Christian Legal Soc. Chapter of the University of California,..., 561 U.S. 661 (2010)

130 S.Ct. 2971, 177 L.Ed.2d 838, 78 USLW 4821, 10 Cal. Daily Op. Serv. 7985...

KeyCite Yellow Flag - Negative Treatment

Declined to Extend by Jackson v. Abercrombie, D.Hawai'i, August 8,

2012

130 S.Ct. 2971

Supreme Court of the United States

CHRISTIAN LEGAL SOCIETY CHAPTER

OF THE UNIVERSITY OF CALIFORNIA,

HASTINGS COLLEGE OF THE LAW, aka

HASTINGS CHRISTIAN FELLOWSHIP

v.

Leo P. MARTINEZ et al.

No. 08–1371.

|

Argued April 19, 2010.

|

Decided June 28, 2010.

Synopsis

Background: Student religious organization brought

§ 1983 action alleging that law school's policy of

requiring officially recognized student groups to comply

with school's nondiscrimination policy violated the

organization's First and Fourteenth Amendment rights

to free speech, expressive association, and free exercise

of religion. The United States District Court for the

Northern District of California, Jeffrey S. White, J., 2006

WL 997217, awarded summary judgment for law school.

Student organization appealed. The United States Court

of Appeals for the Ninth Circuit, 319 Fed.Appx. 645,

affirmed, and certiorari was granted.

Holdings: The Supreme Court, Justice Ginsburg, held

that:

[1] student organization was bound by its stipulation of

facts;

[2] law school's policy was reasonable; and

[3] policy was viewpoint neutral.

Affirmed and remanded.

Justice Stevens filed concurring opinion.

Justice Kennedy filed concurring opinion.

Justice Alito filed dissenting opinion, in which Chief

Justice Roberts and Justices Scalia and Thomas joined.

West Headnotes (13)

[1] Stipulations

Agreed statement of facts

Student religious organization was bound,

on appeal in its § 1983 action challenging a

law school's policy with regard to officially

recognized student groups, by the stipulation

of facts it submitted at the summary judgment

stage. 42 U.S.C.A. § 1983.

22 Cases that cite this headnote

[2] Stipulations

Agreed statement of facts

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.

59 Cases that cite this headnote

[3] Constitutional Law

Justification for exclusion or limitation

Under the First Amendment, restrictions on

access to a limited public forum must be

reasonable and viewpoint neutral. U.S.C.A.

Const.Amend. 1.

83 Cases that cite this headnote

[4] Constitutional Law

Freedom of Association

In the context of public accommodations,

laws and regulations that constrain

associational freedom are subject to close

scrutiny, and are permitted, under the First

Amendment, only if they serve compelling

state interests that are unrelated to the

suppression of ideas—interests that cannot be

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advanced through significantly less restrictive

means. U.S.C.A. Const.Amend. 1.

2 Cases that cite this headnote

[5] Constitutional Law

Post-Secondary Institutions

Constitutional Law

Freedom of Association

Constitutional Law

Law schools

Constitutional Law

Extracurricular activities

Limited public forum analysis was

appropriate framework for assessing student

religious organization's allegation that law

school's policy of requiring officially

recognized student groups to comply with

school's nondiscrimination policy violated

the organization's First and Fourteenth

Amendment rights to free speech, expressive

association, and free exercise of religion;

such analysis adequately respected both

the organization's speech and expressiveassociation rights and the school's interests as

property owner and educational institution.

U.S.C.A. Const.Amends. 1, 14.

12 Cases that cite this headnote

[6] Constitutional Law

Viewpoint or idea discrimination

Constitutional Law

Property and Events

Under the First Amendment, 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. U.S.C.A.

Const.Amend. 1.

36 Cases that cite this headnote

[7] Constitutional Law

Post-Secondary Institutions

Constitutional Law

Post-secondary institutions

Constitutional Law

Law schools

Constitutional Law

Extracurricular activities

Education

Student organizations and government

In light of the special characteristics

of the school environment, law school's

policy of requiring officially recognized

student groups to comply with school's

nondiscrimination policy was reasonable,

for purposes of application of the limitedpublic-forum analysis in student religious

organization's § 1983 action alleging that

school's policy violated the organization's

First and Fourteenth Amendment rights

to free speech, expressive association, and

free exercise of religion; open access policy

ensured that the leadership, educational,

and social opportunities afforded by

officially recognized student groups were

available to all students, helped the

school police the terms of its policy

without inquiring into a student group's

motivation for membership restrictions,

encouraged tolerance, cooperation, and

learning, and advanced state-law goals.

U.S.C.A. Const.Amends. 1, 14; 42 U.S.C.A. §

1983.

10 Cases that cite this headnote

[8] Constitutional Law

Post-Secondary Institutions

Constitutional Law

Post-secondary institutions

Constitutional Law

Law schools

Constitutional Law

Extracurricular activities

Education

Student organizations and government

Law school's policy of requiring officially

recognized student groups to comply

with school's nondiscrimination policy was

viewpoint neutral, for purposes of application

of the limited-public-forum analysis in student

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religious organization's § 1983 action alleging

that school's policy violated the organization's

First and Fourteenth Amendment rights

to free speech, expressive association, and

free exercise of religion; policy required all

student groups to accept all comers. U.S.C.A.

Const.Amends. 1, 14; 42 U.S.C.A. § 1983.

