may impose restrictions
that are “reasonable in light of the purpose served by the
forum,” so long as the government does not “discriminate
against speech on the basis of its viewpoint.” Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)
(internal quotation marks omitted).
[2] Christian Legal Society held that a law school’s student
organization program is a limited public forum. 130 S. Ct. at
2984 n.12. Plaintiffs attempt to distinguish that case, contending that San Diego State’s student organization program is not
a limited public forum, but a designated public forum. A designated public forum is government property “open[ed] for
indiscriminate public use for communicative purposes.”
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508
U.S. 384, 392 (1993). Speech in a designated public forum
has significantly greater protection than speech in a limited
public forum—restrictions on speech in a designated public
forum are subject to strict scrutiny and, therefore, “ ‘must be
narrowly tailored to serve a compelling government interest.’ ” Christian Legal Soc’y, 130 S. Ct. at 2984 n.11 (quoting
Pleasant Grove City, 129 S. Ct. at 1132).
[3] 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 benefits to student groups
within its program, such as financial assistance; access to university newsletters, bulletin boards, and meeting rooms; and
the use of the university’s name and logo. Id. at 2979. In
exchange, the student groups agreed to abide by certain conditions, including an approval process and the school’s nondis-

Case: 09-55299 08/02/2011 Page: 11 of 25

ALPHA DELTA v. REED

ID: 7839933 DktEntry: 41-1

9991

crimination policy. Id. Thus, both the program in Christian
Legal Society and San Diego State’s program are not “open
for indiscriminate public use,” Lamb’s Chapel, 508 U.S. at
392, but are instead limited to certain groups—student
organizations—which is the hallmark of a limited public
forum, see Christian Legal Soc’y, 130 S. Ct. at 2984 n.11.
The fact that both the school in Christian Legal Society and
San Diego State require student groups to obtain university
approval is further indication that the student organization
programs are limited public forums. See Faith Ctr. Church
Evangelistic Ministries v. Glover, 480 F.3d 891, 909 (9th Cir.
2007) (“Requiring prior permission for access to [a] forum
demonstrates that a public forum has not been created by designation.”), abrogated on other grounds by Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7 (2008).
[4] 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. 130 S. Ct. at
2988.
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. 542 F.3d 634, 649 (9th Cir. 2008), cert. denied, 129 S.
Ct. 2866 (2009) and 129 S. Ct. 2889 (2009), overruled on
other grounds by Los Angeles County v. Humphries, 131 S.
Ct. 447 (2010). The policy prohibited the school—and, by
extension, student organizations officially approved by the

Case: 09-55299 08/02/2011 Page: 12 of 25

9992

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

school—from discriminating on various grounds such as race,
gender, and religion. Id. at 639.
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, 484 U.S. 260, 272 (1988)). Thus, we concluded that the school’s nondiscrimination policy aligned with
the school’s pedagogical goals and was a reasonable limitation in light of the purpose of the student organization program. See id.
As in Truth, we look to San Diego State’s Student Organizations Handbook to determine the purpose of the student
organization program. The section of the handbook entitled
“Principles of Community” is filled with references to diversity and nondiscrimination: “Underlying San Diego State’s
educational goals are basic values that include . . . freedom
from discrimination . . . . [We] affirm [our] positive commitment toward diversity . . . . We encourage every student organization to make a conscious effort to undertake recruitment
efforts to ensure diversity within the group’s membership and
to take steps to reach populations currently underrepresented.
. . . No organization will direct recruitment . . . toward any
one group (i.e. racial, ethnic, gender, etc.) of potential members. . . . We . . . challenge you to express yourself in a man-

Case: 09-55299 08/02/2011 Page: 13 of 25

ALPHA DELTA v. REED

ID: 7839933 DktEntry: 41-1

9993

ner that promotes and maintains the ideals of respect,
equality, diversity, and freedom from harassment.”
[5] 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 542 F.3d at 649. Requiring
student groups to adhere to a nondiscrimination policy is reasonable in light of San Diego State’s intended purpose.
[6] 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. 130 S. Ct. at 2991. The university
offered the plaintiffs access to meeting facilities, chalkboards,
and generally available bulletin boards. Id. The Court noted
that, although the plaintiffs were denied use of the student
organization program’s special means of communication, “the
advent of electronic media and social-networking sites
reduces the importance of those channels.” Id. The Court specifically cited references to internet message groups, email,
websites, Google, and MySpace. Id. The Court deemed the
availability of other means of communication “significant” to
limited-public-forum analysis. Id.
[7] 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.

