Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez,
561 U.S. 661 (2010)

Annotate this Case




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 recognition to student groups through its “Registered Student Organization” (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, including 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 charters student chapters at law schools throughout the country. These 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. 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. 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 expressive association: Hastings did not order CLS to admit any student, nor did the school proscribe any speech; Hastings merely placed conditions on the use of school facilities and funds. The court also rejected CLS’s free exercise argument, stating that the Nondiscrimination 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.


   1. The Court considers only whether a public institution’s conditioning 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: “Hastings requires that [RSOs] allow any student to participate, … regardless of [her] status or beliefs. For example, the Hastings Democratic 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 condition on access to the RSO forum; it therefore does not transgress First Amendment limitations. Pp. 12–31.

      (a) The Court’s limited public forum decisions supply the appropriate framework for assessing both CLS’s free-speech and expressive-association claims; those decisions recognize that a governmental 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 Visitors 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 associational freedom in the context of public accommodations, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 623. But, because CLS’s expressive-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 observations 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 expressive-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 impermissible 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 “reserv[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 treatment because of their points of view. See Healy v. James, 408 U. S. 169; Widmar v. Vincent, 454 U. S. 263; and Rosenberger. Most recently and comprehensively, in Rosenberger, the Court held that a university generally may not withhold benefits from student groups 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 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. 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 administrators. 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 recognized 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’ decisions about the character of its student-group program are due decent 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 Policy without inquiring into an RSO’s motivation for membership restrictions. CLS’s proposal that Hastings permit exclusion because of belief but forbid discrimination due to status would impose on Hastings the daunting task of trying to determine whether a student organization 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 students. Fourth, the policy incorporates state-law discrimination proscriptions, thereby conveying Hastings’ decision to decline to subsidize 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 Educators’ 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 advantage 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 activities 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, “compare 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 reasonable 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 limited public forum, moreover, “need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U. S., at 808. CLS’s contention 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 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. 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 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. Hastings’ 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 behavior. Pp. 29–31.

   3. Neither lower court addressed CLS’s argument that Hastings selectively 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 preserved. 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 Kennedy, J., filed concurring opinions. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

Primary Holding

A public school can require a student organization to open eligibility to all students in return for gaining official recognition and access to school funds and other assistance.


The Registered Student Organization program at the Hastings College of the Law, a public law school, allowed the school to provide official recognition to certain students groups. Upon receiving this status, the groups could use school funds, facilities, name and logo, and forms of communication. However, the status was contingent on complying with the Hastings Nondiscrimination Policy, which prohibited exclusion based on religion and sexual orientation, among other characteristics. The law school believed that its policy required recognized groups to accept all students who wished to participate, join, or help lead them.

In its bylaws, the Christian Legal Society at Hastings mandated that members and leaders sign a Statement of Faith and uphold certain principles in their everyday lives. One of these was the belief that sexual intercourse should happen only in the context of marriage between a man and a woman. No student who engaged in homosexual intercourse or differed from the beliefs articulated in the Statement of Faith could participate in the organization. As a result, Hastings refused official recognition to the Christian Legal Society because its bylaws excluded certain students based on their religion and sexual orientation.

Hastings still allowed CLS to use school facilities for its meetings and activities, even though it did not receive an exemption from the Nondiscrimination Policy. However, CLS sued the law school on the basis that the RSO policy infringed on the First Amendment rights to free speech, free association, and the free exercise of religion.



  • Ruth Bader Ginsburg (Author)
  • John Paul Stevens
  • Anthony M. Kennedy
  • Stephen G. Breyer
  • Sonia Sotomayor

The society is unable to challenge the overall constitutionality of the law school's nondiscrimination policy because the parties stipulated to a contradictory set of facts during the summary judgment stage. The issue thus is limited to whether the law school acted unconstitutionally in requiring compliance with an unrestricted access policy as a condition for receiving access to a student organization forum. The First Amendment does not prevent a government entity from restricting speech if those restrictions are reasonable for the forum and viewpoint-neutral. The free association claim should be considered in conjunction with the free speech claim because those arguments are essentially identical.

The forum in this case can be identified as a limited public forum, so a more deferential level of scrutiny should be applied to government restrictions on it. This is true no matter whether rights regarding free speech or free association are asserted. While strict scrutiny sometimes has been applied to restrictions on the freedom of association, this would be incompatible with the status of a limited public forum. The society still has the ability to exclude members for any reason that it chooses if it does not have official recognition.