34 Cases that cite this headnote

[9] Constitutional Law

Content-Neutral Regulations or

Restrictions

Under the First Amendment, 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. U.S.C.A. Const.Amend. 1.

17 Cases that cite this headnote

[10] Constitutional Law

Conduct, protection of

Under the First Amendment, even if a

regulation has a differential impact on groups

wishing to enforce exclusionary membership

policies, where the State does not target

conduct on the basis of its expressive content,

acts are not shielded from regulation merely

because they express a discriminatory idea or

philosophy. U.S.C.A. Const.Amend. 1.

12 Cases that cite this headnote

[11] Constitutional Law

Post-secondary institutions

Constitutional Law

Law schools

Constitutional Law

Extracurricular activities

Education

Student organizations and government

Law school's policy of requiring officially

recognized student groups to comply with

school's nondiscrimination policy did not

violate student religious organization's First

and Fourteenth Amendment rights to free

speech and expressive association; school

acted reasonably in conditioning official

recognition on open access, and that

condition was viewpoint neutral. U.S.C.A.

Const.Amends. 1, 14.

4 Cases that cite this headnote

[12] Constitutional Law

Post-Secondary Institutions

Constitutional Law

Extracurricular activities

Education

Student organizations and government

Law school's policy of requiring officially

recognized student groups to comply with

school's nondiscrimination policy did not

violate student religious organization's First

and Fourteenth Amendment rights to free

exercise of religion, where that policy was

an otherwise valid regulation of general

application that only incidentally burdened

religious conduct. U.S.C.A. Const.Amends.

1, 14.

7 Cases that cite this headnote

[13] Federal Courts

Presentation of Questions Below or on

Review;Record;Waiver

Supreme Court was not proper forum to air

issue, in student religious organization's § 1983

action alleging that law school's policy of

requiring officially recognized student groups

to comply with school's nondiscrimination

policy violated the organization's First and

Fourteenth Amendment rights to free speech,

expressive association, and free exercise of

religion, of whether the school selectively

enforced its all-comers policy, where no such

argument was addressed in either the District

Court or the Court of Appeals. U.S.C.A.

Const.Amends. 1, 14; 42 U.S.C.A. § 1983.

5 Cases that cite this headnote

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**2973 Syllabus *

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, **2974 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 crossmotions 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.

Held :

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, 120

S.Ct. 1346, 146 L.Ed.2d 193. The Court therefore rejects

CLS's attempt to escape from the stipulation and shift its

target to Hastings' policy as written. Pp. 2982 – 2984.

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. 2984 –

2995.

**2975 (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

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of the forum and viewpoint neutral, e.g., Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115

S.Ct. 2510, 132 L.Ed.2d 700. 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, 104 S.Ct. 3244, 82 L.Ed.2d 462.

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 limitedpublic-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, 104 S.Ct. 3244.

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-publicforum 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, 115

S.Ct. 2510. 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,

120 S.Ct. 2446, 147 L.Ed.2d 554. 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. 2984 – 2986.

(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, 92 S.Ct. 2338, 33

L.Ed.2d 266; Widmar v. Vincent, 454 U.S. 263, 102 S.Ct.

269, 70 L.Ed.2d 440; 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, 115 S.Ct. 2510. 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. 2987 – 2988.

(c) Hastings' all-comers policy is reasonable, taking

into account the RSO forum's function and “all

the surrounding circumstances.” **2976 Cornelius v.

NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 809,

105 S.Ct. 3439, 87 L.Ed.2d 567. Pp. 2988 – 2993.

(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, 102

S.Ct. 269. 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, 102 S.Ct. 3034, 73 L.Ed.2d 690. 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, 110 S.Ct. 2356,

110 L.Ed.2d 191, the Court approaches its task here

mindful that Hastings' decisions about the character of its

student-group program are due decent respect. Pp. 2988

– 2989.

(2) The justifications Hastings asserts in support of its allcomers 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

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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. 2989 – 2991.

(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, 103 S.Ct. 948, 74 L.Ed.2d 794. 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, 103 S.Ct. 948. Pp. 2991

– 2992.

**2977 (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, 105 S.Ct. 3439.

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, 118 S.Ct. 2168, 141 L.Ed.2d 500. 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. 2992 – 2993.

(d) Hastings' all-comers policy is viewpoint neutral. Pp.

2993 – 2995.

(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. P. 2993.

(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, 109 S.Ct. 2746, 105 L.Ed.2d 661. Hastings'

requirement that RSOs accept all comers, the Court is

satisfied, is “justified without reference to the content [or

viewpoint] of the regulated speech.” Ibid. It targets the act

of rejecting would-be group members without reference to

the reasons motivating that behavior. Pp. 2994 – 2995.

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. P. 2995.

319 Fed.Appx. 645, affirmed and remanded.

GINSBURG, J., delivered the opinion of the Court,

in which STEVENS, KENNEDY, BREYER, and

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SOTOMAYOR, JJ., joined. STEVENS, J., post, pp. 2995

– 2998, and KENNEDY, J., post, pp. 2998 – 3000,

filed concurring opinions. ALITO, J., filed a dissenting

opinion, in which ROBERTS, C.J., and SCALIA and

THOMAS, JJ., joined, post, pp. 3000 – 3020.

Attorneys and Law Firms

Michael W. McConnell, Stanford, CA, for petitioner.

Gregory G. Garre, Washington, DC, for respondents.