Case: 09-55299 08/02/2011 Page: 14 of 25

9994

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

[8] Therefore, San Diego State’s nondiscrimination policy
is reasonable in light of the student organization program’s
purpose of promoting diversity and nondiscrimination.3
B.

Viewpoint Neutrality

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, 542
F.3d at 649-50 (ellipsis in original) (quoting Rosenberger, 515
U.S. at 829). A restriction on speech is unconstitutional if it
is “an effort to suppress expression merely because public
officials oppose the speaker’s view.” Perry Educ. Ass’n v.
Perry Local Educators’Ass’n, 460 U.S. 37, 46 (1983). How3

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.’ ” 130 S. Ct.
at 2992 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 808 (1985)).

Case: 09-55299 08/02/2011 Page: 15 of 25

ALPHA DELTA v. REED

ID: 7839933 DktEntry: 41-1

9995

ever, a restriction that “ ‘serves purposes unrelated to the content of expression’ ” and only incidentally burdens some
speakers, messages, or viewpoints, “ ‘is deemed neutral.’ ”
Christian Legal Soc’y, 130 S. Ct. at 2994 (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989)). “We thus
look to the government’s purpose as the threshold consideration.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,
763 (1994).
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, 130 S. Ct. at 2993. Such a policy “ ‘is justified without
reference to the content [or viewpoint] of the regulated
speech.’ ” Id. at 2994 (alteration in original) (quoting Ward,
491 U.S. at 791). The “all-comers requirement draws no distinction between groups based on their message or perspective.” Id. at 2993.
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

Case: 09-55299 08/02/2011 Page: 16 of 25

9996

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

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 require students to be in “agreement with our
purpose.” The Hispanic Business Student Association opens
membership to those “who support the goals and objectives”
of the organization. Plaintiffs argue that San Diego State is
discriminating against their viewpoint by allowing these secular groups to discriminate on the basis of belief, while prohibiting Plaintiffs from doing so on the basis of their religious
beliefs.
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 expression at all. See Truth, 542 F.3d
at 647 (upholding high school’s requirement that plaintiff student group comply with nondiscrimination regulations
because group “ha[d] not shown that [the school district] justifie[d] its non-discrimination policies with reference to the
content of [the group’s] message”).
[9] 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

Case: 09-55299 08/02/2011 Page: 17 of 25

ALPHA DELTA v. REED

ID: 7839933 DktEntry: 41-1

9997

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, 468 U.S.
609, 623-24 (1984) (holding that a state law prohibiting discrimination on the basis of race, color, creed, religion, disability, national origin, or sex “does not aim at the suppression of
speech [and] does not distinguish between prohibited and permitted activity on the basis of viewpoint”); Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557,
572 (1995) (stating that a public accommodations law forbidding discrimination on the basis of sexual orientation and
other grounds did not, “on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against
individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds”). Like the laws
challenged in Roberts and Hurley, San Diego State’s nondiscrimination policy does not “target speech or discriminate on
the basis of its content,” but instead serves to remove access
barriers imposed against groups that have historically been
excluded.
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. 542 F.3d at 650. Like Alpha Delta Chi and Alpha
Gamma Omega, the student group in Truth required its members to be Christian, which violated the school district’s nondiscrimination policy prohibiting discrimination based on
“race, creed,[4] color, national origin, sex, marital status, previous arrest . . . , incarceration, or physical, sensory or mental
4

The district court interpreted the reference to “creed” to mean that the
policy prohibited discrimination on the basis of religion. Truth, 542 F.3d
at 639. This ruling was not challenged on appeal. Id.

Case: 09-55299 08/02/2011 Page: 18 of 25

9998

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

disabilities.” Id. at 639, 645 (ellipsis in original). The student
group in Truth challenged its exclusion from the student organization program as a violation of various constitutional and
statutory provisions, including its First Amendment rights of
free speech and expressive association. Id. at 637.
We held that the school’s nondiscrimination policy in Truth
was neutral as to content and viewpoint.5 Id. at 647, 650.
While acknowledging that the student group may have been
attempting to convey a message via its discriminatory conduct, we found that the student group “ha[d] not shown that
the [school district] justifie[d] its non-discrimination policies
with reference to the content” of that message. Id. at 647. We
concluded that the school’s denying the plaintiff student
group access to the student organization program was “based
on [the student group’s] discriminatory membership criteria,
not the religious ‘content of the speech.’ ” Id. at 645. Thus,
“the school [was] not denying [the religious student group]
access based solely on its religious viewpoint, but rather on
its refusal to comply with the [school district’s] nondiscrimination policy.”6 Id. at 650. Truth, along with Roberts
5

