Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHRISTIAN LEGAL SOCIETY CHAPTER OF THE
UNIVERSITY OF CALIFORNIA, HASTINGS COLLEGE
OF THE LAW, AKA HASTINGS CHRISTIAN FELLOW-
SHIP v. MARTINEZ ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 08–1371. Argued April 19, 2010—Decided June 28, 2010
Respondent Hastings College of the Law (Hastings), a school within the
University of California public-school system, extends official recog
nition to student groups through its “Registered Student Organiza
tion” (RSO) program. Several benefits attend this school-approved
status, including the use of school funds, facilities, and channels of
communication, as well as Hastings’ name and logo. In exchange for
recognition, RSOs must abide by certain conditions. Critical here, all
RSOs must comply with the school’s Nondiscrimination Policy, which
tracks state law barring discrimination on a number of bases, includ
ing religion and sexual orientation. Hastings interprets this policy, as
it relates to the RSO program, to mandate acceptance of all comers:
RSOs must allow any student to participate, become a member, or
seek leadership positions, regardless of her status or beliefs.
At the beginning of the 2004–2005 academic year, the leaders of an
existing Christian RSO formed petitioner Christian Legal Society
(CLS) by affiliating with a national Christian association that char
ters student chapters at law schools throughout the country. These
chapters must adopt bylaws that, inter alia, require members and of
ficers to sign a “Statement of Faith” and to conduct their lives in ac
cord with prescribed principles. Among those tenets is the belief that
sexual activity should not occur outside of marriage between a man
and a woman. CLS interprets its bylaws to exclude from affiliation
anyone who engages in “unrepentant homosexual conduct” or holds
religious convictions different from those in the Statement of Faith.
2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Syllabus
Hastings rejected CLS’s application for RSO status on the ground
that the group’s bylaws did not comply with Hastings’ open-access
policy because they excluded students based on religion and sexual
orientation.
CLS filed this suit for injunctive and declaratory relief under 42
U.S. C. §1983, alleging that Hastings’ refusal to grant the group
RSO status violated its First and Fourteenth Amendment rights to
free speech, expressive association, and free exercise of religion. On
cross-motions for summary judgment, the District Court ruled for
Hastings. The court held that the all-comers condition on access to a
limited public forum was both reasonable and viewpoint neutral, and
therefore did not violate CLS’s right to free speech. Nor, in the
court’s view, did Hastings impermissibly impair CLS’s right to ex
pressive association: Hastings did not order CLS to admit any stu
dent, nor did the school proscribe any speech; Hastings merely placed
conditions on the use of school facilities and funds. The court also re
jected CLS’s free exercise argument, stating that the Nondiscrimina
tion Policy did not single out religious beliefs, but rather was neutral
and of general applicability. The Ninth Circuit affirmed, ruling that
the all-comers condition on RSO recognition was reasonable and
viewpoint neutral.
Held:
1. The Court considers only whether a public institution’s condi
tioning access to a student-organization forum on compliance with an
all-comers policy violates the Constitution. CLS urges the Court to
review, instead, the Nondiscrimination Policy as written—prohibiting
discrimination on enumerated bases, including religion and sexual
orientation. The policy’s written terms, CLS contends, target solely
those groups that organize around religious beliefs or that disapprove
of particular sexual behavior, and leave other associations free to
limit membership to persons committed to the group’s ideology. This
argument flatly contradicts the joint stipulation of facts the parties
submitted at the summary-judgment stage, which specified: “Hast
ings requires that [RSOs] allow any student to participate, . . . re
gardless of [her] status or beliefs. For example, the Hastings Democ
ratic Caucus cannot bar students holding Republican political beliefs
. . . .” This Court has long recognized that parties are bound by, and
cannot contradict, their stipulations. See, e.g., Board of Regents of
Univ. of Wis. System v. Southworth, 529 U.S. 217, 226. The Court
therefore rejects CLS’s attempt to escape from the stipulation and
shift its target to Hastings’ policy as written. Pp. 8–12.
2. The all-comers policy is a reasonable, viewpoint-neutral condi
tion on access to the RSO forum; it therefore does not transgress
First Amendment limitations. Pp. 12–31.
Cite as: 561 U. S. ____ (2010) 3
Syllabus
(a) The Court’s limited public forum decisions supply the appro
priate framework for assessing both CLS’s free-speech and expres
sive-association claims; those decisions recognize that a governmen
tal entity, in regulating property in its charge, may impose
restrictions on speech that are reasonable in light of the purposes of
the forum and viewpoint neutral, e.g., Rosenberger v. Rector and Visi
tors of Univ. of Va., 515 U.S. 819, 829. CLS urges the Court to apply
to its expressive-association claim a different line of cases—decisions
in which the Court has rigorously reviewed restrictions on associa
tional freedom in the context of public accommodations, e.g., Roberts
v. United States Jaycees, 468 U.S. 609, 623. But, because CLS’s ex
pressive-association and free-speech arguments merge—who speaks
on its behalf, CLS reasons, colors what concept is conveyed—it makes
little sense to treat the claims as discrete. Instead, three observa
tions lead the Court to analyze CLS’s arguments under limited
public-forum precedents.
First, the same considerations that have led the Court to apply a
less restrictive level of scrutiny to speech in limited public forums, as
compared to other environments, apply with equal force to expressive
association occurring in a limited public forum. Speech and expres
sive-association rights are closely linked. See id., at 622. When
these intertwined rights arise in exactly the same context, it would
be anomalous for a speech restriction to survive constitutional review
under the limited-public-forum test only to be invalidated as an im
permissible infringement of expressive association. Second, the strict
scrutiny the Court has applied in some settings to laws that burden
expressive association would, in practical effect, invalidate a defining
characteristic of limited public forums—the State’s authority to “re
serv[e] [them] for certain groups.” Rosenberger, 515 U.S., at 829.
Third, this case fits comfortably within the limited-public-forum
category, for CLS may exclude any person for any reason if it forgoes
the benefits of official recognition. The Court’s expressive-association
decisions, in contrast, involved regulations that compelled a group to
include unwanted members, with no choice to opt out. See, e.g., Boy
Scouts of America v. Dale, 530 U.S. 640, 648. 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. Pp. 12–17.
(b) In three cases, this Court held that public universities had
unconstitutionally singled out student groups for disfavored treat
ment because of their points of view. See Healy v. James, 408 U.S.
169; Widmar v. Vincent, 454 U.S. 263; and Rosenberger. Most re
cently and comprehensively, in Rosenberger, the Court held that a
university generally may not withhold benefits from student groups
4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Syllabus
because of their religious outlook. “Once it has opened a limited
[public] forum,” the Court emphasized, “the State must respect the
lawful boundaries it has itself set.” 515 U. S, at 829. It may “not ex
clude 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. Pp. 17–19.
(c) Hastings’ all-comers policy is reasonable, taking into account
the RSO forum’s function and “all the surrounding circumstances.”
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788,
809. Pp. 19–28.
(1) The Court’s inquiry is shaped by the educational context in
which it arises: “First Amendment rights must be analyzed in light of
the special characteristics of the school environment.” Widmar, 454
U.S., at 268, n. 5. This Court is the final arbiter of whether a public
university has exceeded constitutional constraints. The Court has,
however, cautioned courts to resist “substitut[ing] their own notions
of sound educational policy for those of . . . school authorities,” for
judges lack the on-the-ground expertise and experience of school ad
ministrators. Board of Ed. of Hendrick Hudson Central School Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 206. Because schools enjoy
“a significant measure of authority over the type of officially recog
nized activities in which their students participate,” Board of Ed. of
Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226,
240, the Court approaches its task here mindful that Hastings’ deci
sions about the character of its student-group program are due de
cent respect. Pp. 19–21.
(2) The justifications Hastings asserts in support of its all
comers policy are reasonable in light of the RSO forum’s purposes.
First, the policy ensures that the leadership, educational, and social
opportunities afforded by RSOs are available to all students. RSOs
are eligible for financial assistance drawn from mandatory student
activity fees; the policy ensures that no Hastings student is forced to
fund a group that would reject her as a member. Second, the policy
helps Hastings police the written terms of its Nondiscrimination Pol
icy without inquiring into an RSO’s motivation for membership re
strictions. CLS’s proposal that Hastings permit exclusion because of
belief but forbid discrimination due to status would impose on Hast
ings the daunting task of trying to determine whether a student or
ganization cloaked prohibited status exclusion in belief-based garb.
Third, Hastings reasonably adheres to the view that its policy, to the
extent it brings together individuals with diverse backgrounds and
beliefs, encourages tolerance, cooperation, and learning among stu
dents. Fourth, the policy incorporates state-law discrimination pro
scriptions, thereby conveying Hastings’ decision to decline to subsi
Cite as: 561 U. S. ____ (2010) 5
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dize conduct disapproved by the State. So long as a public school
does not contravene constitutional limits, its choice to advance state
law goals stands on firm footing. Pp. 21–24.
(3) Hastings’ policy is all the more creditworthy in light of the
“substantial alternative channels that remain open for [CLS-student]
communication to take place.” Perry Ed. Assn. v. Perry Local Educa
tors’ Assn., 460 U.S. 37, 53. Hastings offered CLS access to school
facilities to conduct meetings and the use of chalkboards and certain
bulletin boards to advertise events. Although CLS could not take ad
vantage of RSO-specific methods of communication, the advent of
electronic media and social-networking sites lessens the importance
of those channels. Private groups, such as fraternities and sororities,
commonly maintain a presence at universities without official school
affiliation. CLS was similarly situated: It hosted a variety of activi
ties the year after Hastings denied it recognition, and the number of
students attending those meetings and events doubled. “The variety
and type of alternative modes of access present here,” in short, “com
pare favorably with those in other [limited public] forum cases where
[the Court has] upheld restrictions.” Id., at 53–54. Pp. 24–25.
(4) CLS’s arguments that the all-comers policy is not reason
able are unavailing. CLS contends that there can be no diversity of
viewpoints in a forum when groups are not permitted to form around
viewpoints, but this argument confuses CLS’s preferred policy with
constitutional limitation—the advisability of Hastings’ policy does
not control its permissibility. A State’s restriction on access to a lim
ited public forum, moreover, “need not be the most reasonable or the
only reasonable limitation.” Cornelius, 473 U.S., at 808. CLS’s con
tention that Hastings’ policy will facilitate hostile takeovers of RSOs
by student saboteurs bent on subverting a group’s mission is more
hypothetical than real; there is no history or prospect of RSO
hijackings at Hastings. Cf. National Endowment for Arts v. Finley,
524 U.S. 569, 584. Finally, CLS’s assertion that Hastings lacks any
legitimate interest in urging religious groups not to favor co
religionists erroneously focuses on the benefits the group must forgo,
while ignoring the interests of those it seeks to fence out. Hastings,
caught in the crossfire between a group’s desire to exclude and stu
dents’ demand for equal access, may reasonably draw a line in the
sand permitting all organizations to express what they wish but no
group to discriminate in membership. Pp. 25–28.
(d) Hastings’ all-comers policy is viewpoint neutral. Pp. 28–31.
(1) The policy draws no distinction between groups based on
their message or perspective; its requirement that all student groups
accept all comers is textbook viewpoint neutral. Pp. 28–29.
(2) Conceding that the policy is nominally neutral, CLS asserts
6 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Syllabus
that it systematically—and impermissibly—burdens most heavily
those groups whose viewpoints are out of favor with the campus
mainstream. This argument fails 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. Hast
ings’ requirement that RSOs accept all comers, the Court is satisfied,
is “justified without reference to the content [or viewpoint] of the
regulated speech.” Id., at 791. It targets the act of rejecting would-be
group members without reference to the reasons motivating that be
havior. Pp. 29–31.
3. Neither lower court addressed CLS’s argument that Hastings se
lectively enforces its all-comers policy. This Court is not the proper
forum to air the issue in the first instance. On remand, the Ninth
Circuit may consider this argument if, and to the extent, it is pre
served. Pp. 31–32.
319 Fed. Appx. 645, affirmed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which STEVENS,
KENNEDY, BREYER, and SOTOMAYOR, JJ., joined. STEVENS, J., and KEN-
NEDY, J., filed concurring opinions. ALITO, J., filed a dissenting opinion,
in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined.