Kimberlee Wood Colby, Christian Legal Society,

Springfield, VA, Gregory S. Baylor, Timothy J. Tracey,

M. Casey Mattox, Alliance Defense Fund, Washington,

DC, Michael W. McConnell, Stanford, CA, for Petitioner.

**2978 Ethan P. Schulman, Crowell & Moring LLP,

Elise K. Traynum, University of California, Hastings

College of the Law, San Francisco, CA, Gregory G.

Garre, Maureen E. Mahoney, J. Scott Ballenger, Lori

Alvino McGill, Gabriel K. Bell Latham & Watkins

LLP, Washington, DC, for Hastings College of the Law

Respondents.

Shannon P. Minter, Christopher F. Stoll, San Francisco,

CA, Paul M. Smith, Duane C. Pozza, Daniel I. Weiner,

Anna M. Baldwin, Jennifer V. Yeh, Jenner & Block LLP,

Washington, DC, for Respondent–Intervenor.

Opinion

Justice GINSBURG delivered the opinion of the Court.

*667 In a series of decisions, this Court has emphasized

that the First Amendment generally precludes public

universities *668 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, 115 S.Ct. 2510, 132 L.Ed.2d 700

(1995); Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70

L.Ed.2d 440 (1981); Healy v. James, 408 U.S. 169, 92 S.Ct.

2338, 33 L.Ed.2d 266 (1972). This case concerns a novel

question regarding student activities at public universities:

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 agreement 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

relinquishing the advantages of recognition, to accept

members who do not share the organization's core

beliefs about religion and sexual orientation. From

the perspective of respondent Hastings College of

the Law (Hastings or the Law School), CLS seeks

special dispensation from an across-the-board openaccess requirement designed to further the reasonable

educational purposes underpinning the school's studentorganization program.

*669 In accord with the District Court and the

Court of Appeals, we reject CLS's First Amendment

challenge. Compliance with Hastings' all-comers policy,

we conclude, is a reasonable, viewpoint-neutral condition

on access to the student-organization forum. In requiring

CLS—in common with all other student organizations—

to choose between 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

encourages 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 classroom [to] further their **2979

education” and to help them “develo[p] leadership skills.”

Ibid.

Through its “Registered Student Organization” (RSO)

program, Hastings extends official recognition to student

groups. Several benefits attend this school-approved

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

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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 *670 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 prospective 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

(Nondiscrimination Policy), which binds RSOs, states:

“[Hastings] is committed to a policy against

legally impermissible, arbitrary or unreasonable

discriminatory practices. All groups, including

administration, faculty, student governments,

[Hastings]-owned student residence facilities and

programs sponsored by [Hastings], are governed by

this policy of nondiscrimination. [Hastings'] 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 nondiscrimination policy covers admission, access

and treatment in Hastings-sponsored programs and

activities.” Id., at 220.

*671 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 positions in the organization,

regardless of [her] status or beliefs.” Id., at 221. 2

Other law **2980 schools have adopted similar allcomers policies. See, e.g., Georgetown University Law

Center, Office of Student Life: Student Organizations,

available at http://www.law.georgetown.edu/StudentLife/

StudentOrgs/NewGroup.htm (All Internet 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 Student 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 Nondiscrimination Policy in 1990 until

the events stirring *672 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 homosexual 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 *673 because CLS barred students based on

religion and sexual orientation. Id., at 228.

CLS formally requested an exemption from the

Nondiscrimination Policy, id., at 281, but Hastings

declined to grant one. “[T]o be one of our studentrecognized organizations,” Hastings reiterated, “CLS

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must open its membership to all students irrespective of

their religious beliefs or **2981 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, several

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. §

1983. Its complaint alleged that Hastings' refusal to grant

the organization RSO status violated CLS's First and

Fourteenth Amendment rights to free speech, expressive

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 *674 of Hastings. The Law School's allcomers condition 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

association. “Hastings is not directly ordering CLS to

admit [any] studen[t],” the court observed, id., at 42a;

“[r]ather, Hastings has merely placed conditions on” the

use of its facilities and funds, ibid. “Hastings' denial

of official recognition,” the court added, “was not a

substantial impediment to CLS's ability to meet and

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 orientation,” 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:

“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).” Christian Legal Soc.

Chapter of Univ. of Cal. v. Kane, 319 Fed.Appx. 645,

645–646 (C.A.9 2009).

**2982 We granted certiorari, 558 U.S. 1076, 130 S.Ct.

795, 175 L.Ed.2d 558 (2009), and now affirm the Ninth

Circuit's judgment.

*675 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 written—

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 contends,

“targe[t] solely those groups whose beliefs are based

on religion or that disapprove of a particular kind of

sexual 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.

communicate as a group.” Id., at 49a.

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[1] CLS's assertion runs headlong into the stipulation of

facts it jointly submitted with Hastings at the summaryjudgment stage. In that filing, the parties specified:

“Hastings requires that registered student organizations

allow any student to participate, become a member, or

seek leadership positions in the organization, regardless

of [her] status or beliefs. Thus, for example, the Hastings

Democratic Caucus cannot bar students holding

Republican political beliefs from becoming members or

seeking leadership positions in the organization.” App.

221 (Joint Stipulation ¶ 18) (emphasis added; citations

omitted). 5

*676 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

**2983 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, 25

S.Ct. 456, 49 L.Ed. 826 (1905).

7 This entitlement *677 is

the bookend to a party's undertaking to be bound by the

factual stipulations it submits. See post, at 3005 (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).