Much of our analysis in Truth focused on whether the school’s exclusion of the plaintiff student group violated the Equal Access Act, 20
U.S.C. § 4071(a). See 542 F.3d at 644-48. That analysis is nonetheless relevant to the question of content and viewpoint neutrality, because the
Equal Access Act, like the First Amendment, forbids “denial of equal
access, or fair opportunity, or discrimination” based on the content (or
viewpoint) of a group’s speech. Id. at 645. Thus, in analyzing the plaintiffs’ claim under the Equal Access Act, we necessarily had to decide
whether the school’s nondiscrimination policy was content neutral. Content neutrality for purposes of the Equal Access Act is identical to content
neutrality for First Amendment claims; in Truth, we relied on First
Amendment cases to guide our analysis of content neutrality under the
Equal Access Act. See id. at 645-46 (citing Ward, 491 U.S. at 791; Widmar v. Vincent, 454 U.S. 263, 269-70 (1981); Menotti v. City of Seattle,
409 F.3d 1113, 1129 (9th Cir. 2005)).
6
In Truth, as in the instant case, several approved student groups had
non-religious belief-based membership requirements. See 542 F.3d at 648
(noting that “several [student] clubs, such as the EarthCorps and the GayStraight Alliance, require their members to support a specific political
cause”). We did not address the existence of these groups in our constitutional analysis. See id. at 650.

Case: 09-55299 08/02/2011 Page: 19 of 25

ALPHA DELTA v. REED

ID: 7839933 DktEntry: 41-1

9999

and Hurley, compels the conclusion that San Diego State’s
nondiscrimination policy is neutral as to content and viewpoint.
[10] 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, 530 U.S.
640, 659 (2000); Hurley, 515 U.S. at 572-73. Plaintiffs argue
that requiring them to accept non-Christians into their groups
“forces them to say what they do not want to say.” Appellants’ Br. at 48. Were San Diego State compelling Plaintiffs
to include non-Christians, Plaintiffs might have a sound argument. But as Christian Legal Society makes clear, there is a
difference “between policies that require action and those that
withhold benefits.” 130 S. Ct. at 2986. The Supreme Court
declined to apply the line of expressive association cases—
including Dale and Hurley—in the context of a student organization program, because the university was not forcing student groups to accept unwanted members, but only
conditioning certain benefits on the adoption of a nondiscrimination policy. Id. Instead, the Court analyzed the plaintiffs’
First Amendment challenge under the limited-public-forum
doctrine, which permits reasonable restrictions on expression
so long as they are viewpoint neutral. Id. at 2984, 2986.
Under this reasoning, San Diego State’s reasonable and
viewpoint-neutral requirement that recognized student groups
comply with its nondiscrimination policy does not violate
Plaintiffs’ right to expressive association. Plaintiffs are free to
express any message they wish, and may include or exclude
members on whatever basis they like; they simply cannot
oblige the university to subsidize them as they do so.
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

Case: 09-55299 08/02/2011 Page: 20 of 25

10000

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

impact on groups wishing to enforce exclusionary membership policies” does not render 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, 491 U.S. at
791).
[11] 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

[12] A nondiscrimination policy that is viewpoint neutral
on its face may still be unconstitutional if not applied uniformly. See Truth, 542 F.3d at 650. In Truth, we expressed
concern that “at least two groups, the Men’s Honor Club and
the Girl[s’] Honor Club, were granted [official] recognition
even though their membership is based on gender, a protected
ground under the [school district’s nondiscrimination] policy.” Id. at 648. “Thus, to the extent [the plaintiff student
group] alleges that the [school district] provided waivers to
these groups while denying them to others, and that decision
was made on the basis of religion or the religious content of
speech, [the plaintiffs have] raised a triable issue of fact.” Id.
We reversed the district court’s summary judgment and
remanded “for further proceedings on this limited issue.” Id.
Although we were not convinced the school district had acted
improperly, remand was necessary because “the record [was]
devoid of any evidence as to the actual reason that the [school
district] granted a non-discrimination waiver to the Men’s and
Girl[s’] Honor Clubs.” Id. at 648 N.2.7
7

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, 542 F.3d at 650.