Cite as: 561 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1371
_________________
CHRISTIAN LEGAL SOCIETY CHAPTER OF THE UNI-
VERSITY OF CALIFORNIA, HASTINGS COLLEGE OF
THE LAW, AKA HASTINGS CHRISTIAN FELLOW-
SHIP, PETITIONER v. LEO P. MARTINEZ ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2010]
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
ties from denying student organizations access to school­
sponsored forums because of the groups’ viewpoints. See
Rosenberger v. Rector and Visitors of Univ. of Va., 515
U.S. 819 (1995); Widmar v. Vincent, 454 U.S. 263 (1981);
Healy v. James, 408 U.S. 169 (1972). This case concerns a
novel question regarding student activities at public uni­
versities: May a public law school condition its official
recognition of a student group—and the attendant use of
school funds and facilities—on the organization’s agree­
ment to open eligibility for membership and leadership to
all students?
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 relinquish­
ing the advantages of recognition, to accept members who
2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
do not share the organization’s core beliefs about religion
and sexual orientation. From the perspective of respon­
dent 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.
In accord with the District Court and the Court of Ap­
peals, we reject CLS’s First Amendment challenge. Com­
pliance with Hastings’ all-comers policy, we conclude, is a
reasonable, viewpoint-neutral condition on access to the
student-organization forum. In requiring CLS—in com­
mon with all other student organizations—to choose be­
tween welcoming all students and forgoing the benefits of
official recognition, we hold, Hastings did not transgress
constitutional limitations. CLS, it bears emphasis, seeks
not parity with other organizations, but a preferential
exemption from Hastings’ policy. The First Amendment
shields CLS against state prohibition of the organization’s
expressive activity, however exclusionary that activity
may be. But CLS enjoys no constitutional right to state
subvention of its selectivity.
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 encour­
ages 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 class­
room [to] further their education” and to help them “de­
velo[p] leadership skills.” Ibid.
Through its “Registered Student Organization” (RSO)
program, Hastings extends official recognition to student
groups. Several benefits attend this school-approved
Cite as: 561 U. S. ____ (2010) 3
Opinion of the Court
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 Student Organizations Fair
designed to advance recruitment efforts. Id., at 216–219.
In addition, RSOs may apply for permission to use the
Law School’s facilities for meetings and office space. Id.,
at 218–219. Finally, Hastings allows officially recognized
groups to use its name and logo. Id., at 216.
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 prospec­
tive 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 (Nondis­
crimination Policy), which binds RSOs, states:
“[Hastings] is committed to a policy against legally
impermissible, arbitrary or unreasonable discrimina­
tory practices. All groups, including administration,
faculty, student governments, [Hastings]-owned stu­
dent residence facilities and programs sponsored by
[Hastings], are governed by this policy of nondis­
——————
1 These policies and regulations address a wide range of matters, for
example, alcoholic beverages at campus events, bake sales, and blood
drives. App. 246.
4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
crimination. [Hasting’s] 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 nondis­
crimination policy covers admission, access and
treatment in Hastings-sponsored programs and activi­
ties.” Id., at 220.
Hastings interprets the Nondiscrimination Policy, as it
relates to the RSO program, to mandate acceptance of all
comers: School-approved groups must “allow any student
to participate, become a member, or seek leadership posi­
tions in the organization, regardless of [her] status or
beliefs.” Id., at 221.2 Other law schools have adopted
similar all-comers policies. See, e.g., Georgetown Univer­
sity Law Center, Office of Student Life: Student Organi
zations, available at http://www.law.georgetown.edu/
StudentLife/StudentOrgs/NewGroup.htm (All Internet
——————
2 “Th[is] policy,” Hastings clarifies, “does not foreclose neutral and
generally applicable membership requirements unrelated to ‘status or
beliefs.’ ” Brief for Hastings 5. So long as all students have the oppor
tunity to participate on equal terms, RSOs may require them, inter alia,
to pay dues, maintain good attendance, refrain from gross misconduct,
or pass a skill-based test, such as the writing competitions adminis­
tered by law journals. See ibid. The dissent trumpets these neutral,
generally applicable membership requirements, arguing that, in truth,
Hastings has a “some-comers,” not an all-comers, policy. Post, at 2, 3,
8–9, 10, 23–24, 32–33 (opinion of ALITO, J.). Hastings’ open-access
policy, however, requires only that student organizations open eligibil­
ity for membership and leadership regardless of a student’s status or
beliefs; dues, attendance, skill measurements, and comparable uni­
formly applied standards are fully compatible with the policy. The
dissent makes much of Hastings’ observation that groups have imposed
“even conduct requirements.” Post, at 9, 23–24. But the very example
Hastings cites leaves no doubt that the Law School was referring to
boilerplate good-behavior standards, e.g., “[m]embership may cease . . .
if the member is found to be involved in gross misconduct,” App. 173
(cited in Brief for Hastings 5).
Cite as: 561 U. S. ____ (2010) 5
Opinion of the Court
materials as visited June 24, 2010, and included in Clerk
of Court’s case file) (Membership in registered groups
must be “open to all students.”); Hofstra Law School Stu­
dent Handbook 2009–2010, p. 49, available at http://
law.hofstra.edu/pdf/StudentLife/StudentAffairs/Handbook/
stuhb_handbook.pdf (“[Student] organizations are open to
all students.”). From Hastings’ adoption of its Nondis­
crimination Policy in 1990 until the events stirring this
litigation, “no student organization at Hastings . . . ever
sought an exemption from the Policy.” App. 221.
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 homosex­
——————
3 The Statement of Faith provides:
“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.
6 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
ual 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 because CLS barred students based on religion and
sexual orientation. Id., at 228.
CLS formally requested an exemption from the Nondis­
crimination Policy, id., at 281, but Hastings declined to
grant one. “[T]o be one of our student-recognized organi­
zations,” Hastings reiterated, “CLS must open its mem­
bership to all students irrespective of their religious be­
liefs 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, sev­
eral 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 42 U.S. C.
Cite as: 561 U. S. ____ (2010) 7
Opinion of the Court
§1983. Its complaint alleged that Hastings’ refusal to
grant the organization RSO status violated CLS’s First
and Fourteenth Amendment rights to free speech, expres­
sive association, and free exercise of religion. The suit
sought injunctive and declaratory relief.4
On cross-motions for summary judgment, the U. S.
District Court for the Northern District of California ruled
in favor of Hastings. The Law School’s all-comers condi­
tion on access to a limited public forum, the court held,
was both reasonable and viewpoint neutral, and therefore
did not violate CLS’s right to free speech. App. to Pet. for
Cert. 27a–38a.
Nor, in the District Court’s view, did the Law School
impermissibly impair CLS’s right to expressive associa­
tion. “Hastings is not directly ordering CLS to admit [any]
studen[t],” the court observed, id., at 42a; “[r]ather, Hast­
ings has merely placed conditions on” the use of its facili­
ties and funds, ibid. “Hastings’ denial of official recogni­
tion,” 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 orien­
tation,” 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:
——————
4 The District Court allowed respondent Hastings Outlaw, an RSO
committed to “combating discrimination based on sexual orientation,”
id., at 97, to intervene in the suit, id., at 104.
8 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
“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).” Chris
tian Legal Soc. Chapter of Univ. of Cal. v. Kane, 319
Fed. Appx. 645, 645–646 (CA9 2009).
We granted certiorari, 558 U. S. ____ (2009), and now
affirm the Ninth Circuit’s judgment.
II
Before considering the merits of CLS’s constitutional
arguments, we must resolve a preliminary issue: CLS
urges us to review the Nondiscrimination Policy as writ­
ten—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 con­
tends, “targe[t] solely those groups whose beliefs are based
on religion or that disapprove of a particular kind of sex­
ual 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 organiza­
tions allow any student to participate, become a mem­
ber, or seek leadership positions in the organization,
Cite as: 561 U. S. ____ (2010) 9
Opinion of the Court
regardless of [her] status or beliefs. Thus, for exam­
ple, the Hastings Democratic Caucus cannot bar stu­
dents holding Republican political beliefs from becom­
ing members or seeking leadership positions in the
organization.” App. 221 (Joint Stipulation ¶18) (em­
phasis added; citations omitted).5
Under the District Court’s local rules, stipulated facts are
deemed “undisputed.” Civil Local Rule 56–2 (ND Cal.
2010). See also Pet. for Cert. 2 (“The material facts of this
case are undisputed.”).6
——————
5 In its briefs before the District Court and the Court of Appeals, CLS
several times affirmed that Hastings imposes an all-comers rule on
RSOs. See, e.g., Plaintiff’s Notice of Motion for Summary Judgment
and Memorandum in Support of Motion for Summary Judgment in No.
C 04 4484 JSW (ND Cal.), p. 4 (“Hastings interprets the [Nondiscrimi­
nation Policy] such that student organizations must allow any student,
regardless of their status or beliefs, to participate in the group’s activi­
ties and meetings and to become voting members and leaders of the
group.”); Brief for Appellant in No. 06–15956 (CA9), pp. 29–30 (“Hast­
ings illustrates the application of the Nondiscrimination Policy by
explaining that for the Hastings Democratic Caucus to gain recogni­
tion, it must open its leadership and voting membership to Republi­
cans.”). In a hearing before the District Court, CLS’s counsel reiterated
that “it’s important to understand what Hastings’ policy is. According
to . . . the stipulated facts, 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. 438 (capitalization and internal quotation marks
omitted). And at oral argument in this Court, counsel for CLS ac­
knowledged that “the Court needs to reach the constitutionality of the
all-comers policy as applied to CLS in this case.” Tr. of Oral Arg. 59
(emphasis added). We repeat, in this regard, that Hastings’ all-comers
policy is hardly novel. Other law schools have adopted similar re­
quirements. See supra, at 4–5; Brief for Association of American Law
Schools as Amicus Curiae 20, n. 5.
6 The dissent spills considerable ink attempting to create uncertainty
about when the all-comers policy was adopted. See post, at 2, 3, 5, 6, 7,
8, 10, 11. What counts, however, is the parties’ unqualified agreement
that the all-comers policy currently governs. CLS’s suit, after all, seeks
only declaratory and injunctive—that is, prospective—relief. See App.
10 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
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Opinion of the Court
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 is the bookend to a party’s undertaking to be
bound by the factual stipulations it submits. See post, at
10 (ALITO, J., dissenting) (agreeing that “the parties must
be held to their Joint Stipulation”). As a leading legal
reference summarizes:
“[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).
——————
80 (First Amended Verified Complaint for Declaratory and Injunctive
Relief).
7 Record evidence, moreover, corroborates the joint stipulation con­
cerning Hastings’ all-comers policy. The Law School’s then-Chancellor
and Dean testified, for example, that “in order to be a registered stu­
dent organization you have to allow all of our students to be members
and full participants if they want to.” App. 343. Hastings’ Director of
Student Services confirmed that RSOs must “be open to all students”—
“even to students who may disagree with [an RSO’s] purposes.” Id., at
320 (internal quotation marks omitted). See also id., at 349 (“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.”).
Cite as: 561 U. S. ____ (2010) 11
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Time and again, the dissent races away from the facts to
which CLS stipulated. See, e.g., post, at 2, 3, 5, 6, 7, 8, 11,
24.8 But factual stipulations are “formal concessions . . .
that have the effect of withdrawing a fact from issue and
dispensing wholly with the need for proof of the fact.
Thus, a judicial admission . . . is conclusive in the case.” 2
K. Broun, McCormick on Evidence §254, p. 181 (6th ed.
2006) (footnote omitted). See also, e.g., Oscanyan v. Arms
Co., 103 U.S. 261, 263 (1881) (“The power of the court to
act in the disposition of a trial upon facts conceded by
counsel is as plain as its power to act upon the evidence
produced.”).9
In light of the joint stipulation, both the District Court
and the Ninth Circuit trained their attention on the con­
stitutionality 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
——————
8 In an effort to undermine the stipulation, the dissent emphasizes a
sentence in Hastings’ answer to CLS’s first amended complaint which,
the dissent contends, casts doubt on Hastings’ fidelity to its all-comers
policy. See post, at 5–6, 11. In context, Hastings’ answer—which
responded to CLS’s allegation that the Law School singles out religious
groups for discriminatory treatment—is sensibly read to convey that
Hastings’ policies and regulations apply to all groups equally. See App.