[2] 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, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). Time and

again, the dissent races away from the facts to which CLS

stipulated. See, e.g., post, at 3001, 3002, 3003, 3005 –

3006, 3012 – 3013. 8 But factual stipulations are “formal

concessions *678 ... 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,

26 L.Ed. 539 (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

**2984 In light of the joint stipulation, both the District

Court and the Ninth Circuit trained their attention on

the constitutionality 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 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

[3] In support of the argument that Hastings' all-comers

policy treads on its First Amendment rights to free speech

and *679 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

governmental 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, 105

S.Ct. 3439, 87 L.Ed.2d 567 (1985) (internal 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 barrier must be

reasonable and viewpoint neutral, e.g., Rosenberger, 515

U.S., at 829, 115 S.Ct. 2510. See also, e.g., Good News Club

v. Milford Central School, 533 U.S. 98, 106–107, 121 S.Ct.

2093, 150 L.Ed.2d 151 (2001); Lamb's Chapel v. Center

Moriches Union Free School Dist., 508 U.S. 384, 392–393,

113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Perry Ed. Assn.

v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S.Ct.

948, 74 L.Ed.2d 794 (1983).

12

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[4] *680 Second, as evidenced by another set of

decisions, this Court has rigorously **2985 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 restrictive [means].” Roberts

v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct.

3244, 82 L.Ed.2d 462 (1984). See also, e.g., Boy Scouts

of America v. Dale, 530 U.S. 640, 648, 120 S.Ct. 2446,

147 L.Ed.2d 554 (2000). “Freedom of association,” we

have recognized, “plainly presupposes a freedom not

to associate.” Roberts, 468 U.S., at 623, 104 S.Ct.

3244. Insisting that an organization embrace unwelcome

members, we have therefore concluded, “directly and

immediately affects associational rights.” Dale, 530 U.S.,

at 659, 120 S.Ct. 2446.

CLS would have us engage each line of cases

independently, but its expressive-association and freespeech arguments 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 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, 102 S.Ct. 434,

70 L.Ed.2d 492 (1981). Instead, three observations lead

us to conclude that our limited-public-forum precedents

supply the appropriate framework for assessing both

CLS's speech and association 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

2984 – 2985, and n. 11, apply with equal force to expressive

association occurring in limited public forums. As just

noted, speech and expressive-association rights are closely

linked. See Roberts, 468 U.S., at 622, 104 S.Ct. 3244

(Associational freedom is “implicit in the right to engage

in activities protected by the First *681 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-publicforum test only to be invalidated as an impermissible

infringement of expressive association. Accord Brief for

State Universities et al. 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, 115 S.Ct. 2510. See also Perry Ed. Assn.,

460 U.S., at 49, 103 S.Ct. 948 (“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, 105 S.Ct. 3439 (“[A] 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,

ordinarily, and without controversy, limit official studentgroup recognition to organizations comprising only

students—even if those groups wish to associate with

nonstudents. See, e.g., Volokh, Freedom of Expressive

**2986 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, 115 S.Ct.

2510. See also Healy, 408 U.S., at 189, 92 S.Ct. 2338

(“Associational activities need not be tolerated where they

infringe reasonable campus rules.”).

*682 Third, this case fits comfortably within the limitedpublic-forum category, for CLS, in seeking what is

effectively a state subsidy, faces only indirect pressure to

modify its membership policies; CLS may exclude any

person for any reason if it forgoes the benefits of official

recognition. 13 The expressive-association precedents on

which CLS relies, in contrast, involved regulations that

compelled a group to include unwanted members, with

no choice to opt out. See, e.g., Dale, 530 U.S., at 648,

120 S.Ct. 2446 (regulation “forc[ed] [the Boy Scouts] to

accept members it [did] not desire” (internal quotation

marks omitted)); Roberts, 468 U.S., at 623, 104 S.Ct. 3244

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(“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

withhold benefits. See, e.g., Grove City College v. Bell,

465 U.S. 555, 575–576, 104 S.Ct. 1211, 79 L.Ed.2d 516

(1984); *683 Bob Jones Univ. v. United States, 461 U.S.

574, 602–604, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983).

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. Cf. Norwood v. Harrison,

413 U.S. 455, 463, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973)

(“That the Constitution may compel toleration of private

discrimination in some circumstances does not mean that

it requires state support for such discrimination.”).

[5] In sum, we are persuaded that our limited-publicforum 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

instant dispute, therefore, with the limited-public-forum

decisions as our guide.

**2987 B

As earlier pointed out, supra, at 2978, 2984 – 2985,

we do not write on a blank slate; we have three times

before considered clashes between public universities and

student groups seeking official recognition or its attendant

benefits. First, in Healy, a state college denied school

affiliation to a student group that wished to form a local

chapter of Students for a Democratic Society (SDS). 408

U.S., at 170, 92 S.Ct. 2338. Characterizing SDS's mission

as violent and disruptive, and finding the organization's

philosophy repugnant, the college completely banned

the SDS chapter from campus; 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 campus coffee shop.

Id., at 174–176, 92 S.Ct. 2338. 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

educational institution exceeds constitutional bounds, we

held, when it “restrict[s] speech or association simply

because *684 it finds the views expressed by [a] group to

15 be abhorrent.” Id., at 187–188, 92 S.Ct. 2338.

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, 102 S.Ct. 269.