Case: 09-55299 08/02/2011 Page: 21 of 25

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

10001

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 must be “members, in good standing, with the
Catholic Church.” Further, some non-religious but officially
recognized groups appear to discriminate on prohibited
grounds, in contravention of the policy. For instance, the African Student Drama Association’s constitution limits its leadership positions to students from Africa.
[13] As in Truth, the evidence that some student groups
have been granted an exemption from the nondiscrimination
policy raises a triable issue of fact. See 542 F.3d at 650. We
note that Plaintiffs’ characterization of the evidence may not
be correct. For example, it is possible that these groups were
approved inadvertently because of administrative oversight,
or that these groups have, despite the language in their applications, agreed to abide by the nondiscrimination policy. But
as it stands now, the record does not adequately explain why
some official student groups at San Diego State appear to
have membership requirements that violate the school’s nondiscrimination policy. We therefore reverse in part the district
court’s grant of summary judgment in favor of Defendants on
Plaintiffs’ free speech and expressive association claims. We
remand for consideration of the question whether San Diego
State has (1) exempted certain student groups from the nondiscrimination policy; and (2) declined to grant Plaintiffs such
an exemption because of Plaintiffs’ religious viewpoint.
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

Case: 09-55299 08/02/2011 Page: 22 of 25

10002

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

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 free 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, 494 U.S. 872, 877
(1990). However, “the Free Exercise Clause does not inhibit
enforcement of otherwise valid regulations of general application that incidentally burden religious conduct.” Christian
Legal Soc’y, 130 S. Ct. at 2995 n.27 (citing Smith, 494 U.S.
at 878-82).
Under the Equal Protection Clause of the Fourteenth
Amendment, “all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). A showing that a group “was singled out for
unequal treatment on the basis of religion” may support a
valid equal protection argument. Truth, 542 F.3d at 650.
[14] 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 their religious status. See Truth, 542 F.3d at 650.
Therefore, we reverse the district court’s grant of summary
judgment in favor of Defendants on Plaintiffs’ free exercise
and equal protection claims. We remand for further findings
as to whether San Diego State in fact exempted other student

Case: 09-55299 08/02/2011 Page: 23 of 25

ALPHA DELTA v. REED

ID: 7839933 DktEntry: 41-1

10003

groups from the nondiscrimination policy, but refused to
exempt Plaintiffs because of their religious beliefs.
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 court for further
proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND
REMANDED. The parties shall bear their own costs on
appeal.

RIPPLE, Circuit Judge, 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, 130 S. Ct. 2971, 2984 & n.10 (2010). Although this circuit has answered this question in Truth v. Kent School
District, 542 F.3d 634, 645-47 (9th Cir. 2008), it is still an
open question at the national level. Here, the factual ambiguities that prompt this court to remand to the district court may
dilute the focus of the constitutional question, at least momentarily; nevertheless, it may well be that, at some later point,

Case: 09-55299 08/02/2011 Page: 24 of 25

10004

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

this case will be an appropriate case for further Supreme
Court review.
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 slip op. at 9985. Rather,
it has required that organizations not discriminate in membership or leadership on specified 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 discrimination 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
their membership requirements in terms of shared beliefs, as
opposed to shared status. Opponents of violence against
women could limit their membership to all individuals dedicated to eradicating physical, mental or emotional abuse
against female domestic partners. A gay, lesbian and transgender students group could limit their membership to all

Case: 09-55299 08/02/2011 Page: 25 of 25

ID: 7839933 DktEntry: 41-1

ALPHA DELTA v. REED

10005

individuals dedicated to achieving equal political and social
recognition of gay, lesbian and transgender persons.
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, 542 F.3d at 645 (“Even assuming that non-Christians would be able to comply with Truth’s
view of ‘Christian character, Christian speech, Christian
behavior and Christian conduct,’ we hold that the requirement
that members possess a ‘true desire to . . . grow in a relationship with Jesus Christ’ inherently excludes non-Christians.”).
The Catholic Newman Center cannot restrict its leadership—
those who organize and lead weekly worship services—to
members in good standing of the Catholic Church without
violating the policy. Groups whose main purpose is to engage
in the exercise of religious freedoms do not possess the same
means of accommodating the heavy hand of the State.
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.