Truth v. Kent School District

FISHER, Circuit Judge,

concurring,

joined by Judge WARDLAW:

We write separately to amplify on one issue discussed in our main opinion. Truth argued that it must be granted access to the ASB forum because conditioning its access to the ASB program on a change to its discriminatory membership policy would infringe its right to engage in speech through “expressive association.” Expressive association may be burdened when the state requires a group to change its membership criteria, see Boy Scouts of Am. v. Dale, 530 U.S. 640, 656, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000); Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), or when the state conditions access to a traditional public forum upon such changes, Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). When the use of school facilities is part of a general public forum, denying access to those facilities may also implicate the right to associate freely. See Healy v. James, 408 U.S. 169, 180-81, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (noting that the “college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’ ” and that the complete “denial of use of campus facilities for meetings and other appropriate purposes” implicated a group’s right to expressive association).

Even assuming, however, that Truth’s exclusion of non-Christians allows it to engage in speech through expressive association, its exclusion from the ASB program on account of its discriminatory policy does not infringe its rights under the First Amendment. As our opinion explains, when the state creates a limited public forum, like the ASB program at issue here, it may restrict access to that forum so long as the restrictions are “viewpoint neutral and reasonable in light of the purpose served by the forum,” even if these rules have the effect of limiting a group’s ability to engage in protected speech, such as the right to speak, publish on a particular topic or engage in expressive association. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, *652115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain growps or for the discussion of certain topics.” (emphasis added)).

We reject Truth’s suggestion that state action that burdens a group’s ability to engage in expressive association must always be subject to strict scrutiny, even if the group seeks to engage in expressive association through a limited public forum. Expressive association is simply another way of speaking, only the group communicates its message through the act of associating instead of through an act of “pure speech” such as publishing, marching, speaking or performing. See Dale, 530 U.S. at 648, 120 S.Ct. 2446 (holding that the First Amendment protects a group’s ability to exclude members, if including such members would “impair the ability of the group to express those views, and only those views, that it intends to express”). There is no question that acts of expressive association are protected forms of speech under the First Amendment. See id. at 656, 120 S.Ct. 2446; Hurley, 515 U.S. at 579, 115 S.Ct. 2338. When the state restricts access to a limited public forum in a way that interferes with a group’s speech or expressive association, however, we apply the lesser standard of scrutiny, even if the same burden on a group’s rights outside a limited public forum would be subject to strict scrutiny. See Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510 (applying limited public forum analysis to a university policy that excluded a group’s access to the school’s student activity fund, thereby preventing it from publishing a newspaper). To hold otherwise would accord an act of “pure speech” such as publishing a newspaper — the core of what the First Amendment protects'— less protection than an act of expressive association. We find no support for such a proposition, and Truth has identified none.1 Truth, of course, has the option of operating as a Policy 2153 group on school grounds, see 524 F.3d at 963, and as such would be able to restrict its membership unfettered by the school’s nondiscrimination policy. If Truth wants the additional benefits that come from participation in the ASB program, however, Truth must comply with the school’s reasonable, viewpoint-neutral rules.

. In Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir.2006), the Seventh Circuit reversed the denial of a preliminary injunction, holding that a university group had shown that it was "reasonably likely to succeed on the merits” of its First Amendment claim after being excluded from campus for violating the school’s nondiscrimination policy, which the group claimed infringed its right to expressive association. Although the Seventh Circuit applied strict scrutiny in addressing this claim, it notably stated that it could not even determine, on the limited record before it, whether the university had created an open, limited, or nonpublic forum. See id. at 866 ("Whether SIU’s student organization forum is a public, designated public, or nonpublic forum is an inquiry that will require further factual development, and that is a task properly left for the district court.”) Walker did not say that strict scrutiny would be appropriate in all cases, even if the university had created something less than an open forum.