79 (denying that the Nondiscrimination Policy imposes on religious
organizations restraints that are not applied to political, social, and
cultural groups). In any event, the parties’ joint stipulation supersedes
the answer, to the extent of any conflict between the two filings. See
Pepper & Tanner, Inc. v. Shamrock Broadcasting, Inc., 563 F.2d 391,
393 (CA9 1977) (Parties’ “stipulation of facts . . . superseded all prior
pleadings and controlled the subsequent course of the action.”).
9 The dissent indulges in make-believe when it suggests that we are
making factual findings about Hastings’ all-comers policy. Post, at 1, 2.
As CLS’s petition for certiorari stressed, “[t]he material facts of this case
are undisputed.” Pet. for Cert. 2 (emphasis added). We take the facts
as the joint stipulation describes them, see supra, at 8–11; our decision
respects, while the dissent ignores, the conclusive effect of the parties’
accord.
12 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
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Opinion of the Court
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 expressive association, CLS draws on two lines of
decisions. First, in a progression of cases, this Court has
employed forum analysis to determine when a governmen­
tal entity, in regulating property in its charge, may place
limitations on speech.11 Recognizing a State’s right “to
preserve the property under its control for the use to
which it is lawfully dedicated,” Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985) (inter­
——————
10 The dissent, in contrast, devotes considerable attention to CLS’s
arguments about the Nondiscrimination Policy as written. Post, at 2, 3,
5, 18–23. We decline to address these arguments, not because we agree
with the dissent that the Nondiscrimination Policy is “plainly” uncon­
stitutional, post, at 18, but because, as noted, supra, at 8–12, that
constitutional question is not properly presented.
11 In conducting forum analysis, our decisions have sorted govern­
ment property into three categories. First, in traditional public forums,
such as public streets and parks, “any restriction based on the content
of . . . speech must satisfy strict scrutiny, that is, the restriction must
be narrowly tailored to serve a compelling government interest.”
Pleasant Grove City v. Summum, 555 U. S. ___ (2009) (slip op., at 6).
Second, governmental entities create designated public forums when
“government property that has not traditionally been regarded as a
public forum is intentionally opened up for that purpose”; speech
restrictions in such a forum “are subject to the same strict scrutiny as
restrictions in a traditional public forum.” Id., at ___ (slip op., at 7).
Third, governmental entities establish limited public forums by opening
property “limited to use by certain groups or dedicated solely to the
discussion of certain subjects.” Ibid. As noted in text, “[i]n such a
forum, a governmental entity may impose restrictions on speech that
are reasonable and viewpoint-neutral.” Ibid.
Cite as: 561 U. S. ____ (2010) 13
Opinion of the Court
nal quotation marks omitted), the Court has permitted
restrictions on access to a limited public forum, like the
RSO program here, with this key caveat: Any access bar­
rier must be reasonable and viewpoint neutral, e.g.,
Rosenberger, 515 U.S., at 829. See also, e.g., Good News
Club v. Milford Central School, 533 U.S. 98, 106–107
(2001); Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U.S. 384, 392–393 (1993); Perry Ed.
Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46
(1983).12
Second, as evidenced by another set of decisions, this
Court has rigorously reviewed laws and regulations that
constrain associational freedom. In the context of public
accommodations, we have subjected restrictions on that
freedom to close scrutiny; such restrictions are permitted
only if they serve “compelling state interests” that are
“unrelated to the suppression of ideas”—interests that
cannot be advanced “through . . . significantly less restric­
tive [means].” Roberts v. United States Jaycees, 468 U.S.
609, 623 (1984). See also, e.g., Boy Scouts of America v.
Dale, 530 U.S. 640, 648 (2000). “Freedom of association,”
we have recognized, “plainly presupposes a freedom not to
associate.” Roberts, 468 U.S., at 623. Insisting that an
organization embrace unwelcome members, we have
therefore concluded, “directly and immediately affects
associational rights.” Dale, 530 U.S., at 659.
CLS would have us engage each line of cases independ­
ently, but its expressive-association and free-speech ar­
guments 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
——————
12 Our decisions make clear, and the parties agree, that Hastings,
through its RSO program, established a limited public forum. See
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829
(1995); Tr. of Oral Arg. 24 (counsel for CLS); Brief for Petitioner 25–26;
Brief for Hastings 27–28; Brief for Hastings Outlaw 27.
14 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
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Opinion of the Court
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). In­
stead, three observations lead us to conclude that our
limited-public-forum precedents supply the appropriate
framework for assessing both CLS’s speech and associa­
tion 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 12–13, and n. 11, apply with equal force to ex­
pressive association occurring in limited public forums. As
just noted, speech and expressive-association rights are
closely linked. See Roberts, 468 U.S., at 622 (Associa­
tional freedom is “implicit in the right to engage in activi­
ties protected by the First Amendment.”). When these
intertwined rights arise in exactly the same context, it
would be anomalous for a restriction on speech to survive
constitutional review under our limited-public-forum test
only to be invalidated as an impermissible infringement of
expressive association. Accord Brief for State Universities
and State University Systems as Amici Curiae 37–38.
That result would be all the more anomalous in this case,
for CLS suggests that its expressive-association claim
plays a part auxiliary to speech’s starring role. See Brief
for Petitioner 18.
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]
Cite as: 561 U. S. ____ (2010) 15
Opinion of the Court
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, ordinar­
ily, 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 (“Associa­
tional activities need not be tolerated where they infringe
reasonable campus rules.”).
Third, this case fits comfortably within the limited­
public-forum category, for CLS, in seeking what is effec­
tively a state subsidy, faces only indirect pressure to mod­
ify its membership policies; CLS may exclude any person
for any reason if it forgoes the benefits of official recogni­
tion.13 The expressive-association precedents on which
CLS relies, in contrast, involved regulations that com
pelled a group to include unwanted members, with no
choice to opt out. See, e.g., Dale, 530 U.S., at 648 (regula­
tion “forc[ed] [the Boy Scouts] to accept members it [did]
not desire” (internal quotation marks omitted)); Roberts,
——————
13 The fact that a university “expends funds to encourage a diversity
of views from private speakers,” this Court has held, does not justify it
in “discriminat[ing] based on the viewpoint of private persons whose
speech it facilitates.” Rosenberger, 515 U.S., at 834. Applying limited­
public-forum analysis (which itself prohibits viewpoint discrimination)
to CLS’s expressive association claim, we emphasize, does not upset
this principle.
16 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
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Opinion of the Court
468 U.S., at 623 (“There can be no clearer example of
an intrusion into the internal structure or affairs of
an association than” forced inclusion of unwelcome
participants.). 14
In diverse contexts, our decisions have distinguished
between policies that require action and those that with­
hold 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 ac­
counts for the fact that Hastings, through its RSO pro­
gram, 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 tol­
eration 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
——————
14 CLS also brackets with expressive-association precedents our deci­
sion in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U.S. 557 (1995). There, a veterans group sponsoring
a St. Patrick’s Day parade challenged a state law requiring it to allow
gay individuals to march in the parade behind a banner celebrating
their Irish heritage and sexual orientation. Id., at 572. In evaluating
that challenge, the Hurley Court focused on the veterans group’s
interest in controlling the message conveyed by the organization. See
id., at 573–581. Whether Hurley is best conceptualized as a speech or
association case (or both), however, that precedent is of little help to
CLS. Hurley involved the application of a statewide public­
accommodations law to the most traditional of public forums: the
street. That context differs markedly from the limited public forum at
issue here: a university’s application of an all-comers policy to its
student-organization program.
Cite as: 561 U. S. ____ (2010) 17
Opinion of the Court
instant dispute, therefore, with the limited-public-forum
decisions as our guide.
B
As earlier pointed out, supra, at 1, 12–13, we do not
write on a blank slate; we have three times before consid­
ered clashes between public universities and student
groups seeking official recognition or its attendant bene­
fits. First, in Healy, a state college denied school affilia­
tion 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 disrup­
tive, and finding the organization’s philosophy repugnant,
the college completely banned the SDS chapter from cam­
pus; 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 cam­
pus 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 it finds the views
expressed by [a] group to be abhorrent.” Id., at 187–188.15
——————
15 The dissent relies heavily on Healy, post, at 13–17, but its other­
wise exhaustive account of the case elides the very fact the Healy Court
identified as dispositive: The president of the college explicitly denied
the student group official recognition because of the group’s viewpoint.
See 408 U. S, at 187 (“The mere disagreement of the President with the
group’s philosophy affords no reason to deny it recognition.”). In this
case, in contrast, Hastings denied CLS recognition not because the
school wanted to silence the “viewpoint that CLS sought to express
through its membership requirements,” post, at 17, n. 2, but because
CLS, insisting on preferential treatment, declined to comply with the
open-access policy applicable to all RSOs, see R. A. V. v. St. Paul, 505
U.S. 377, 390 (1992) (“Where the [State] does not target conduct on the
18 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
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Opinion of the Court
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. 454 U.S., at 264–265. “A univer­
sity’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 mis­
sion 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 sub­
jected the university’s regulation to strict scrutiny. Id., at
269–270. The school’s interest “in maintaining strict
separation of church and State,” we held, was not “suffi­
ciently compelling to justify . . . [viewpoint] discrimination
against . . . religious speech.” Id., at 270, 276 (internal
quotation marks omitted).
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 Rosen
berger was denied student-activity-fee funding to distrib­
——————
basis of its expressive content, acts are not shielded from regulation
merely because they express a discriminatory . . . philosophy.” (emphasis
added)). As discussed infra, at 28–31, Hastings’ all-comers policy is
paradigmatically viewpoint neutral. The dissent’s contention that “the
identity of the student group” is the only “way of distinguishing Healy,”
post, at 16, is thus untenable.
The dissent’s description of Healy also omits the Healy Court’s
observation that “[a] college administration may . . . requir[e] . . . that a
group seeking official recognition affirm in advance its willingness to
adhere to reasonable campus law. Such a requirement does not impose
an impermissible condition on the students’ associational rights. . . . It
merely constitutes an agreement to conform with reasonable standards
respecting conduct. . . . [T]he benefits of participation in the internal
life of the college community may be denied to any group that reserves
the right to violate any valid campus rules with which it disagrees.”
408 U.S., at 193–194.
Cite as: 561 U. S. ____ (2010) 19
Opinion of the Court
ute 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 journal­
istic 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 bounda­
ries it has itself set.” Id., at 829. The constitutional con­
straints on the boundaries the State may set bear repeti­
tion 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 ob­
served, “must be analyzed in light of the special character­
istics of the school environment.” Widmar, 454 U.S., at
268, n. 5 (internal quotation marks omitted). This Court
is the final arbiter of the question whether a public uni­
versity has exceeded constitutional constraints, and we
owe no deference to universities when we consider that
question. Cf. Pell v. Procunier, 417 U.S. 817, 827 (1974)
(“Courts cannot, of course, abdicate their constitutional
20 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
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Opinion of the Court
responsibility to delineate and protect fundamental liber­
ties.”). Cognizant that judges lack the on-the-ground
expertise and experience of school administrators, how­
ever, we have cautioned courts in various contexts to
resist “substitut[ing] their own notions of sound educa­
tional policy for those of the school authorities which they
review.” Board of Ed. of Hendrick Hudson Central School
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206
(1982). See also, e.g., Hazelwood School Dist. v. Kuhl
meier, 484 U.S. 260, 273 (1988) (noting our “oft-expressed
view that the education of the Nation’s youth is primarily
the responsibility of parents, teachers, and state and local
school officials, and not of federal judges”); Healy, 408
U.S., at 180 (“[T]his Court has long recognized ‘the need
for affirming the comprehensive authority of the States
and of school officials, consistent with fundamental consti­
tutional safeguards, to prescribe and control conduct in
the schools.’ ” (quoting Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 507 (1969))).
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” (inter­
nal quotation marks omitted)). Schools, we have empha­
sized, enjoy “a significant measure of authority over the
type of officially recognized activities in which their stu­
dents participate.” Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U.S. 226, 240 (1990).
