concurring in judgment:
While I agree with the majority’s affir-mance of the district court’s grant of summary judgment, I feel that its reasoning goes unnecessarily too far. By holding that the First Amendment prohibits any action by a public university to prevent or punish offensive conduct like that at issue, the majority *394goes much further than necessary, going beyond the facts of the instant case in order to reach a conclusion unsupported by First Amendment jurisprudence.
The present case can be decided easily within the contours of First Amendment law simply by holding that George Mason University’s action violated the Fraternity members’ rights by punishing them post hoc and in conflict with its tacit approval of their performance. Instead, the majority ranges far to discuss what it has concluded the law would be absent such permission. The majority opinion expounds upon the development of First Amendment doctrine and concludes that George Mason was absolutely forbidden from regulating speech based on its content. However, the Supreme Court has held repeatedly that a content-based regulation of protected expression survives judicial scrutiny if it “ ‘is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.’” Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. -, -, 112 S.Ct. 501, 509, 116 L.Ed.2d 476 (1991) (quoting Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 1728, 95 L.Ed.2d 209 (1987)). Accord Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). Thus, the Supreme Court has recognized that regulation of speech based on its content is not only permissible but, in limited circumstances, justified.
In an attempt to reach a much broader conclusion, the majority cites from Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). Yet, the quoted passage from Mosley misrepresents its holding. The Mosley Court did not rule that Chicago’s selective proscription of nonlabor picketing was per se unconstitutional, but rather indicated that the regulation would be valid if Chicago demonstrated that nonlabor picketing was “clearly more disruptive than [labor] picketing.” 408 U.S. at 100, 92 S.Ct. at 2292. A complete reading of First Amendment jurisprudence reveals “that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First Amendment.” R.A.V. v. St. Paul, - U.S. -,-, 112 S.Ct. 2538, 2563, 120 L.Ed.2d 305 (1992) (Stevens, J. concurring).
George Mason’s treatment of the Fraternity is not itself constitutionally flawed, because the University was concerned about the message of the students’ performance, but because of the permission to give the performance which the University granted. The University, following the Fraternity’s performance of the skit, meted out punishment to the Fraternity, without any prior indication that such behavior was not allowed at school-sanctioned events, and despite indicating that the Fraternity’s skit had University approval.
Actually, forbidding the skit or requiring substantial amendment was not beyond its power. The University does have greater authority to regulate expressive conduct within its confines as a result of the unique nature of the educational forum. Tinker v. Des Moines School District, 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969) (holding that expressive activity in a school setting can only be restricted if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others”); see also Grayned v. City of Rockford, 408 U.S. 104, 117-118, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972) (stating that the Court had never “suggested that students, teachers, or anyone else has an absolute right to use all parts of a school building or its immediate environs for his [or her] unlimited expressive purposes”); cf. Widmar v. Vincent, 454 U.S. 263, 276-277, 102 S.Ct. 269, 277-278, 70 L.Ed.2d 440 (1981).
In Widmar, Justice Stevens, concurring in judgment, has provided an insightful analysis of the special character of institutions of higher education:
Today most major colleges and universities are operated by public authority. Nevertheless, their facilities are not open to the public in the same way that streets and parks are. University facilities — private or public- — are maintained primarily for the benefit of the student body and the faculty. In performing their learning and *395teaching missions, the managers of a university routinely make countless decisions based on the content of communicative materials. They select books for inclusion in the library, they hire professors on the basis of their academic philosophies, they select courses for inclusion in the curriculum, and they reward scholars for what they have written. In addition, encouraging students to participate in extracurricular activities, they necessarily make decisions concerning the content of those activities.
454 U.S. at 278, 102 S.Ct. at 278 (Stevens, J., concurring in judgment). In the present case, the University, by officially recognizing Greek-letter social organizations and participating in the planning of their events, inevitably has participated in the activities of those groups. Therefore, it must retain the ability to refuse to sanction certain behavior which infringes on the rights of other students. The University need not allow activity distinctly injurious to its objectives.
Certainly, the most fundamental concern of a university is to provide the optimum conditions for learning. The majority concedes that “the University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education.” Therefore, the University must have some leeway to regulate conduct which counters that interest, and thereby infringes upon the right of other students to learn. See Tinker, 393 U.S. at 513, 89 S.Ct. at 740; cf. R.A.V., - U.S. at -, 112 S.Ct. at 2565 (Stevens, J. concurring) (“A selective proscription of unprotected expression designed to protect ‘certain persons or groups’ would be constitutional if it were based on a legitimate determination that the harm created by the regulated expression differs from that created by the unregulated expression.”).
By concluding that a university must be allowed to regulate expressive conduct which runs directly counter to its mission, I do not mean to imply that a university has the unrestricted power to silence entirely certain perspectives. I wholeheartedly believe that the free exchange of ideas and debate are fundamental to a place of learning. Yet, they comprise only part of a university’s mission and must be balanced against a university’s other interests, especially those interests which rise to the level of constitutional significance.*
Moreover, if the University, in advance, had refused to allow the Fraternity to perform its intended skit, the marketplace of ideas would hardly have been endangered. The Fraternity, if it wished, could have presented its ideas and perspectives on the value of women and Blacks in an open debate, allowing other students to challenge its perspective.
All in all, my concurrence rests on the unrevoked permission to give the skit. I find it unnecessary, and of doubtful validity, to suggest that, regardless of such approval, there was any First Amendment provision guaranteeing the right to give the skit, in circumstances under which it was inextricably linked with George Mason University.
In a case decided one month prior to R.A.V., the Supreme Court noted that among the most difficult First Amendment cases were those requiring a reconciliation of our commitment to free speech with our commitment to other constitutional rights. Burson v. Freeman, - U.S. -, -, 112 S.Ct. 1846, 1851, 119 L.Ed.2d 5 (1992). in Burson, the Court ultimately upheld the content-based regulation, namely, a Tennessee law prohibiting election-day political speeches within 100 feet of a polling place, holding that the State’s interest in protecting the right to vote was sufficiently compelling.