“A university'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 mission upon the use of its campus and

facilities.” Id., at 268, n. 5, 102 S.Ct. 269. But because

the university singled out religious organizations for

disadvantageous treatment, we subjected the university's

regulation to *685 strict scrutiny. Id., at 269–270, 102

S.Ct. 269. The school's interest “in maintaining strict

separation of church and State,” we held, was not

“sufficiently compelling to justify ... **2988 [viewpoint]

discrimination against ... religious speech.” Id., at 270,

276, 102 S.Ct. 269 (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

Rosenberger was denied student-activity-fee funding to

distribute a newspaper because the publication discussed

issues from a Christian perspective. 515 U.S., at 825–

827, 115 S.Ct. 2510. By “select[ing] for disfavored

treatment those student journalistic 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, 115 S.Ct.

2510.

[6] 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

boundaries it has itself set.” Id., at 829, 115 S.Ct. 2510.

The constitutional constraints on the boundaries the State

may set bear repetition 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

conduct.” Id., at 193, 92 S.Ct. 2338. But a public

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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,

105 S.Ct. 3439.

1

Our inquiry is shaped by the educational context in

which it arises: “First Amendment rights,” we have

observed, *686 “must be analyzed in light of the special

characteristics of the school environment.” Widmar, 454

U.S., at 268, n. 5, 102 S.Ct. 269 (internal quotation

marks omitted). This Court is the final arbiter of

the question whether a public university 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, 94 S.Ct. 2800,

41 L.Ed.2d 495 (1974) (“Courts cannot, of course,

abdicate their constitutional responsibility to delineate

and protect fundamental liberties.”). Cognizant that

judges lack the on-the-ground expertise and experience

of school administrators, however, we have cautioned

courts in various contexts to resist “substitut[ing] their

own notions of sound educational 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, 102 S.Ct. 3034, 73

L.Ed.2d 690 (1982). See also, e.g., Hazelwood School

Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562,

98 L.Ed.2d 592 (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, 92 S.Ct. 2338 (“[T]his Court has long

recognized ‘the need for affirming the comprehensive

authority of the States and of school officials, consistent

with fundamental constitutional safeguards, to prescribe

and control conduct in the schools.’ ” (quoting Tinker v.

Des Moines Independent Community School Dist., 393 U.S.

503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969))).

A college's commission—and its concomitant license to

choose among pedagogical **2989 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,

122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (involvement in

student groups is “a significant contributor to the breadth

and quality of the educational experience” (internal

quotation marks omitted)). Schools, we have emphasized,

enjoy “a significant measure of authority over the

type of officially recognized activities in *687 which

their students participate.” Board of Ed. of Westside

Community Schools (Dist.66) v. Mergens, 496 U.S.

226, 240, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). We

therefore “approach our task with special caution,”

Healy, 408 U.S., at 171, 92 S.Ct. 2338, mindful that

Hastings' decisions about the character of its studentgroup program are due decent respect. 16

2

[7] 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 *688 “ensures that the leadership,

educational, and social opportunities afforded by [RSOs]

are available 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

assistance drawn from mandatory student-activity fees,

see supra, at 2979; the all-comers policy ensures that no

Hastings student is forced to fund a group that would

reject her as a member. 18

**2990 Second, the all-comers requirement helps

Hastings police the written terms of its Nondiscrimination

Policy without inquiring into an RSO's motivation for

membership restrictions. To bring the RSO program

within CLS's view of the Constitution's limits, CLS

proposes that Hastings permit exclusion because of

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belief but forbid discrimination 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 presidency, 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?

*689 This case itself is instructive in this regard. CLS

contends that it does not exclude individuals because

of sexual 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 decisions have declined to distinguish between status

and conduct in this context. See Lawrence v. Texas,

539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508

(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, 123 S.Ct.

2472 (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, 113 S.Ct. 753,

122 L.Ed.2d 34 (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,

“encourages tolerance, cooperation, and learning among

students.” 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 *690 the Law School's decision “to decline to

subsidize with public monies and benefits conduct of

which the people of California disapprove.” Brief for

Hastings 35; id., at 33–34 (citing Cal. Educ. Code Ann.

§ 66270 (West Supp. 2010) (prohibiting discrimination

on various bases)). State **2991 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

reasonable 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, 103 S.Ct. 948.

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 significant 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, 105 S.Ct.

3439; Greer v. Spock, 424 U.S. 828, 839, 96 S.Ct. 1211, 47

L.Ed.2d 505 (1976); Pell, 417 U.S., at 827–828, 94 S.Ct.

2800.

In this case, Hastings offered CLS access to school

facilities 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

2979, *691 the advent of electronic media and socialnetworking sites reduces the importance of those channels.

See App. 114–115 (CLS maintained a Yahoo! message

group to disseminate information to students.); Christian

Legal Society v. Walker, 453 F.3d 853, 874 (C.A.7 2006)

(Wood, J., dissenting) (“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, Hastings College of Law, as

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Amicus Curiae 14–18 (describing host of ways CLS could

communicate with Hastings' students 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 denied

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

present 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, 103 S.Ct. 948. It is beyond dissenter's license, we note

again, see supra, **2992 at 2989, n. 17, constantly to

maintain that nonrecognition of a student organization is

equivalent to prohibiting its members from speaking.

*692 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 3013 (ALITO, J., dissenting).

This catchphrase confuses CLS's preferred policy with

constitutional limitation—the advisability of Hastings'

policy does not control its permissibility. See Wood v.

Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214

(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.”

22 Cornelius, 473 U.S., at 808, 105 S.Ct. 3439.

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

organizations must open their arms to all, CLS contends,

saboteurs will infiltrate groups to subvert their mission

and message. 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, 118 S.Ct.

2168, 141 L.Ed.2d 500 (1998) ( “[W]e are reluctant ...

to invalidate legislation on the basis of its hypothetical

quotation marks omitted)). Students tend to self-sort and

presumably will not endeavor en masse to join—let alone

seek leadership positions in—groups pursuing missions

wholly at odds with their *693 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 because

of their commitment to a group's vitality, not its demise.

See supra, at 2979, 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

**2993 Hastings, furthermore, could reasonably expect

more from its law students than the disruptive behavior

CLS hypothesizes—and to build this expectation into

its educational 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 3015

– 3016) that the Law School lacks any legitimate interest—

let *694 alone one reasonably related to the RSO forum's

purposes—in urging “religious groups not to favor coreligionists 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

application to situations not before the Court.” (internal

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D

We next consider whether Hastings' all-comers policy is

viewpoint neutral.

1

[8] Although this aspect of limited-public-forum analysis

has been the constitutional sticking point in our prior

decisions, as earlier recounted, supra, at 2987 – 2988, 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 points of view, Hastings' all-comers requirement

draws no distinction between groups based on their

message or perspective. An all-comers *695 condition

on access to RSO status, in short, is textbook viewpoint

neutral. 25

**2994 2

[9] 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 Petitioner 51; cf. post,

at 3000 (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 others.” Ward

v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct.

2746, 105 L.Ed.2d 661 (1989). See also Madsen v. Women's

Health Center, Inc., 512 U.S. 753, 763, 114 S.Ct. 2516,

129 L.Ed.2d 593 (1994) (“[T]he fact that the injunction

covered people with *696 a particular viewpoint does not

itself render the injunction content or viewpoint based.”).

[10] 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

regulation merely because they express a discriminatory

idea or philosophy.” R.A.V. v. St. Paul, 505 U.S. 377, 390,

112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). See also Roberts,

468 U.S., at 623, 104 S.Ct. 3244 (State's nondiscrimination

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,

107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) (same).

[11] 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, 109 S.Ct. 2746 (internal quotation

marks and emphasis omitted). The Law School's policy

aims at the act of rejecting would-be group members

without reference to the reasons motivating that behavior:

Hastings' “desire to redress th[e] perceived harms” of

exclusionary membership 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, 113 S.Ct.

2194, 124 L.Ed.2d 436 (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 confusing its

own viewpoint-based objections to ... nondiscrimination

laws (which it is entitled to have and [to] voice) with

viewpoint discrimination.” Brief for Hastings 31. 26

**2995 [12] *697 Finding Hastings' open-access

condition on RSO status reasonable and viewpoint

neutral, we reject CLS's free-speech and expressiveassociation claims. 27

IV

[13] In its reply brief, CLS contends that “[t]he

peculiarity, incoherence, and suspect history of the allcomers 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 *698 CLS's pretext argument if, and to the

extent, it is preserved. 29

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* * *

For the foregoing reasons, we affirm the Court of Appeals'

ruling that the all-comers policy is constitutional and

remand the case for further proceedings consistent with

this opinion.

It is so ordered.

Justice STEVENS, concurring.

The Court correctly confines its discussion to the narrow

issue presented by the record, see ante, at 2982 – 2984, and

correctly 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 3009 (opinion of ALITO, J.), a brief

response is appropriate. In my view, both policies are

plainly legitimate.

The Hastings College of Law's (Hastings)

Nondiscrimination Policy contains boilerplate language

used by institutions 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 3002 – 3003, CLS was unwilling to admit members

unless **2996 they affirmed their belief in certain

Christian doctrines and refrained from “participation

in or advocacy of a sexually immoral lifestyle,” App.

146. CLS, in short, wanted to receive the school's

formal recognition—and the benefits that attend formal

recognition—while continuing to *699 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

exemption from the Nondiscrimination Policy, Hastings

violated CLS's rights, for by proscribing unlawful

discrimination on the basis of religion, the policy

discriminates unlawfully on the basis of religion. There

are numerous 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, 92 S.Ct. 2338, 33

L.Ed.2d 266 (1972). Those who hold religious beliefs are

not “singled out,” post, at 3010 (ALITO, J., dissenting);

those who engage in discriminatory conduct based on

someone else's religious status and belief are singled out. 1

Regardless of *700 whether they are the product 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 undermine, religious freedom.

To be sure, the policy may end up having greater

consequence 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 significant 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 has thus given **2997 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

discrimination by school officials or organizations on

the basis of certain *701 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) program. But it is at least

a reasonable choice. Academic administrators routinely

employ antidiscrimination rules to promote tolerance,

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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 numerous pedagogical

objectives. See post, at 2999 – 3000 (KENNEDY, J.,

concurring).

It is critical, in evaluating CLS's challenge to the

Nondiscrimination Policy, to keep in mind that an RSO

program 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 setting, it must be allowed broad freedom to control

its membership 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 was merely human.” Post, at 3000 (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 recognized 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, *702 the

campus is their world,” post, at 3007 (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

community. Public universities serve a distinctive role in a

modern **2998 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 manage their own affairs.