We therefore “approach our task with special caution,”
Healy, 408 U.S., at 171, mindful that Hastings’ decisions
about the character of its student-group program are due
Cite as: 561 U. S. ____ (2010) 21
Opinion of the Court
decent respect.16
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 policy “ensures that the leadership, educational,
and social opportunities afforded by [RSOs] are available
——————
16 The dissent mischaracterizes the nature of the respect we accord to
Hastings. See post, at 1, 15–16, 27. As noted supra, at 19–20, this
Court, exercising its independent judgment, must “interpre[t] and
appl[y] . . . the right to free speech.” Post, at 16. But determinations of
what constitutes sound educational policy or what goals a student­
organization forum ought to serve fall within the discretion of school
administrators and educators. See, e.g., Board of Ed. of Hendrick
Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176,
206 (1982).
17 Although the dissent maintains it is “content to address the consti­
tutionality of Hastings’ actions under our limited public forum cases,”
post, at 17, it resists the import of those cases at every turn. For
example, although the dissent acknowledges that a university has the
authority to set the boundaries of a limited public forum, post, at 17, 24,
the dissent refuses to credit Hastings’ all-comers policy as one of those
boundaries. See ibid. (insisting that “Hastings’ regulations . . . impose
only two substantive limitations: A group . . . must have student
members and must be non-commercial.”). In short, “the design of the
RSO forum,” post, at 26, which the dissent discusses at length, post, at
24–31, is of its own tailoring.
Another example: The dissent pointedly observes that “[w]hile there
can be no question that the State of California could not impose [an all­
comers] restrictio[n] 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.” Post, at 27. As
noted supra, at 12–13, and n. 11, this difference reflects the lesser
standard of scrutiny applicable to limited public forums compared to
other forums. The dissent fights the distinction between state prohibi
tion and state support, but its real quarrel is with our limited public
forum doctrine, which recognizes that distinction. CLS, it bears repeti­
tion, remains free to express whatever it will, but it cannot insist on an
exemption from Hastings’ embracive all-comers policy.
22 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
to all students.” Brief for Hastings 32; see Brief for
American Civil Liberties Union et al. as Amici Curiae 11.
Just as “Hastings does not allow its professors to host
classes open only to those students with a certain status or
belief,” so the Law School may decide, reasonably in our
view, “that the . . . educational experience is best promoted
when all participants in the forum must provide equal
access to all students.” Brief for Hastings 32. RSOs,
we count it significant, are eligible for financial assist-
ance drawn from mandatory student-activity fees, see
supra, at 3; the all-comers policy ensures that no Hastings
student is forced to fund a group that would reject her as a
member.18
Second, the all-comers requirement helps Hastings
police the written terms of its Nondiscrimination Policy
without inquiring into an RSO’s motivation for member­
ship restrictions. To bring the RSO program within CLS’s
view of the Constitution’s limits, CLS proposes that Hast­
ings permit exclusion because of belief but forbid discrimi­
nation 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 presi­
dency, 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?
This case itself is instructive in this regard. CLS con­
tends that it does not exclude individuals because of sex­
——————
18 CLS notes that its “activities—its Bible studies, speakers, and din­
ners—are open to all students,” even if attendees are barred from
membership and leadership. Reply Brief 20. Welcoming all comers as
guests or auditors, however, is hardly equivalent to accepting all
comers as full-fledged participants.
Cite as: 561 U. S. ____ (2010) 23
Opinion of the Court
ual orientation, but rather “on the basis of a conjunction of
conduct and the belief that the conduct is not wrong.”
Brief for Petitioner 35–36 (emphasis deleted). Our deci­
sions have declined to distinguish between status and
conduct in this context. See Lawrence v. Texas, 539 U.S.
558, 575 (2003) (“When homosexual conduct is made
criminal by the law of the State, that declaration in and of
itself is an invitation to subject homosexual persons to
discrimination.” (emphasis added)); id., at 583 (O’Connor,
J., concurring in judgment) (“While it is true that the law
applies only to conduct, the conduct targeted by this law is
conduct that is closely correlated with being homosexual.
Under such circumstances, [the] law is targeted at more
than conduct. It is instead directed toward gay persons as
a class.”); cf. Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is
a tax on Jews.”). See also Brief for Lambda Legal Defense
and Education Fund, Inc., et al. as Amici Curiae 7–20.
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, “encour­
ages tolerance, cooperation, and learning among stu­
dents.” 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 the Law School’s decision “to decline to subsidize
with public monies and benefits conduct of which the
——————
19 CLS’s predecessor organization, the Hastings Christian Fellowship
(HCF), experienced these benefits first-hand when it welcomed an
openly gay student as a member during the 2003–2004 academic year.
That student, testified another HCF member, “was a joy to have” in the
group and brought a unique perspective to Bible-study discussions. See
App. 325, 327.
24 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
people of California disapprove.” Brief for Hastings 35;
id., at 33–34 (citing Cal. Educ. Code §66270 (prohibiting
discrimination on various bases)). State law, of course,
may not command that public universities take action
impermissible under the First Amendment. But so long as
a public university does not contravene constitutional
limits, its choice to advance state-law goals through the
school’s educational endeavors stands on firm footing.
In sum, the several justifications Hastings asserts in
support of its all-comers requirement are surely reason­
able 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 sig­
nificant 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 facili­
ties 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 3,
the advent of electronic media and social-networking sites
reduces the importance of those channels. See App. 114–
——————
20 Although the Law School has offered multiple justifications for its
all-comers policy, we do not suggest that each of them is necessary for
the policy to survive constitutional review.
Cite as: 561 U. S. ____ (2010) 25
Opinion of the Court
115 (CLS maintained a Yahoo! message group to dissemi­
nate information to students.); Christian Legal Society v.
Walker, 453 F.3d 853, 874 (CA7 2006) (Wood, J., dissent­
ing) (“Most universities and colleges, and most college­
aged students, communicate through email, websites, and
hosts like MySpace . . . . If CLS had its own website, any
student at the school with access to Google—that is, all of
them—could easily have found it.”). See also Brief for
Associated Students of the University of California, Hast­
ings College of Law as Amicus Curiae 14–18 (describing
host of ways CLS could communicate with Hastings’ stu­
dents outside official channels).
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 de­
nied 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 pre­
sent 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 21, n. 17, constantly to maintain that nonrecog­
nition of a student organization is equivalent to prohibit­
ing its members from speaking.
——————
21 See, e.g., Baker, Despite Lack of University Recognition, Pi Kappa
Theta Continues to Grow, The New Hampshire, Sept. 28, 2009, pp. 1, 5
(unrecognized fraternity able to grow despite severed ties with the
University of New Hampshire); Battey, Final Clubs Provide Controver­
sial Social Outlet, Yale Daily News, Apr. 5, 2006, pp. 1, 4 (Harvard
social clubs, known as “final clubs,” “play a large role in the experience
of . . . students” even though “they became completely disassociated
from the university in 1984”).
26 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
4
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 25 (ALITO, J., dissenting). This catchphrase
confuses CLS’s preferred policy with constitutional limita­
tion—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 organiza­
tions must open their arms to all, CLS contends, saboteurs
will infiltrate groups to subvert their mission and mes­
sage. 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
——————
22 CLS’s concern, shared by the dissent, see post, at 25–26, that an
all-comers policy will squelch diversity has not been borne out by
Hastings’ experience. In the 2004–2005 academic year, approximately
60 student organizations, representing a variety of interests, registered
with Hastings, from the Clara Foltz Feminist Association, to the
Environmental Law Society, to the Hastings Chinese Law and Culture
Society. App. 215, 237–238. Three of these 60 registered groups had a
religious orientation: Hastings Association of Muslim Law Students,
Hastings Jewish Law Students Association, and Hastings Koinonia.
Id., at 215–216.
 Cite as: 561 U. S. ____ (2010) 27
Opinion of the Court
seek leadership positions in—groups pursuing missions
wholly at odds with their personal beliefs. And if a rogue
student intent on sabotaging an organization’s objectives
nevertheless attempted a takeover, the members of that
group would not likely elect her as an officer.
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 be­
cause of their commitment to a group’s vitality, not its
demise. See supra, at 4, 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 educa­
tional 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
——————
23 As Hastings notes, other “checks [are also] in place” to prevent
RSO-sabotage. Brief for Hastings 43, n. 16. “The [Law] School’s
student code of conduct applies to RSO activities and, inter alia, prohib­
its obstruction or disruption, disorderly conduct, and threats.” Ibid.
(internal quotation marks and brackets omitted).
28 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
29) that the Law School lacks any legitimate interest—let
alone one reasonably related to the RSO forum’s pur­
poses—in urging “religious groups not to favor co­
religionists for purposes of their religious activities.” Brief
for Petitioner 43; id., at 50. CLS’s analytical error lies in
focusing on the benefits it must forgo while ignoring the
interests of those it seeks to fence out: Exclusion, after all,
has two sides. Hastings, caught in the crossfire between a
group’s desire to exclude and students’ demand for equal
access, may reasonably draw a line in the sand permitting
all organizations to express what they wish but no group
to discriminate in membership.24
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 17–19, 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
——————
24 In arguing that the all-comers policy is not reasonable in light of
the RSO forum’s purposes, the dissent notes that Title VII, which
prohibits employment discrimination on the basis of religion, among
other categories, provides an exception for religious associations. Post,
at 28, n. 8. The question here, however, is not whether Hastings could,
consistent with the Constitution, provide religious groups dispensation
from the all-comers policy by permitting them to restrict membership to
those who share their faith. It is instead whether Hastings must grant
that exemption. This Court’s decision in Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872, 878–882 (1990),
unequivocally answers no to that latter question. See also infra, at 31,
n. 27.
Cite as: 561 U. S. ____ (2010) 29
Opinion of the Court
points of view, Hastings’ all-comers requirement draws no
distinction between groups based on their message or
perspective. An all-comers condition on access to RSO
status, in short, is textbook viewpoint neutral.25
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 Peti­
tioner 51; cf. post, at 1 (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
——————
25 Relying exclusively on Board of Regents of Univ. of Wis. System v.
Southworth, 529 U.S. 217 (2000), the dissent “would not be so quick to
jump to th[e] conclusion” that the all-comers policy is viewpoint neu­
tral. Post, at 31, and 31–32, n. 10. Careful consideration of South
worth, however, reveals how desperate the dissent’s argument is. In
Southworth, university students challenged a mandatory student­
activity fee used to fund student groups. Finding the political and
ideological speech of certain groups offensive, the student-challengers
argued that imposition of the fee violated their First Amendment
rights. 529 U.S., at 221. This Court upheld the university’s choice to
subsidize groups whose expression some students found distasteful, but
we admonished that the university could not “prefer some viewpoints to
others” in the distribution of funds. Id., at 233. We cautioned that the
university’s referendum process, which allowed students to vote on
whether a student organization would receive financial support, risked
violation of this principle by allowing students to select groups to fund
based on their viewpoints. Id., at 235. In this case, in contrast, the all­
comers policy governs all RSOs; Hastings does not pick and choose
which organizations must comply with the policy on the basis of view­
point. App. 221. Southworth accordingly provides no support for the
dissent’s warped analysis.
30 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
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 a particular viewpoint does not itself
render the injunction content or viewpoint based.”).
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 regula­
tion 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 nondis­
crimination 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 and emphasis
omitted). The Law School’s policy aims at the act of reject­
ing would-be group members without reference to the
reasons motivating that behavior: Hastings’ “desire to
redress th[e] perceived harms” of exclusionary member­
ship 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 confus­
ing its own viewpoint-based objections to . . . nondiscrimi­
nation laws (which it is entitled to have and [to] voice)
with viewpoint discrimination.” Brief for Hastings 31.26
——————
26 Although registered student groups must conform their conduct to
Cite as: 561 U. S. ____ (2010) 31
Opinion of the Court
Finding Hastings’ open-access condition on RSO status
reasonable and viewpoint neutral, we reject CLS’ free­
speech and expressive-association claims.27
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 consider
——————
the Law School’s regulation by dropping access barriers, they may
express any viewpoint they wish—including a discriminatory one. Cf.
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547
U.S. 47, 60 (2006) (“As a general matter, the Solomon Amendment
regulates conduct, not speech. It affects what law schools must do—
afford equal access to military recruiters—not what they may or may
not say.”). Today’s decision thus continues this Court’s tradition of
“protect[ing] the freedom to express ‘the thought that we hate.’ ” Post,
at 1 (ALITO, J., dissenting) (quoting United States v. Schwimmer, 279
U.S. 644, 655 (1929) (Holmes, J., dissenting)).
