Truth, an unincorporated association; v. Kent School District;

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUTH, an unincorporated association;
et al.,
Plaintiffs - Appellants,
v.
KENT SCHOOL DISTRICT; et al.,
Defendants - Appellees.
No. 04-35876
D.C. No. CV-03-00785-MJP
Western District of Washington,
Seattle
ORDER
Before: WALLACE, WARDLAW, and FISHER, Circuit Judges.
Judge Wardlaw and Judge Fisher have voted to deny the Petition for
Rehearing En Banc, and Judge Wallace so recommends.
The full court was advised of the Petition for Rehearing En Banc. A judge
of the court requested a vote on whether to rehear the case en banc, but the request
failed to receive a majority of the votes of the nonrecused active judges in favor of
en banc rehearing.
Appellant’s Petition for Rehearing En Banc is DENIED.
FILED
NOV 17 2008
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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What I object to is contained in the panel’s “concurrence” signed by1
Judges Fisher and Wardlaw. This is no standard concurrence, however, because
two of the three members of the panel concur in it. Thus, it is the opinion of the
panel on this issue and creates binding precedent. See G.O. 4.5 (“[T]he
determination of each appeal . . . shall be evidenced by a written disposition
BEA, Circuit Judge, dissenting from the denial of rehearing en banc, joined by
O’SCANNLAIN, Circuit Judge:
A Christian Bible study group named “Truth” sought official recognition by
a high school. Such recognition would entitle the group to use school rooms to
hold lectures and discussions regarding the Bible and its teachings. Any group so
recognized could also apply to use school materials and supplies to spread its
message, at reduced prices. The school refused official recognition to Truth
because it viewed Truth’s requirement that members comply “‘in good faith with
Christian character, Christian speech, Christian behavior, and Christian conduct as
generally described in the Bible’” as being discrimination based on religion. Truth
v. Kent Sch. Dist., 542 F.3d 634, 639 (9th Cir. 2008).
The government’s ability to regulate membership in a discussion group is
the ability to regulate the viewpoint of the group. This case merited en banc
review because a state school district should not require a Christian Bible study
group to allow into its group non-Christians and Christians alike, as a condition for
providing its school facilities and support. Yet this is what the majority
concurrence now holds. It reached that result by confusing the school’s1

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concurred in by a majority of the panel assigned to act thereon.”).
2
viewpoint-neutral right to limit speech in a limited public forum with a necessarily
viewpoint-affecting regulation of the right freely to associate to express one’s
views.
No one argues a school cannot limit what topics student groups can discuss
on campus. It is quite another thing to dictate who must be allowed into
membership, so to affect the group’s expression of viewpoints on such topics.
Unfortunately, the majority concurrence does just that: it tells the Christian
Bible study group that because its membership is open only to those who comply
“‘in good faith with Christian character, Christian speech, Christian behavior, and
Christian conduct as generally described in the Bible,’” the School District can
refuse to extend the benefits which go with its official recognition of the Club.
Truth, 542 F.3d at 639. The majority concurrence does this by mistakenly
applying the law relating to permissible restrictions in “limited public forums,”
rather than applying the required law of “expressive associations.” Because the
majority concurrence makes circuit law, and because it is contrary to Supreme
Court rulings and creates a circuit split with the Seventh Circuit, this case merited
en banc review; I must dissent from the denial of rehearing en banc.

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The majority states: “As our opinion explains, when the state creates a2
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.” Truth, 542 F.3d at 651
(Fisher, J. and Wardlaw, J., concurring).
3
Discussion
The majority concurrence seems to reason that if the school can reasonably
regulate the topics to be discussed by a group or the groups who can discuss such
topics, it can regulate the membership of such groups.
Yet regulation of such topics and groups can never be based on the
viewpoints to be expressed. That much the majority concurrence admits. That is,2
the school could decide to ban all groups that wish to speak on abortion, on the
ground the subject is not within the description of the purpose of a limited public
forum dedicated to discussion of campus activities. What it could not do is allow
speech only to pro-life speakers, but not allow it to proponents of abortion on
demand.
Government action that infringes on the right of expressive association is
subject to strict scrutiny: The government must show that its restriction is
“adopted to serve compelling state interests, unrelated to the suppression of ideas,
that cannot be achieved through means significantly less restrictive of associational