Considering whether the all-comers policy is reasonable, the court should take note of the special characteristics of the school environment. The administration of a public university should receive deference in its decisions about the character of students groups, and the stated justifications of the law school are reasonable in this context. The law school may try to ensure that all students have access to the opportunities for participation and leadership that are provided by student groups. It would be inappropriate to force a student to fund a group that would not allow that student to participate in it, and mandatory student-activity fees are the basis for funding the officially recognized groups. The society unreasonably suggests that the school alter its policy to allow exclusion based on belief but not on status, which would subject the school to the undue burden of discerning whether an exclusion based on belief is simply an excuse for an exclusion based on status. The school also acted appropriately in basing its policy on state law anti-discrimination provisions, since it is justified in refusing to fund conduct that the state disapproves.

Moreover, plenty of alternative options are available for the society to transmit its message. The society still was able to use some of the school's facilities, and it could use social networking sites and other electronic outlets as a meaningful substitute for internal school methods of communication. A viewpoint-neutral analysis places significance on the availability of these alternative ways in which a group can exercise its First Amendment rights. There is no evidence to support the society's assertion that the policy will encourage students to take over officially recognized groups in order to subvert their missions. Law students likely would not engage in this type of disruptive behavior, and the school can be expected to incorporate its expectation that they will not engage in this behavior into its educational approach.

The policy also is viewpoint neutral, and the society even concedes that it is nominally neutral. The only argument to the contrary is that it places undue burdens on groups that are not emblematic of the mainstream students on the campus. However, a regulation may be considered viewpoint neutral even if it has an incidental effect on some types of speakers or speech to a greater extent than others. The policy hinges on whether a group rejects potential members or leaders rather than digging into the reasons motivating the rejection.


  • Anthony M. Kennedy (Author)

In general, the government may not restrict the efforts of a group to limit its membership to people who fully agree with its goals. This case marks a clash between the society's valid interest in that area against the law school's legitimate purpose for having created a limited forum, which was to encourage students to explore different viewpoints that would help them mature as individuals and develop a stronger sense of identity. The policy might be unconstitutional if the law school were trying to use it to undermine the society and suppress its viewpoints, but there is no evidence that this was occurring. There also is no evidence that the policy ever resulted or was intended to result in restricting or silencing speech in any particular instance.


  • Samuel A. Alito, Jr. (Author)
  • John G. Roberts, Jr.
  • Antonin Scalia
  • Clarence Thomas

The policy may not actually be viewpoint neutral because the school created it during the course of this litigation, and it may be merely a pretext on which to base viewpoint administration. It is apparent that the law school refused to officially recognize the society because it disagreed with its viewpoint. While the law school argues that this policy existed for over a decade, it did not bring it to the attention of the law school community or apparently even put it in writing before the litigation. Previously, the law school had granted official recognition to other groups that restricted participation in their bylaws to students who agreed with their viewpoints.

The joint stipulation of fact did not prevent the society from raising some of its arguments on appeal, since it related to the general Nondiscrimination Policy rather than the more recent all-comers policy. The majority also should have recognized the possibility that, while the society did have access to school facilities, this access may have been contingent on payment and probably would have been available only if officially recognized groups had not needed the facilities. Viewpoint discrimination is not acceptable in any degree, even if it does not have a significant impact. The Nondiscrimination Policy is unconstitutional on its face because it covers religious viewpoints, and public law schools must adhere rigidly to absolute viewpoint neutrality.

Under the Nondiscrimination Policy, the school allowed student organizations to select members who are dedicated to certain beliefs while impermissibly disfavoring certain religious groups. These were the only types of groups that were required to admit members with different views, which can be clearly identified as viewpoint discrimination. A similar analysis leads to the conclusion that the policy impermissibly discriminated against certain viewpoints regarding sexual morality. The application of the policy also was not viewpoint neutral, even if one could argue that the policy was viewpoint neutral on its face.

The majority creates an overly vague standard by holding that the law school is justified in requiring student groups to admit members who seek to change its message but would not be justified in requiring groups to admit members who would seek to cause their demise. It is too difficult to separate these types of viewpoints and goals, and a stark change in the message of a group essentially would equate to its demise if its original viewpoint was central to its purpose. The law school cannot forestall the threat of such a disruption by requiring members to attend meetings, pay membership fees, and generally act politely. Free speech is undermined if religious groups are diluted by being forced to admit members who openly disagree with their views.


  • John Paul Stevens (Author)

Case Commentary

It is important to be aware that the decision did not rule on whether the overall policy was unconstitutional on its face. Instead, it was limited to finding that an exception should be made for this organization as this policy was applied to it. A rule is not necessarily unconstitutional if it has a different impact on some groups than on others.

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