27 CLS briefly argues that Hastings’ all-comers condition violates the
Free Exercise Clause. Brief for Petitioner 40–41. Our decision in
Smith, 494 U.S. 872, forecloses that argument. In Smith, the Court
held that the Free Exercise Clause does not inhibit enforcement of
otherwise valid regulations of general application that incidentally
burden religious conduct. Id., at 878–882. In seeking an exemption
from Hastings’ across-the-board all-comers policy, CLS, we repeat,
seeks preferential, not equal, treatment; it therefore cannot moor its
request for accommodation to the Free Exercise Clause.
28 Finding the Ninth Circuit’s analysis cursory, the dissent repeatedly
urges us to resolve the pretext question. See, e.g., post, at 2, 31–35, and
17, n. 2. In doing so, the dissent forgets that “we are a court of review,
not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005).
When the lower courts have failed to address an argument that de­
served their attention, our usual practice is to remand for further
consideration, not to seize the opportunity to decide the question
ourselves. That is especially true when we agree to review an issue on
the understanding that “[t]he material facts . . . are undisputed,” as
32 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
Opinion of the Court
CLS’s pretext argument if, and to the extent, it is
preserved.29
* * *
For the foregoing reasons, we affirm the Court of Ap­
peals’ ruling that the all-comers policy is constitutional
and remand the case for further proceedings consistent
with this opinion.
It is so ordered.
——————
CLS’s petition for certiorari emphasized was the case here. Pet. for
Cert. 2.
29 The dissent’s pretext discussion presents a one-sided summary of
the record evidence, post, at 31–34, an account depending in large part
on impugning the veracity of a distinguished legal scholar and a well
respected school administrator, post, at 3, 5, 6, 7, 8, 9, 11, 24, 32, 34.
See also supra, at 10, n. 7.
Cite as: 561 U. S. ____ (2010) 1
STEVENS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1371
_________________
CHRISTIAN LEGAL SOCIETY CHAPTER OF THE UNI-
VERSITY OF CALIFORNIA, HASTINGS COLLEGE OF
THE LAW, AKA HASTINGS CHRISTIAN FELLOW-
SHIP, PETITIONER v. LEO P. MARTINEZ ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2010]
JUSTICE STEVENS, concurring.
The Court correctly confines its discussion to the narrow
issue presented by the record, see ante, at 8–12, and cor
rectly 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 18 (opinion of ALITO, J.), a brief response
is appropriate. In my view, both policies are plainly
legitimate.
The Hastings College of Law’s (Hastings) Nondiscrimi
nation Policy contains boilerplate language used by insti
tutions 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 5–6, 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 life
style,” App. 146. CLS, in short, wanted to receive the
school’s formal recognition—and the benefits that attend
2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
STEVENS, J., concurring
formal recognition—while continuing to exclude gay and
non-Christian students (as well as, it seems, students who
advocate for gay rights).
In the dissent’s view, by refusing to grant CLS an ex
emption from the Nondiscrimination Policy, Hastings
violated CLS’s rights, for by proscribing unlawful dis
crimination on the basis of religion, the policy discrimi
nates unlawfully on the basis of religion. There are nu
merous 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 reli
gious beliefs are not “singled out,” post, at 19 (ALITO, J.,
dissenting); those who engage in discriminatory conduct
based on someone else’s religious status and belief are
singled out.1 Regardless of whether they are the product
——————
1 The dissent appears to accept that Hastings may prohibit discrimi
nation on the basis of religious status, though it rejects the notion that
Hastings may do the same for religious belief. See, e.g., post, at 22, n. 5,
28. If CLS sought to exclude a Muslim student in virtue of the fact that
he “is” Muslim, the dissent suggests, there would be no problem in
Hastings forbidding that. But if CLS sought to exclude the same
student in virtue of the fact that he subscribes to the Muslim faith,
Hastings must stand idly by. This proposition is not only unworkable
in practice but also flawed in conception. A person’s religion often
simultaneously constitutes or informs a status, an identity, a set of
beliefs and practices, and much else besides. (So does sexual orienta
tion for that matter, see ante, at 22–23, notwithstanding the dissent’s
view that a rule excluding those who engage in “unrepentant homosex
Cite as: 561 U. S. ____ (2010) 3
STEVENS, J., concurring
of secular or spiritual feeling, hateful or benign motives,
all acts of religious discrimination are equally covered.
The discriminator’s beliefs are simply irrelevant. There is,
moreover, no evidence that the policy was adopted because
of any reason related to the particular views that religious
individuals or groups might have, much less because of a
desire to suppress or distort those views. The policy’s
religion clause was plainly meant to promote, not to un
dermine, religious freedom.
To be sure, the policy may end up having greater conse
quence 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 signifi
cant 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
——————
ual conduct,” App. 226, does not discriminate on the basis of status or
identity, post, at 22–23.) Our First Amendment doctrine has never
required university administrators to undertake the impossible task of
separating out belief-based from status-based religious discrimination.
2 See, e.g., Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 763
(1994); R. A. V. v. St. Paul, 505 U.S. 377, 385 (1992); Board of Directors
of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987);
Roberts v. United States Jaycees, 468 U.S. 609, 623, 628 (1984); cf.
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872, 878–879 (1990) (“We have never held that an individual’s religious
beliefs excuse him from compliance with an otherwise valid law prohib
iting conduct that the State is free to regulate”). Courts and commen
tators have applied this insight to the exact situation posed by the
Nondiscrimination Policy. See, e.g., Christian Legal Society v. Walker,
453 F.3d 853, 866 (CA7 2006) (stating that “[t]here can be little doubt
that” comparable nondiscrimination policy “is viewpoint neutral on its
face”); Truth v. Kent School Dist., 542 F.3d 634, 649–650 (CA9 2008)
(similar); Volokh, Freedom of Expressive Association and Government
Subsidies, 58 Stan. L. Rev. 1919, 1930–1938 (2006).
4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
STEVENS, J., concurring
has thus given no reason to be skeptical of the basic
design, function, or rationale of the Nondiscrimination
Policy.
What the policy does reflect is a judgment that dis
crimination by school officials or organizations on the
basis of certain factors, such as race and religion, is less
tolerable than discrimination on the basis of other factors.
This approach may or may not be the wisest choice in the
context of a Registered Student Organization (RSO) pro
gram. But it is at least a reasonable choice. Academic
administrators routinely employ antidiscrimination rules
to promote tolerance, understanding, and respect, and to
safeguard students from invidious forms of discrimination,
including sexual orientation discrimination.3 Applied to
the RSO context, these values can, in turn, advance nu
merous pedagogical objectives. See post, at 3–4
(KENNEDY, J., concurring).
It is critical, in evaluating CLS’s challenge to the Non
discrimination Policy, to keep in mind that an RSO pro
gram 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 set
ting, it must be allowed broad freedom to control its mem
bership 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
——————
3 In a case about an antidiscrimination policy that, even if ill-advised,
is explicitly directed at preventing religious discrimination, it is rather
hard to swallow the dissent’s ominous closing remarks. See post, at 37
(suggesting that today’s decision “point[s] a judicial dagger at the heart
of” religious groups in the United States (internal quotation marks
omitted)). Although the dissent is willing to see pernicious antireligi
ous motives and implications where there are none, it does not seem
troubled by the fact that religious sects, unfortunately, are not the only
social groups who have been persecuted throughout history simply for
being who they are.
Cite as: 561 U. S. ____ (2010) 5
STEVENS, J., concurring
was merely human.” Post, at 27 (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 recog
nized student organization. The Hastings College of 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 their
world,” post, at 13 (internal quotation marks omitted), it
does not follow that the campus ought to be equated with
the public square.
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 commu
nity. Public universities serve a distinctive role in a mod
ern 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 man
age their own affairs.
The RSO forum is no different. It is not an open com
mons that Hastings happens to maintain. It is a mecha
nism 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 pro
gram will serve and which rules are best suited to facili
tate 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
6 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
STEVENS, J., concurring
the rules, the RSO sponsor need not admit that group at
the cost of undermining the program and the values re
flected therein. On many levels, a university administra
tor has a “greater interest in the content of student activi
ties 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 associa
tion argument it presses, however, is hardly limited to
these facts. Other groups may exclude or mistreat Jews,
blacks, and women—or those who do not share their con
tempt for Jews, blacks, and women. A free society must
tolerate such groups. It need not subsidize them, give
them its official imprimatur, or grant them equal access to
law school facilities.
Cite as: 561 U. S. ____ (2010) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1371
_________________
CHRISTIAN LEGAL SOCIETY CHAPTER OF THE UNI-
VERSITY OF CALIFORNIA, HASTINGS COLLEGE OF
THE LAW, AKA HASTINGS CHRISTIAN FELLOW-
SHIP, PETITIONER v. LEO P. MARTINEZ ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2010]
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, inter
ests, and expertise (e.g., art professor not chosen as
speaker for conference on public transit). When the gov
ernment 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 lim
ited 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 tradi
tion of a university setting that stimulates the free ex
change of ideas. See id., at 835 (“[I]n the University set
ting, . . . the State acts against a background and tradition
2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
KENNEDY, J., concurring
of thought and experiment that is at the center of our
intellectual and philosophic tradition”). These considera
tions supported the Court’s conclusion that, under the
First Amendment, a limited forum for student-run publi
cations did not permit the exclusion of a paper for the
reason that it was devoted to expressing religious views.
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
evident purpose; and were it shown to be otherwise, the
case likely should have a different outcome. Here, the
policy applies equally to all groups and views. And, given
the stipulation of the parties, there is no basis for an
allegation that the design or purpose of the rule was, by
subterfuge, to discriminate based on viewpoint.
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 essen
tial 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 stu
dents to form groups around shared identities, a school
creates room for self-expression and personal develop
ment. 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 qualifi
cation were enforced, it would contradict a legitimate
purpose for having created the limited forum in the first
Cite as: 561 U. S. ____ (2010) 3
KENNEDY, J., concurring
place. Many educational institutions, including respon
dent Hastings College of Law, have recognized that the
process of learning occurs both formally in a classroom
setting and informally outside of it. See id., at 233. Stu
dents 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 tal
ents, and to nurture a growing sense of self. See Board of
Ed. of Independent 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 Hasting program is designed to allow all students to
interact with their colleagues across a broad, seemingly
unlimited range of ideas, views, and activities. See Re
gents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 313,
n. 48 (1978) (opinion of Powell, J.) (“[A] great deal of learn
ing . . . occurs through interactions among students . . .
who have a wide variety of interests, talents, and perspec
tives; 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; inter
nal 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
4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
KENNEDY, J., concurring
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 persua
sive based on its substance, not the identity of the
speaker. The era of loyalty oaths is behind us. A school
quite properly may conclude that allowing an oath or
belief-affirming requirement, or an outside conduct re
quirement, could be divisive for student relations and
inconsistent with the basic concept that a view’s validity
should be tested through free and open discussion. The
school’s policy therefore represents a permissible effort to
preserve the value of its forum.
In addition to a circumstance, already noted, in which it
could be demonstrated that a school has adopted or en
forced its policy with the intent or purpose of discriminat
ing 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.
Cite as: 561 U. S. ____ (2010) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1371
_________________
CHRISTIAN LEGAL SOCIETY CHAPTER OF THE UNI-
VERSITY OF CALIFORNIA, HASTINGS COLLEGE OF
THE LAW, AKA HASTINGS CHRISTIAN FELLOW-
SHIP, PETITIONER v. LEO P. MARTINEZ ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2010]
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 expres
sion that offends prevailing standards of political correct
ness 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 and severely burdens speech by unregistered
groups. Hastings currently has more than 60 registered
groups and, in all its history, has denied registration to
exactly one: the Christian Legal Society (CLS). CLS
claims that Hastings refused to register the group because
the law school administration disapproves of the group’s
viewpoint and thus violated the group’s free speech rights.
Rejecting this argument, the Court finds that it has
been Hastings’ policy for 20 years that all registered or
ganizations 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
2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
that this “accept-all-comers” policy, ante, at 1, is both
viewpoint-neutral and consistent with Hastings’ pro
claimed policy of fostering a diversity of viewpoints among
registered student groups.