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4
freedoms.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (internal citation
and quotation marks omitted). By contrast, government action that infringes on the
right of free speech in a limited public forum such as a school, is subject to a lower
level of scrutiny. The government can “reasonably” regulate topics so long as the
restrictions are viewpoint neutral. It can also regulate the time, place and manner
of speech. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
828–29 (1995). By applying the limited public forum test to the Club’s right to
decide who its members will be, the majority concurrence has lessened the scrutiny
placed on restrictions of the right of expressive association.
Henceforth, school groups in this circuit will not be able to exclude
unwanted members from groups formed for expressive association, if the school
authorities have some “reasonable” basis upon which to limit their ability to
exclude members. Such denial of the groups’ right of exclusion will neither have
to be justified by any compelling interest of the school, nor narrowly tailored to
restrictions needed only to advance that interest, contrary to Supreme Court
precedent.
I. The majority concurrence’s holding fails to follow binding Supreme
Court precedent.
The essential problem with the majority is that it applies a Rosenberger “free

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5
speech” analysis (when the content of the speech is known and is outside a
reasonably set topic area) to what is a Dale “freedom of association” case (which
deals with the formulation of the content of such speech).
The majority concurrence held the School District was restricting only
“access” to a limited public forum because of the subject matter to be discussed.
See Rosenberger, 515 U.S. at 828–38 (holding that in a limited public forum such
as a high school, the school can “reasonably” regulate topics of discussion so long
as the restrictions are viewpoint neutral); Truth, 542 F.3d at 651 (Fisher, J. and
Wardlaw, J., concurring). But this is not what happened. The School District told
the Club that it could not be recognized because it required its members to comply
“‘in good faith with Christian character, Christian speech, Christian behavior, and
Christian conduct as generally described in the Bible.’” Truth, 542 F.3d at 639.
Thus, it was telling the Club how its expression must be determined. In doing so,
the majority’s holding flies directly in the face of Supreme Court precedent. “The
forced inclusion of an unwanted person [Here, a non-Christian in a Christian Bible
study group] in a group infringes 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, 530 U.S. at 648.
In Dale, a scout leader was fired from the Boy Scouts once the Scouts

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6
discovered Dale was actively involved in the homosexual rights movement. 530
U.S. at 644–45. The Court held “Dale’s presence in the Boy Scouts would, at the
very least, force the organization to send a message, both to the youth members
and the world, that the Boy Scouts accepts homosexual conduct as a legitimate
form of behavior.” Id. at 653. Thus, Dale’s presence would “interfere with the
Boy Scouts’ choice not to propound a point of view contrary to its beliefs.” Id. at
654. Dale is not only illuminating, it is determinative of this case. The same test
applied in Dale should apply here.
In Dale, the Court stated:
In Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), we observed
that implicit in the right to engage in activities protected by the First
Amendment is a corresponding right to associate with others in pursuit of a
wide variety of political, social, economic, educational, religious, and
cultural ends. This right is crucial in preventing the majority from imposing
its views on groups that would rather express other, perhaps unpopular,
ideas. See ibid. (stating that protection of the right to expressive association
is especially important in preserving political and cultural diversity and in
shielding dissident expression from suppression by the majority).
Government actions that may unconstitutionally burden this freedom may
take many forms, one of which is intrusion into the internal structure or
affairs of an association like a regulation that forces the group to accept
members it does not desire. Forcing a group to accept certain members may
impair the ability of the group to express those views, and only those views,
that it intends to express. Thus, freedom of association plainly presupposes a
freedom not to associate.
Id. at 647–48 (citations, internal quotation marks, and brackets omitted).

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7
As was the case of the Boy Scouts, the school district here “at the very least”
forces the Christian Bible study group to send a message that its agenda,
discussions, and meetings can be framed, and their content determined, by non-
Christians.
Another form of interference with the right of expressive association was
involved in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston,
515 U.S. 557 (1995). There, Massachusetts law was applied to force the inclusion
of homosexuals and bisexuals to participate in a St. Patrick’s Day parade organized
by a separate group. The Court found this forced association would alter the
parade organizers’ intended message. Id. at 573. Hence, the forced presence of the
homosexual contingent would have a substantial effect on the content of the
association’s expression and violated the association’s First Amendment right to
expressive association. If forced inclusion of unwanted marchers has a “substantial
effect” on the group’s intended message, how much more so does the forced
inclusion of non-believers to direct the message given by a religious group to its
members and the public?
Further, the majority concurrence fails to discuss the seminal case of
Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1980), where the
Court held Wisconsin could not order the Democratic National Convention to have