The RSO forum is no different. It is not an open commons

that Hastings happens to maintain. It is a mechanism

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 program will serve and which rules are best suited

to facilitate 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 the rules, the RSO sponsor need not admit

that group at the cost of undermining the program and

the values reflected therein. On many levels, a university

administrator has a “greater interest in the content of

student activities than the police chief has in the content

of a soapbox oration.” Widmar v. Vincent, 454 U.S. 263,

280, 102 S.Ct. 269, 70 L.Ed.2d 440 (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 association argument it presses, however, is

hardly limited to these facts. *703 Other groups may

exclude or mistreat Jews, blacks, and women—or those

who do not share their contempt 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.

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,

interests, and expertise (e.g., art professor not chosen

as speaker for conference on public transit). When the

government 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, 92 S.Ct.

2338, 33 L.Ed.2d 266 (1972).

In Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (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 limited 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 tradition of a

university setting that stimulates the free exchange of

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ideas. See id., at 835, 115 S.Ct. 2510 (“[I]n the University

setting, ... the State acts against a background and

tradition of thought and experiment that is at the center

of our intellectual and philosophic tradition”). These

considerations supported the Court's conclusion that,

under the First Amendment, a limited forum for studentrun publications did not permit the exclusion of a paper

for the **2999 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 *704 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 essential

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, 120 S.Ct. 2446, 147 L.Ed.2d

554 (2000). By allowing like-minded students to form

groups around shared identities, a school creates room for

self-expression and personal development. See Board of

Regents of Univ. of Wis. System v. Southworth, 529 U.S.

217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (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

qualification were enforced, it would contradict a

legitimate purpose for having created the limited forum

in the first place. Many educational institutions, including

respondent 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, 120 S.Ct. 1346. Students 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 talents, and

to nurture a growing sense of self. See Board of Ed. of

Independent *705 School Dist. No. 92 of Pottawatomie

Cty. v. Earls, 536 U.S. 822, 831, n. 4, 122 S.Ct. 2559,

153 L.Ed.2d 735 (2002) (participation in extracurricular

activities is “ ‘a significant contributor to the breadth and

quality of the educational experience’ ”). The Hastings

program is designed to allow all students to interact

with their colleagues across a broad, seemingly unlimited

range of ideas, views, and activities. See Regents of

Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 313, n.

48, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of

Powell, J.) (“[A] great deal of learning ... occurs through

interactions among students ... who have a wide variety

of interests, talents, and perspectives; 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; internal 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. **3000 But these objectives may

be better achieved if students can act cooperatively to

learn from and teach each other through interactions in

social and 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

persuasive based on its *706 substance, not the identity

of the speaker. The era of loyalty oaths is behind us. A

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school quite properly may conclude that allowing an oath

or belief-affirming requirement, or an outside conduct

requirement, 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 enforced its policy with the intent or purpose of

discriminating 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.

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,

49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting).

Today's decision rests on a very different principle: no

freedom for expression that offends prevailing standards

of political correctness 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 *707 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

organizations 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

that this “accept-all-comers” policy, ante, at 3000, is both

viewpoint neutral and consistent **3001 with Hastings'

proclaimed policy of fostering a diversity of viewpoints

among registered student groups.

The Court's treatment of this case is deeply disappointing.

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 inconvenient

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 3019.

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 3002; (2)

the effects *708 of Hastings' refusal to register CLS have

been of questionable importance, see ante, at 2991 – 2992;

and (3) this case is about CLS's desire to obtain “a state

subsidy,” ante, at 2985 – 2986. 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 denied registration, i.e., the school's

written Nondiscrimination Policy, or the policy that

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Hastings belatedly unveiled 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 organization 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

membership.” Id., at 146. The resolution made it clear

that “a sexually immoral lifestyle,” in CLS's view, includes

engaging 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

*709 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 **3002

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 Hastings Jewish Law Students Association

and the Hastings 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

Association, 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,” App. 244,

while Law Students for Choice aimed to “defend and

expand reproductive rights,” id., at 243. The American

Constitution Society sought “to counter ... a narrow

conservative vision 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 channels

for communicating with students and faculty—including

posting messages on designated bulletin boards, sending

mass *710 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

student must pay. See App. to Pet. for Cert. 89a–93a.

When CLS applied for registration, Judy Hansen

Chapman, 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 reflects, 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

provisions of the Nondiscrimination Policy and that they

would need to be amended in order for CLS to become

a registered 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

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appears that not a word was said about an accept-allcomers policy.

When CLS refused to change its membership

requirements, 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 **3003 school, by *711 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 significant for present purposes. In its complaint,

CLS had alleged that the Nondiscrimination Policy

discriminates against religious groups because it prohibits

those groups “from selecting officers and members

dedicated to a particular set of religious ideals or

beliefs” but “permits political, 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 political, 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 2979. But this admission in Hastings' answer shows

that Hastings had not adopted this interpretation 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

organizations wishing to register with Hastings allow any

Hastings student to become a member and/or seek a

leadership 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 *712 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 deposition, 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 2979 (emphasis added). This

puts Hastings in the implausible position of maintaining

that the Nondiscrimination Policy means one thing as

applied to the RSO program and something quite different

as applied to all of Hastings' other activities. But the

Nondiscrimination Policy by its terms applies fully to all

components of the law school, “including administration

[and] faculty.” App. 220.

**3004 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 *713 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

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member must “adhere to the objectives of the Student

Chapter as well as the mission of 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 centers 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 reviewed its

bylaws and found them unacceptable.