The Court’s treatment of this case is deeply disappoint
ing. 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 incon
venient 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
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 5; (2) the
effects of Hastings’ refusal to register CLS have been of
questionable importance, see ante, at 24–25; and (3) this
case is about CLS’s desire to obtain “a state subsidy,” ante,
at 15. I begin by correcting the picture.
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
Cite as: 561 U. S. ____ (2010) 3
ALITO, J., dissenting
denied registration, i.e., the school’s written Nondiscrimi
nation Policy, or the policy that Hastings belatedly un
veiled 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 organiza
tion 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 mem
bership.” Id., at 146. The resolution made it clear that “a
sexually immoral lifestyle,” in CLS’s view, includes engag
ing 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 the Hastings
chapter of CLS applied to register with the law school.
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
4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
Hastings Jewish Law Students Association and the Hast
ings 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 Associa
tion, 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,” id., at 244, while Law
Students for Choice aimed to “defend and expand repro
ductive rights,” id., at 243. The American Constitution
Society sought “to counter . . . a narrow conservative vi
sion” 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 chan
nels for communicating with students and faculty—
including posting messages on designated bulletin boards,
sending mass e-mails to the student body, distributing
material through the Student Information Center, and
participating in the annual student organizations fair.
App. to Pet. for Cert. 7a, 85a. They may also apply for
limited travel funds, id., at 7a, which appear to total about
$4,000 to $5,000 per year, App. 217—or less than $85 per
registered group. Most of the funds available to RSOs
come from an annual student activity fee that every stu
dent must pay. See App. to Pet. for Cert. 89a–93a.
Cite as: 561 U. S. ____ (2010) 5
ALITO, J., dissenting
When CLS applied for registration, Judy Hansen Chap
man, 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 re
flects, 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 provi
sions of the Nondiscrimination Policy and that they would
need to be amended in order for CLS to become a regis
tered 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 require
ments, 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 42
U.S. C. §1983 against the law school’s dean and other
school officials, claiming, among other things, that the law
school, by enacting and enforcing the Nondiscrimination
Policy, had violated CLS’s First Amendment right to
freedom of speech. App. 78.
In May 2005, Hastings filed an answer to CLS’s first
amended complaint and made an admission that is signifi
cant for present purposes. In its complaint, CLS had
alleged that the Nondiscrimination Policy discriminates
6 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
against religious groups because it prohibits those groups
“from selecting officers and members dedicated to a par
ticular set of religious ideals or beliefs” but “permits politi
cal, 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 politi
cal, 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 4. But this admission in Hastings’
answer shows that Hastings had not adopted this inter
pretation 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 or
ganizations wishing to register with Hastings allow any
Hastings student to become a member and/or seek a lead
ership 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
members of the law school community prior to the dean’s
deposition. Indeed, Hastings has adduced no evidence of
the policy’s existence before that date. And while Dean
Kane and Ms. Chapman stated, well after this litigation
had begun, that Hastings had such a policy, neither they
nor any other Hastings official has ever stated in a deposi
Cite as: 561 U. S. ____ (2010) 7
ALITO, J., dissenting
tion, affidavit, or declaration when this policy took effect.
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 4 (emphasis added). This puts Hastings
in the implausible position of maintaining that the Non
discrimination Policy means one thing as applied to the
RSO program and something quite different as applied to
all of Hastings’ other activities. But the Nondiscrimina
tion 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 stated in Article 3, Section 1.” App. to
Pet. for Cert. 118a (emphasis added). The constitution of
the Association of Trial Lawyers of America at Hastings
provided that every member must “adhere to the objec
tives of the Student Chapter as well as the mission of
8 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
ATLA.” Id., at 110a. A student could become a member of
the Vietnamese American Law Society so long as the
student did not “exhibit a consistent disregard and lack of
respect for the objective of the organization,” which cen
ters on a “celebrat[ion] [of] Vietnamese culture.” Id., at
146a–147a. Silenced Right limited voting membership to
students who “are committed” to the group’s “mission” of
“spread[ing] the pro-life message.” Id., at 142a–143a. La
Raza limited voting membership to “students of Raza
background.” App. 192. Since Hastings requires any
student group applying for registration to submit a copy of
its bylaws, see id., at 249–250, Hastings cannot claim that
it was unaware of such provisions. And as noted, CLS was
denied registration precisely because Ms. Chapman re
viewed its bylaws and found them unacceptable.
We are told that, when CLS pointed out these discrep
ancies during this litigation, Hastings took action to en
sure 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 main
tain the Club’s standing as a student organization,” it
must “open its membership to all students, regardless 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
comers policy, underwent yet another transformation.
Now, Hastings claims that it does not really have an
accept-all-comers policy; it has an accept-some-comers
policy. Hastings’ current policy, we are told, “does not
Cite as: 561 U. S. ____ (2010) 9
ALITO, J., dissenting
foreclose neutral and generally applicable membership
requirements unrelated to ‘status or beliefs.’ ” Brief for
Respondent Hastings College of Law 5. Hastings’ brief
goes on to note with seeming approval that some regis
tered groups have imposed “even conduct requirements.”
Ibid. Hastings, however, has not told us which “conduct
requirements” are allowed and which are not—although
presumably requirements regarding sexual conduct fall
into the latter category.
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 re
strict membership to students who shared the groups’
views.1 Nevertheless, the Ninth Circuit disposed of CLS’s
——————
1 CLS consistently argued in the courts below that Hastings had ap
plied its registration policy in a discriminatory manner. See, e.g.,
Plaintiff’s Notice of Motion for Summary Judgment and Memorandum
in Support of Motion for Summary Judgment in No. C 04–4484–JSW
(ND Cal.), pp. 6–7 (“Hastings allows other registered student organiza
tions to require that their members and/or leaders agree with the
organization’s beliefs and purposes”). CLS took pains to bring forward
evidence to substantiate this claim. See supra, at 7–8.
CLS’s brief in the Court of Appeals reiterated its contention that
Hastings had not required all RSOs to admit all student applicants.
CLS’s brief stated that “Hastings allows other registered student
organizations to require that their leaders and/or members agree with
the organization’s beliefs and purposes.” Brief for Appellant in No. 06–
15956 (CA9), pp. 14–15 (citing examples). See also id., at 54–55 (“Hast
ings routinely recognizes student groups that limit membership or
leadership on the basis of belief. . . . Hastings’ actual practice demon
strates that the forum is not reserved to student organizations that do
10 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
appeal with a two-sentence, not-precedential opinion that
solely addressed the accept-all-comers policy. Christian
Legal Soc. Chapter of Univ. of Cal. v. Kane, 319 Fed. Appx.
645–646 (2009).
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 organiza
tions allow any student to participate, become a mem
ber, 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 11–12.
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 Hasting at that time was
that the CLS bylaws did not comply with the Nondis
crimination 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.
——————
not discriminate on the basis of belief”). Responding to these argu
ments, the law school remarked that CLS “repeatedly asserts that
‘Hastings routinely recognizes student groups that limit membership or
leadership on the basis of belief.’ ” Brief for Appellees in No. 06–15956
(CA9), p. 4.
Cite as: 561 U. S. ____ (2010) 11
ALITO, J., dissenting
The majority’s insistence on the binding effect of stipu
lations contrasts sharply with its failure to recognize the
binding effect of a party’s admissions in an answer. See
American Title Insurance Co. v. Lacelaw Corp., 861 F.2d
224, 226 (CA9 1988) (“Factual assertions in pleadings and
pretrial orders, unless amended, are considered judicial
admissions conclusively binding on the party who made
them”); Bakersfield Westar Ambulance, Inc. v. Community
First Bank, 123 F.3d 1243, 1248 (CA9 1997) (quoting
Lacelaw, supra). As noted above, Hastings admitted in its
answer, which was filed prior to the former dean’s deposi
tion, that at least as of that time, the law school did not
follow an accept-all-comers policy and instead allowed
“political, social, and cultural student organizations to
select officers and members who are dedicated to a par
ticular set of ideals or beliefs.” App. 93.
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 6 (quoting App.
294). Later in its opinion, the Court reiterates that “Hast
ings offered CLS access to school facilities to conduct
meetings,” ante, at 24, 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
12 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
Ms. Chapman requesting permission to set up an “advice
table” on a campus patio on August 23 and 24 so that
members of CLS could speak with students at the begin
ning of the fall semester. Id., at 298. This request—
merely to set up a table on a patio—could hardly have
interfered with any other use of the law school’s premises
or cost the school any money. But although the request
was labeled “time sensitive,” ibid., Ms. Chapman did not
respond until the dates in question had passed, and she
then advised the student that all further inquiries should
be made through CLS’s attorney. Id., at 297–298.
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 re
sponse before the scheduled date, but once again no an
swer 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 meet
ings and other events. Ante, at 6. And “[a]lthough CLS
could not take advantage of RSO-specific methods of com
munication,” the Court states, “the advent of electronic
media and social-networking sites reduces the importance
of those channels.” Ante, at 24.
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 dis
crimination—by using private facilities and means of
communication—is quite amazing.
This Court does not customarily brush aside a claim of
Cite as: 561 U. S. ____ (2010) 13
ALITO, J., dissenting
unlawful discrimination with the observation that the
effects of the discrimination were really not so bad. We
have never before taken the view that a little viewpoint
discrimination is acceptable. Nor have we taken this
approach in other discrimination cases.
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 15, and the question
presented in this case centers on the “use of school funds,”
ante, at 1. 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 First Amendment
rights of students at public universities will be at the
mercy of the administration. As CLS notes, “[t]o univer
sity students, the campus is their world. The right to
meet on campus and use campus channels of communica
tion is at least as important to university students as the
right to gather on the town square and use local communi
cation forums is to the citizen.” Reply Brief for Petitioner
13.
II
To appreciate how far the Court has strayed, it is in
structive to compare this case with Healy v. James, 408
U.S. 169 (1972), our only First Amendment precedent
involving a public college’s refusal to recognize a student
group. The group in Healy was a local chapter of the
Students for a Democratic Society (SDS). When the stu
dents who applied for recognition of the chapter were
asked by a college committee whether they would “ ‘re
spond to issues of violence as other S.D.S. chapters have,’ ”
their answer was that their “ ‘action would have to be
14 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
dependent upon each issue.’ ” Id., at 172–173. They simi
larly refused to provide a definitive answer when asked
whether they would be willing to “use any means possible”
to achieve their aims. Id., at 173. The president of the
college refused to allow the group to be recognized, con
cluding that the philosophy of the SDS was “antithetical to
the school’s policies” and that it was doubtful that the
local chapter was independent of the national organiza
tion, the “ ‘published aims and philosophy’ ” of which in
cluded “ ‘disruption and violence.’ ” Id., at 174–175, and
n. 4.
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 First Amendment
rights of the SDS chapter had not been violated, and when
the case reached this Court, the college, much like today’s
majority, sought to minimize the effects of nonrecognition,
arguing that the SDS members “still may meet as a group
off campus, that they still may distribute written material
off campus, and that they still may meet together infor
mally on campus . . . as individuals.” Id., at 182–183.
This Court took a different view. The Court held that
the denial of recognition substantially burdened the stu
dents’ 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 cir
cumscribed 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
Cite as: 561 U. S. ____ (2010) 15
ALITO, J., dissenting
which new students enter on a regular basis, it must
possess the means of communicating with these stu
dents. Moreover, the organization’s ability to partici
pate in the intellectual give and take of campus de
bate, and to pursue its stated purposes, is limited by
denial of access to the customary media for communi
cating with the administration, faculty members, and
other students. Such impediments cannot be viewed
as insubstantial.” Id., at 181–182.
It is striking that all of these same burdens are now
borne by CLS. CLS is prevented from using campus facili
ties—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 other
wise 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 judg
ment regarding the compatibility of “sound educational
policy” and free speech rights. The same deference argu
ments 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 ac
tions 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
16 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
that universities should be permitted to impose restric
tions on speech that would not be tolerated elsewhere.
Brief for American Association of Presidents of Independ
ent 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 “First Amendment protections should
apply with less force on college campuses than in the
community at large.” 408 U.S., at 180. And on one key
question after another—whether the local SDS chapter
was independent of the national organization, whether the
group posed a substantial threat of material disruption,
and whether the students’ responses to the committee’s
questions about violence and disruption signified a will
ingness to engage in such activities—the Court drew
its own conclusions, which differed from the college
president’s.