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8
the Wisconsin delegation vote for the candidate who had won the Wisconsin
primary. Why? Because the Wisconsin primary was an “open” primary, which
allowed all voters, not just publicly professed and registered Democrats, to vote for
Democratic candidates. Rule 2A of the National Democratic Convention allowed
for seating of (and voting by) delegates only if the delegates were publicly
professed and registered Democrats. Democratic Party, 450 U.S. at 109. The
Court said:
This First Amendment freedom to gather in association for the
purpose of advancing shared beliefs is protected by the Fourteenth
Amendment from infringement by any State. And the freedom to
associate for the ‘common advancement of political beliefs’
necessarily presupposes the freedom to identify the people who
constitute the association, and to limit the association to those people
only.
Id. at 121–22 (citations omitted).
In Democratic Party, the National Democratic Party “expressed the concern
that ‘a full opportunity for all Democrats to participate is diluted if members of
other political parties are allowed to participate in the selection of delegates to the
Democratic National Convention.’” Id. at 116–17.
Change the name “Democrat” to “Christian” and the same reasoning applies
here. A full opportunity for professed Christians to participate in the direction of
Club affairs is “diluted” if members of other faiths—or persons without any

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9
religious faith—must have a voice in the group’s expression.
Just as the issue in Democratic Party was whether the State could compel
the National Democratic Party to seat a delegation chosen in a way that violated
the Party’s rules, the issue here is whether the School District can, as a condition of
its “acknowledgment” (recognition), compel the Club to choose its members in a
way that violates the Club’s rules. The answer was “NO” in Democratic Party, id.
at 126, and should be “NO” here.
II. Governmental infringements upon the right to expressive association
are reviewed under strict scrutiny, not a limited public forum analysis.
Unfortunately, the majority concurrence ignored the reasoning which
underpins the right of expressive association: that it helps to protect the ability to
exercise all the other First Amendment rights, such as freedom of speech and the
free exercise of religion:
The forced inclusion of an unwanted person in a group infringes 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. But the freedom of expressive
association, like many freedoms, is not absolute. We have held that
the freedom could be overridden by regulations adopted to serve
compelling state interests, unrelated to the suppression of ideas, that
cannot be achieved through means significantly less restrictive of
associational freedoms.
Dale, 530 U.S. at 647–48 (2000) (citations, internal quotation marks, and brackets

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10
omitted) (emphasis added).
Despite this clear mandate, the majority concurrence stated that “when the
state creates a limited public forum, . . . 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 expressive association.” Truth, 542 F.3d at 651 (Fisher, J.
and Wardlaw, J., concurring). Further, the majority concurrence holds that “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.” Id. at 652
(Fisher, J. and Wardlaw, J., concurring). The majority concurrence relies on
Rosenberger for this proposition.
In Rosenberger, the University of Virginia withheld authorization for
payments to a printer on behalf of a student-run newspaper because the newspaper
promoted religious beliefs. 515 U.S. at 827–28. There was no claim the
University required the group to determine what it wanted printed by persons who
did not share the group’s beliefs. The newspaper sued, raising only a free speech
claim, not an expressive association claim. Id. Thus, the majority concurrence’s
reliance on Rosenberger is misplaced.
Furthermore, the majority concurrence’s opinion causes an inter-circuit split

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11
with the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d
853 (7th Cir. 2006). In Walker, the dean of a public law school revoked the
official status of the Christian Legal Society chapter at the law school because the
Society’s membership policy, which excluded from membership those who refused
to sign a statement of faith, violated the law school’s anti-discrimination policy.
453 F.3d at 857. Although the Society allowed anyone to attend its meetings, only
those who signed the statement of faith were permitted to be voting members and
officers of the organization. Id. at 858.
The Society sued, raising expressive association and free speech claims.
The court analyzed the two claims separately, applying strict scrutiny to the
expressive association claim and the limited public forum analysis to the free
speech claim. Walker, 453 F.3d at 861–67.
The Walker court reversed the district court’s denial of an injunction
restoring the official status of the Society. It first ruled the Society had
demonstrated probability of success on its “expressive association” claim; the law
school had withdrawn official status solely on the grounds that the Society required
its controlling membership and officers to abjure homosexual conduct, a claimed
violation of the school’s anti-discrimination rules. As such, the school’s rules were
found to violate the Society’s right to select its members who would significantly

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Of course, the majority’s opinion differs from Walker’s in that it remanded3
to the district court for factual development of whether the School District was
denying Equal Protection rights to Truth by “acknowledging” groups which
discriminated on bases other than religion (i.e., gender) which bases were also
prohibited by the school discrimination policy.
12
affect the Society’s expression.
The Walker court then turned to the free speech claim. It held that even if
official status recognition afforded only “limited public forum” availability, the
record compelled a finding the Society was not granted equal protection. The
school had allowed Muslim, Adventist and other groups to exclude controlling
membership on the basis of beliefs conflicting with the central tenets of the
organizations. The circuit court issued an injunction ordering restoration of the3
Society’s official status.
Curiously, the majority concurrence acknowledges the Seventh Circuit
applied strict scrutiny to the expressive association claims, but claimed it did so
because it could not determine whether the university had created an open, limited
or nonpublic forum. Truth, 542 F.3d at 652 n.1 (Fisher, J. and Wardlaw, J.,
concurring) (“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.”). This is an error that can be made only by a partial reading of the Walker