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 uni
versity 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 other
wise 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 Amend
Cite as: 561 U. S. ____ (2010) 17
ALITO, J., dissenting
ment rights.” 408 U.S., at 187. Here, too, disapproval of
CLS cannot justify Hastings’ actions.2
III
The Court pays little attention to Healy and instead
focuses solely on the question whether Hastings’ registra
tion policy represents a permissible regulation in a limited
public forum. While I think that Healy is largely control
ling, I am content to address the constitutionality of Hast
ings’ actions under our limited public forum cases, which
lead to exactly the same conclusion.
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 Corne
lius 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); Rosen
berger, 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.”
——————
2 The Court attempts to distinguish Healy on the ground that there
the college “explicitly denied the student group official recognition
because of the group’s viewpoint.” Ante, at 17, n. 15. The same, how
ever, is true here. CLS was denied recognition under the Nondiscrimi
nation Policy because of the viewpoint that CLS sought to express
through its membership requirements. See supra, at 5; infra, at 18–23.
And there is strong evidence that Hastings abruptly shifted from the
Nondiscrimination Policy to the accept-all-comers policy as a pretext for
viewpoint discrimination. See infra, at 31–35.
18 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
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; Lamb’s Chapel, supra, at 392–393, 394. We
have also stressed that the rules applicable in a limited
public forum are particularly important in the university
setting, where “the State acts against a background of
tradition of thought and experiment that is at the center
of our intellectual and philosophic tradition.” Rosenberger,
supra, at 835.
IV
Analyzed under this framework, Hastings’ refusal to
register CLS pursuant to its Nondiscrimination Policy
plainly fails.3 As previously noted, when Hastings refused
——————
3 CLS sought a declaratory judgment that this policy is unconstitu
tional and an injunction prohibiting its enforcement. See App. 80.
Particularly in light of Hastings’ practice of changing its announced
policies, these requests are not moot. It is well settled that the volun
tary cessation of allegedly unlawful conduct does not moot a case in
which the legality of that conduct is challenged. See City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982); see also Allee v.
Medrano, 416 U.S. 802, 810–811 (1974); DeFunis v. Odegaard, 416
U.S. 312, 318 (1974) (per curiam). If the rule were otherwise, the
courts would be compelled to leave “ ‘[t]he defendant . . . free to return
to his old ways.’ ” United States v. Concentrated Phosphate Export
Assn., Inc., 393 U.S. 199, 203 (1968) (quoting United States v. W. T.
Grant Co., 345 U.S. 629, 632 (1953)). Here, there is certainly a risk
that Hastings will “return to [its] old ways,” and therefore CLS’s
requests for declaratory and injunctive relief with respect to the Non
Cite as: 561 U. S. ____ (2010) 19
ALITO, J., dissenting
to register CLS, it claimed that the CLS bylaws impermis
sibly discriminated on the basis of religion and sexual
orientation. As interpreted by Hastings and applied
to CLS, both of these grounds constituted viewpoint
discrimination.
Religion. The First Amendment protects the right of
“ ‘expressive association’ ”—that is, “the right to associate
for the purpose of speaking.” Rumsfeld v. Forum for Aca
demic and Institutional Rights, Inc., 547 U.S. 47, 68
(2006) (quoting Boy Scouts of America v. Dale, 530 U.S.
640, 644 (2000)). And the Court has recognized that “[t]he
forced inclusion of an unwanted person in a group in
fringes the group’s freedom of expressive association if the
presence of that person affects in a significant way the
group’s ability to advocate public or private viewpoints.”
Dale, supra, at 648.
With one important exception, the Hastings Nondis
crimination Policy respected that right. As Hastings
stated in its answer, the Nondiscrimination Policy “per
mit[ted] political, social, and cultural student organiza
tions 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 environmen
talist group was not required to admit students who re
——————
discrimination Policy are not moot. If, as the Court assumes, the
parties stipulated that the only relevant policy is the accept-all-comers
policy, then the District Court should not have addressed the constitu
tionality of the Nondiscrimination Policy. But the District Court
approved both policies, and the Court of Appeals affirmed the judg
ment. That judgment remains binding on CLS, so it is only appropriate
that CLS be permitted to challenge that determination now. The
question of the constitutionality of the Nondiscrimination Policy falls
comfortably within the question presented, and CLS raised that issue
in its brief. See Brief for Petitioner 41–46.
20 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
jected 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 discrimina
tion. “By the very terms of the [Nondiscrimination Policy],
the University . . . select[ed] for disfavored treatment
those student [groups] with religious . . . viewpoints.”
Rosenberger, 515 U.S., 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
neutral. But his arguments are squarely contrary to
established precedent.
JUSTICE STEVENS first argues that the Nondiscrimina
tion Policy is viewpoint neutral because it “does not regu
late expression or belief at all” but instead regulates con
duct. See ante, at 2 (concurring opinion). This Court has
held, however, that the particular conduct at issue here
constitutes a form of expression that is protected by the
First Amendment. It is now well established that the
First Amendment shields the right of a group to engage in
expressive association by limiting membership to persons
whose admission does not significantly interfere with the
group’s ability to convey its views. See Dale, supra, at
648; Roberts v. United States Jaycees, 468 U.S. 609, 623
(1984); see also New York State Club Assn., Inc. v. City of
New York, 487 U.S. 1, 13 (1988) (acknowledging that an
“association might be able to show that it is organized for
specific expressive purposes and that it will not be able to
advocate its desired viewpoints nearly as effectively if it
cannot confine its membership to those who share the
same sex, for example, or the same religion”); Widmar,
supra, at 268–269 (“[T]he First Amendment rights of
speech and association extend to the campuses of state
universities”). Indeed, the opinion of the Court, which
Cite as: 561 U. S. ____ (2010) 21
ALITO, J., dissenting
JUSTICE STEVENS joins, acknowledges this rule. See ante,
at 13.
JUSTICE STEVENS also maintains that the Nondiscrimi
nation Policy is viewpoint neutral because it prohibits all
groups, both religious and secular, from engaging in reli
gious speech. See ante, at 3. This argument is also con
trary to established law. In Rosenberger, the dissent,
which JUSTICE STEVENS joined, made exactly this argu
ment. 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 dis
criminated on the basis of viewpoint.4 515 U.S., at 831.
The Court reaffirmed this holding in Good News Club, 533
U.S., at 112, and n. 4.
Here, the Nondiscrimination Policy permitted member
ship 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
——————
4 In Rosenberger the university argued that the denial of student
activity funding for all groups that sought to express a religious view
point was “facially neutral.” See Brief for Respondents in Rosenberger
v. Rector & Visitors of Univ. of Va., O. T. 1994, No. 94–329, p. 2; 515
U.S., at 824–825. The Rosenberger dissenters agreed that the univer
sity’s policy did not constitute viewpoint discrimination because “it
applie[d] to Muslim and Jewish and Buddhist advocacy as well as to
Christian,” and it “applie[d] to agnostics and atheists as well as it does
to deists and theists.” Id., at 895–896 (opinion of Souter, J.); cf. ante, at
2–3 (opinion of STEVENS, J.) (asserting that under Hastings’ Nondis
crimination Policy “all acts of religious discrimination” are prohibited
(emphasis added)). But the Court flatly rejected this argument. See
515 U.S., at 831 (“Religion may be a vast area of inquiry, but it also
provides, as it did here, a specific premise, a perspective, a standpoint
from which a variety of subjects may be discussed and considered”).
22 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
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 dis
criminate on the basis of religion. It would not mean, for
example, that fraternities or sororities could exclude stu
dents on that basis. As our cases have recognized, the
right of expressive association permits a group to exclude
an applicant for membership only if the admission of that
person would “affec[t] in a significant way the group’s
ability to advocate public or private viewpoints.” Dale,
530 U.S., at 648. Groups that do not engage in expressive
association have no such right. Similarly, groups that are
dedicated to expressing a viewpoint on a secular topic (for
example, a political or ideological viewpoint) would have
no basis for limiting membership based on religion be
cause the presence of members with diverse religious
beliefs would have no effect on the group’s ability to ex
press its views. But for religious groups, the situation is
very different. This point was put well by a coalition of
Muslim, Christian, Jewish, and Sikh groups: “Of course
there is a strong interest in prohibiting religious discrimi
nation where religion is irrelevant. But it is fundamen
tally confused to apply a rule against religious discrimina
tion to a religious association.” Brief for American Islamic
Congress et al. as Amici Curiae 3.
Sexual orientation. The Hastings Nondiscrimination
Policy, as interpreted by the law school, also discriminated
on the basis of viewpoint regarding sexual morality. CLS
——————
5 It is not at all clear what JUSTICE STEVENS means when he refers to
religious “status” as opposed to religious belief. See ante, at 2, n. 1.
But if by religious status he means such things as the religion into
which a person was born or the religion of a person’s ancestors, then
prohibiting discrimination on such grounds would not involve viewpoint
discrimination. Such immutable characteristics are quite different
from viewpoint.
Cite as: 561 U. S. ____ (2010) 23
ALITO, J., dissenting
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 mem
bers to affirm that they reject the traditional view of sex
ual 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 denied. According to Hastings’ brief, its new policy,
contrary to the position taken by Hastings officials at an
earlier point in this litigation, really does not require a
student group to accept all comers. Now, Hastings ex
plains, its policy allows “neutral and generally applicable
membership requirements unrelated to ‘status or beliefs.’ ”
Brief for Respondent Hastings College of Law 5. As ex
amples of permissible membership requirements, Hast
ings mentions academic standing, writing ability, “dues,
attendance, and even conduct requirements.” Ibid. (em
phasis added).
It seems doubtful that Hastings’ new policy permits
registered groups to condition membership eligibility on
whatever “conduct requirements” they may wish to im
pose. 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
24 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
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 require
ments are acceptable, which are not, and why CLS’s re
quirement 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 pre
sumably implements. It is a policy that, as far as the
record establishes, was in force only from the time when it
was first disclosed by the former dean in July 2005 until
Hastings filed its brief in this Court in March 2010. Why
we should train our attention on this particular policy and
not the other two is a puzzle. But in any event, it is clear
that the accept-all-comers policy is not reasonable in light
of the purpose of the RSO forum, and it is impossible to
say on the present record that it is viewpoint neutral.
A
Once a state university opens a limited forum, it “must
respect the lawful boundaries it has itself set.” Rosenber
ger, 515 U.S., at 829. Hastings’ regulations on the regis
tration of student groups impose only two substantive
limitations: A group seeking registration must have stu
dent members and must be non-commercial. App. to Pet.
for Cert. 82a–83a, Hastings Board of Directors, Policies
and Regulations Applying to College Activities, Organiza
——————
6Nor does the Court clarify this point. Suggesting that any conduct
requirement must relate to “gross misconduct,” ante, at 4, n. 2, is not
helpful.
Cite as: 561 U. S. ____ (2010) 25
ALITO, J., dissenting
tions 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 inter
est 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). They also emphatically disclaim any endorse
ment of or responsibility for views that student groups
may express. Id., at 85a (Hastings Regulations §34.10.D).
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 diver
sity 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 independ
ently devised purpose. Some addressed serious social
issues; others—for example, the wine appreciation and
ultimate Frisbee clubs—were simply recreational. Some
26 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
organizations focused on a subject but did not claim to
promote a particular viewpoint on that subject (for exam
ple, the Association of Communications, Sports & Enter
tainment 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.
The accept-all-comers policy is antithetical to the design
of the RSO forum for the same reason that a state-imposed
accept-all-comers policy would violate the First Amend
ment rights of private groups if applied off campus. As
explained above, a group’s First Amendment right of
expressive association is burdened by the “forced inclu
sion” of members whose presence would “affec[t] in a
significant way the group’s ability to advocate public or
private viewpoints.” Dale, 530 U.S., at 648. The Court
has therefore held that the government may not compel a
group that engages in “expressive association” to admit
such a member unless the government has a compelling
interest, “ ‘unrelated to the suppression of ideas, that
cannot be achieved through means significantly less re
strictive of associational freedoms.’ ” Ibid. (quoting Rob
erts, 468 U. S., at 623).
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
Cite as: 561 U. S. ____ (2010) 27
ALITO, J., dissenting
groups’ beliefs. Religious groups like CLS obviously en
gage 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 Califor
nia 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 require
ments 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-all-comers policy and, deferring to
the school’s judgment, ante, at 21, the Court finds all those
justifications satisfactory, ante, at 21–24. If we carry
out our responsibility to exercise our own independent
judgment, however, we must conclude that the justifica
tions offered by Hastings and accepted by the Court are
insufficient.
The Court first says that the accept-all-comers policy is
reasonable because it helps Hastings to ensure that “ ‘lead
ership, educational, and social opportunities’ ” are afforded
to all students. Ante, at 21–22 (quoting Brief for Respon
dent Hastings College of Law 32). The RSO forum, how
ever, is designed to achieve these laudable ends in a very
different way—by permitting groups of students, no mat
ter 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
28 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
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 22; see also ante, at 2–3, 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 orien
tation, the Nondiscrimination Policy also largely tracks
federal antidiscrimination laws.8 Moreover, Hastings now
willingly accepts greater burdens under its latest policy,
which apparently requires the school to distinguish be
tween certain “conduct requirements” that are allowed
and others that are not. Nor is Hastings daunted by the
labor of determining whether a club admissions exam
legitimately tests knowledge or is a pretext for screening
——————
7 See, e.g., Cal. Gov. Code Ann. §12940(a) (West 2005); N. J. Stat.
Ann. §10:5–12(a) (West 2002); N. Y. Exec. Law Ann. §296(1)(a) (West
2010).
8 See, e.g., Civil Rights Act of 1964, 42 U.S. C. §2000e et seq. (Title
VII); Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S. C.
§2000d et seq. (Title VI); Age Discrimination in Employment Act of
1967, 81 Stat. 602, as amended, 29 U.S. C. §621 et seq.; Americans
with Disabilities Act of 1990, 104 Stat. 337, 42 U.S. C. §12101 et seq.
However, Title VII, which prohibits employment discrimination on the
basis of religion, provides that religious associations and schools can
hire on the basis of religion and that any employer can hire on the basis
of religion if it is a bona fide occupational qualification. 42 U.S. C.
§§2000e–1(a), 2000e–2(e).
Cite as: 561 U. S. ____ (2010) 29
ALITO, J., dissenting
out students with disfavored beliefs. Asked at oral argu
ment whether CLS could require applicants to pass a test
on the Bible, Hastings’ attorney responded: “If it were
truly an objective knowledge test, it would be okay.” Tr. of
Oral Arg. 52. The long history of disputes about the
meaning of Bible passages belies any suggestion that it
would be an easy task to determine whether the grading of
such a test was “objective.”
Third, the Court argues that the accept-all-comers
policy, by bringing together students with diverse views,
encourages tolerance, cooperation, learning, and the de
velopment of conflict-resolution skills. Ante, at 23. These
are obviously commendable goals, but they are not un
dermined by permitting a religious group to restrict mem
bership 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 practices are not
manifestations of “contempt” for members of other faiths.
Cf. ante, at 6 (opinion of STEVENS, J.) (invoking groups
that have “contempt for Jews, blacks, and women”). Nor
do they thwart the objectives that Hastings endorses. Our
country as a whole, no less than the Hastings College of
Law, values tolerance, cooperation, learning, and the
amicable resolution of conflicts. But we seek to achieve
those goals through “[a] confident pluralism that conduces
to civil peace and advances democratic consensus
building,” not by abridging First Amendment rights. Brief
for Gays and Lesbians for Individual Liberty as Amicus
Curiae 35.
Fourth, the Court observes that Hastings’ policy “incor
porates—in fact, subsumes—state-law proscriptions on
discrimination.” Ante, at 23. Because the First Amend
ment obviously takes precedence over any state law, this
30 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
would not justify the Hastings policy even if it were true—
but it is not. The only Hastings policy considered by the
Court—the accept-all-comers policy—goes far beyond any
California antidiscrimination law. Neither Hastings nor
the Court claims that California law demands that state
entities must accept all comers. Hastings itself certainly
does not follow this policy in hiring or student admissions.
Nor is it at all clear that California law requires Hast
ings 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. In
stead, Hastings points to a statute prohibiting discrimina
tion on specified grounds, including religion or sexual
orientation, “in any program or activity conducted by”
certain postsecondary educational institutions. Cal. Educ.
Code Ann. §66270 (West Supp. 2010) (emphasis added).
Hastings, however, does not conduct the activities of the
student groups it registers. Indeed, Hastings disclaims
such responsibility, stating both in its regulations and its
Handbook for Student Organizations that it “does not
sponsor student organizations and therefore does not
accept liability for activities of student organizations.”
App. to Pet. for Cert. 85a (Hastings Regulations §34.10.D);
App. 250. In addition, as CLS notes, another provision of
California law specifically exempts “any funds that are
used directly or indirectly for the benefit of student or
ganizations” from a ban on state funding of private groups
that discriminate on any of the grounds listed in §66270.
See §92150 (West Supp. 2010).
The authority to decide whether §66270 or any other
provision of California law requires religious student
groups at covered institutions to admit members who do
not share the groups’ religious views is of course a ques
tion of state law that we cannot resolve. The materials
that have been brought to our attention, however, provide
Cite as: 561 U. S. ____ (2010) 31
ALITO, J., dissenting
little support for the majority’s suggested interpretation.
In sum, Hastings’ accept-all-comers policy is not reason
able 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 28, but I would not be so quick to
jump to this conclusion. Even if it is assumed that the
policy is viewpoint neutral on its face,10 there is strong
——————
9 Although we have held that the sponsor of a limited public forum
“must respect the lawful boundaries it has itself set,” Rosenberger, 515
U.S., at 829, the Court now says that, if the exclusion of a group is
challenged, the sponsor can retroactively redraw the boundary lines in
order to justify the exclusion. See ante, at 21, n. 17. This approach
does not respect our prior holding.
10 In Board of Regents of Univ. of Wis. System v. Southworth, 529
U.S. 217 (2000), the Court considered a university rule permitting the
“defund[ing]” of a registered student group through a student referen
dum. See id., at 224–225. “To the extent the referendum substitutes
majority determinations for viewpoint neutrality,” the Court observed,
“it would undermine the constitutional protection the [university’s
registered student organization] program requires.” Id., at 235. “The
whole theory of viewpoint neutrality is that minority views are treated
with the same respect as are majority views.” Ibid.
Hastings’ accept-all-comers policy bears a resemblance to the South
wark referendum process. Both permit the majority to silence a disfa
vored organization. There is force to CLS’s argument that “[a]llowing
all students to join and lead any group, even when they disagree with
it, is tantamount to establishing a majoritarian heckler’s veto” and
“potentially turn[s] every group into an organ for the already-dominant
opinion.” Brief for Petitioner 51.
The Court attempts to distinguish Southworth as involving a funding
mechanism for student groups that operated selectively, based on
groups’ viewpoints. Ante, at 29, n. 25. But that mechanism—a student
referendum process—placed all students at risk of “being required to
32 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
evidence in the record that the policy was announced as a
pretext.
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. Although this rule would be
neutral on its face, its adoption for a discriminatory reason
would be illegal.
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 Nondis
crimination Policy.
Shifting policies. When Hastings denied CLS’s applica
tion 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
——————
pay fees which are subsidies for speech they find objectionable, even
offensive,” solely upon a majority vote of the student body. See 529
U.S., at 230, 235. That is no different in principle than an accept-all
comers policy that places all student organizations at risk of take-over
by a majority that is hostile to a group’s viewpoint.
Cite as: 561 U. S. ____ (2010) 33
ALITO, J., dissenting
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. Repub
lic 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 reli
gious groups, Hastings unveiled its accept-all-comers
policy. Then, after we granted certiorari and CLS’s open
ing brief challenged the constitutionality—and the plausi
bility—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 defen
dant’s decision.” Cicero, supra, at 592.
Lack of documentation. When an employer has a writ
ten policy and then relies on a rule for which there is no
written documentation, that deviation may support an
inference of pretext. See, e.g., Diaz v. Eagle Produce Ltd.
Partnership, 521 F.3d 1201, 1214 (CA9 2008); Rudin v.
Lincoln Land Community College, 420 F.3d 712, 727 (CA7
2005); Machinchick v. PB Power, Inc., 398 F.3d 345, 354,
n. 29 (CA5 2005); Russell v. TG Missouri Corp., 340 F.3d
735, 746 (CA8 2003); Mohammed v. Callaway, 698 F.2d
395, 399–400, 401 (CA10 1983).
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
34 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
Office of Student Services, which was charged with re
viewing 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 re
cord is replete with evidence that Hastings made no effort
to enforce the all-comers policy until after it was pro
claimed 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 (Silent Right); App. 192 (La Raza). See gener
ally supra, at 7–8. 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
issue in the first instance,” and that “[o]n remand, the
Ninth Circuit may consider CLS’s pretext argument if,
and to the extent, it is preserved.” Ante, at 31–32.
Because the Court affirms the entry of summary judg
ment 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
——————
11 As previously noted, CLS consistently argued in the courts below
that Hastings had applied its registration policy in a discriminatory
manner. See supra, at 9–10, n. 1. The Court would ignore these
arguments because counsel for CLS acknowledged below that Hastings
has an all-comers policy. See ante, at 9, n. 5 (quoting examples). But
as the Court itself acknowledges, counsel for CLS stated at oral argu
ment in this Court that “the Court needs to . . . reach the constitution
ality of the all-comers policy as applied to CLS in this case.” Tr. of Oral
Arg. 59 (emphasis added); ante, at 9, n. 5. And as the record shows,
CLS has never ceded its argument that Hastings applies its accept-all
comers policy unequally.
Cite as: 561 U. S. ____ (2010) 35
ALITO, J., dissenting
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 pre
cisely two sentences.
Neither of those two sentences addressed the “novel
question,” ante, at 1, 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 17–31. 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 com
ment. 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 mes
sage, 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
27. With this concession, the Court tacitly recognizes that
Hastings does not really have an accept-all-comers pol
icy—it has an accept-some-dissident-comers policy—and
the line between members who merely seek to change a
group’s message (who apparently must be admitted) and
those who seek a group’s “demise” (who may be kept out)
is hopelessly vague.
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 denomina
tions that disagree with CLS decided that CLS was mis
representing true Christian doctrine. Suppose that these
students joined CLS, elected officers who shared their
36 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL.,
HASTINGS COLLEGE OF LAW v. MARTINEZ
ALITO, J., dissenting
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 “vi
tal” 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 4 (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 pur
poses 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 conse
quences of its holding. A true accept-all-comers policy
permits small unpopular groups to be taken over by stu
dents who wish to change the views that the group ex
presses. Rules requiring that members attend meetings,
pay dues, and behave politely, see ante, at 27, would not
eliminate this threat.
The possibility of such takeovers, however, is by no
means the most important effect of the Court’s holding.
There are religious groups that cannot in good conscience
agree in their bylaws that they will admit persons who do
not share their faith, and for these groups, the conse
quence of an accept-all-comers policy is marginalization.
See Brief for Evangelical Scholars (Officers and 24 Former
Presidents of the Evangelical Theological Society) et al. as
Amici Curiae 19 (affirmance in this case “will allow every
public college and university in the United States to ex
clude all evangelical Christian organizations”); Brief for
Cite as: 561 U. S. ____ (2010) 37
ALITO, J., dissenting
Agudath Israel of America as Amicus Curiae 3, 8 (affir
mance would “point a judicial dagger at the heart of the
Orthodox Jewish community in the United States” and
permit that community to be relegated to the status of “a
second-class group”); Brief for Union of Orthodox Jewish
Congregations of America as Amicus Curiae 3 (affirmance
“could significantly affect the ability of [affiliated] student
clubs and youth movements . . . to prescribe requirements
for their membership and leaders based on religious be
liefs and commitments”). This is where the Court’s deci
sion leads.
* * *
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 First Amendment reflects a “profound
national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide
open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964). Even if the United States is the only Nation that
shares this commitment to the same extent, I would not
change our law to conform to the international norm. I
fear that the Court’s decision marks a turn in that direc
tion. Even those who find CLS’s views objectionable
should be concerned about the way the group has been
treated—by Hastings, the Court of Appeals, and now this
Court. I can only hope that this decision will turn out to
be an aberration.