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13
decision. The Walker court actually wrote:
Whether SIU [the school in question]’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. But even assuming at this state of the litigation that
SIU’s student organization forum is a non-public forum-making the
lowest level of scrutiny applicable—we believe CLS has the better of
the argument.
* * *
Whether the policy is reasonable in light of the purposes the forum
serves cannot be determined on this record because we do not know
precisely what those purpose are (we could speculate, but that would
be inappropriate). We need not reach this aspect of the inquiry,
however, given our conclusion that CLS has demonstrated a
likelihood of success on its claim that SIU is applying its policy in a
viewpoint discriminatory fashion. SIU has singled out CLS for
derecognition. The record may be spartan, but every part of it right
now points to success for CLS.
453 F.3d at 866–67 (emphasis added).
The Walker court determined that even if the free speech claim were tested
under the lowest scrutiny of the “reasonableness” test, the Society was still entitled
to its injunction. To say that the Seventh Circuit did not rule on the expressive
association claim because it could not rule on the free speech claim is not only a
non sequitur because the two claims are distinct; it is a flat-out misrepresentation.
Walker is on all fours with our case. The majority concurrence clearly
establishes a circuit conflict.

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Herbert E. Meyer, Personnel is Policy, Feb. 4, 2007,4
http://www.americanthinker.com/blog/2007/02/personnel_is_policy.html, referring
to Herbert E. Meyer in the Reagan administration. For a more recent thought in
the same vein, see Thomas B. Edsall, The Obama Test: Personnel is Policy,
October 24, 2008, http://www.huffingtonpost.com/2008/10/24/the-obama-test-
personnel_n_137757.html.
14
Conclusion
The majority concurrence correctly recognized that Free Speech regulation
of a school’s group cannot turn on the viewpoint the group expresses. But by
permitting the school to regulate the membership which controls the group’s
expression, it ineluctably controls the group’s viewpoint—“personnel is policy.”4
From this error, the majority concurrence logically assesses the school action by a
“reasonable relation” test rather than the “strict scrutiny” test, which expressive
association requires under the First Amendment. For both these reasons, and
because the majority concurrence’s opinion clashes with a Seventh Circuit case
involving similar non-Christian membership requirement in a Christian group, en
banc rehearing should have been granted. I must respectfully dissent from the
order denying en banc review.

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WARDLAW and FISHER, Circuit Judges, concurring in the denial of
rehearing en banc:
We write to address significant inaccuracies in Judge Bea’s dissent from
rehearing en banc.
As the unanimous opinion made clear, this case is not about the school’s
recognition of Truth as a school group, but the school creating Truth “as a school-
sponsored group.” Truth v. Kent Sch. Dist., 542 F.3d 634, 648 (9th Cir. 2008).
Our concurrence amplified this point, explaining that the government is not
required to subsidize expression, including expression through expressive
association, within limited forums of its own creation as long as it restricts access
to the forum according to reasonable, viewpoint-neutral rules. See Eugene Volokh,
Freedom of Expressive Association and Government Subsidies, 58 STAN. L. REV.
1919, 1938-44 (2006) (arguing that the government is not obligated to support
expressive association, and only must not discriminate based on viewpoint).
Additionally, we have not created a circuit split with Christian Legal Society
v. Walker, 453 F.3d 853 (7th Cir. 2006). In Walker, the Seventh Circuit held that
the Christian Legal Society showed a likelihood of success on free speech and
expressive association claims. In our concurrence, we noted that the Seventh
Circuit explicitly stated “that it could not even determine, on the limited record
before it, whether the university had created an open, limited, or nonpublic forum.”

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2
Truth, 542 F.3d at 652 n.1 (Fisher & Wardlaw, JJ., concurring). We did not, as
Judge Bea asserts, say that the Seventh Circuit applied strict scrutiny to SIU’s
alleged violation of CLS’s expressive association rights “because it could not
determine” what type of forum was created. Dissent at 12 (emphasis added). The
unanimous opinion’s holding is entirely consonant with the Seventh Circuit: we
agreed that viewpoint discrimination is always prohibited no matter what type of
forum exists and remanded Truth’s claim that Kent School District applied its
nondiscrimination policy in a selective and discriminatory manner for further
investigation by the district court.

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