We are told that, when CLS pointed out these

discrepancies during this litigation, Hastings took action

to ensure 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 maintain the Club's standing as a

student organization,” it must “open its membership to all

students, irrespective 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 *714 policy; it has

an accept-some-comers policy. Hastings' current policy,

we are told, “does not 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 registered 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 **3005 former dean's deposition, numerous groups

had been permitted to restrict membership to students

who shared the groups' views. 1 Nevertheless, the *715

Ninth Circuit disposed of CLS's appeal with a twosentence, 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 organizations

allow any student to participate, become a member, 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 2984.

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-allcomers 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 Hastings at that

time was that the CLS bylaws did not comply with the

Nondiscrimination 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.

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*716 The majority's insistence on the binding effect of

stipulations 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 (C.A.9 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 (C.A.9

1997) (quoting Lacelaw, supra ). As noted above, Hastings

admitted in its answer, which was filed prior to the former

dean's deposition, that at least as of that time, the law

school did not follow **3006 an accept-all-comers policy

and instead allowed “political, social, and cultural student

organizations to select officers and members who are

dedicated to a particular 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 2981 (quoting App. 294). Later

in its opinion, the Court reiterates that “Hastings offered

CLS access to school facilities to conduct meetings,” ante,

at 2991, 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

Ms. Chapman requesting permission to set up an “advice

*717 table” on a campus patio on August 23 and 24 so

that members of CLS could speak with students at the

beginning 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 response

before the scheduled date, but once again no answer 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

meetings and other events. Ante, at 3003. And “[a]lthough

CLS could not take advantage of RSO-specific methods

of communication,” the Court states, “the advent of

electronic media and social-networking sites reduces the

importance of those channels.” Ante, at 2991.

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

discrimination—by using private facilities and means of

communication—is quite amazing.

This Court does not customarily brush aside a claim

of unlawful discrimination with the observation that the

effects of the discrimination were really not so bad. We

have never *718 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 **3007 the majority, CLS is

“seeking what is effectively a state subsidy,” ante, at 2985

– 2986, and the question presented in this case centers on

the “use of school funds,” ante, at 3000. 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

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universities will be at the mercy of the administration.

As CLS notes: “To university students, the campus is

their world. The right to meet on campus and use campus

channels of communication is at least as important to

university students as the right to gather on the town

square and use local communication forums is to the

citizen.” Reply Brief for Petitioner 13.

II

To appreciate how far the Court has strayed, it is

instructive to compare this case with Healy v. James,

408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (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 students who

applied for recognition of the chapter were asked by a

college committee whether they would “ ‘respond to issues

of violence as other S.D.S. chapters have,’ ” their answer

was that their “ ‘action would have to be dependent

upon each issue.’ ” Id., at 172–173, 92 S.Ct. 2338. They

similarly 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, 92 S.Ct. 2338.

The president of the college refused to allow the group

to be recognized, *719 concluding 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 organization, the “ ‘published

aims and philosophy’ ” of which included “ ‘disruption

and violence.’ ” Id., at 174–175, and n. 4, 92 S.Ct. 2338.

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, 92 S.Ct. 2338.

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 informally on campus ... as individuals.” Id., at

182–183, 92 S.Ct. 2338.

This Court took a different view. The Court held that the

denial of recognition substantially burdened the students'

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, 92

S.Ct. 2338, the Court continued:

“Petitioners' associational interests also were

circumscribed 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 which new students enter on a regular

basis, it must possess the means of communicating with

these students. Moreover, the organization's ability to

participate in the intellectual give and take of campus

debate, **3008 and to pursue its stated purposes, is

limited by denial of access to the customary media

for communicating with the administration, faculty

members, and other students. *720 Such impediments

cannot be viewed as insubstantial.” Id., at 181–182, 92

S.Ct. 2338 (footnote omitted).

It is striking that all of these same burdens are now borne

by CLS. CLS is prevented from using campus facilities—

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 otherwise 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, 92 S.Ct. 2338.

It is also telling that the Healy Court, unlike

today's majority, refused to defer to the college

president's judgment regarding the compatibility of

“sound educational policy” and free speech rights. The

same deference arguments 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 actions 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

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policies.” Brief for Board of Trustees, California State

Colleges 6. Another argued that universities should be

permitted to impose restrictions on speech that would not

be tolerated elsewhere. Brief for American Association of

Presidents of Independent 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, 92 S.Ct. 2338.

And on one key question after *721 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 willingness 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,

109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), and there is no

reason why we should bow to university 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

otherwise 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 Amendment rights.” **3009 408 U.S., at 187, 92

S.Ct. 2338. Here, too, disapproval of CLS cannot justify

Hastings' actions. 2

*722 III

The Court pays little attention to Healy and instead

focuses solely on the question whether Hastings'

registration policy represents a permissible regulation in a

limited public forum. While I think that Healy is largely

controlling, I am content to address the constitutionality

of Hastings' 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,

115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). The university

“may not exclude speech where its distinction is not

‘reasonable in light of the purpose served by the forum.’

” Ibid. (quoting Cornelius v. NAACP Legal Defense &

Ed. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87

L.Ed.2d 567 (1985)). And the university must maintain

strict viewpoint neutrality. Board of Regents of Univ. of

Wis. System v. Southworth, 529 U.S. 217, 234, 120 S.Ct.

1346, 146 L.Ed.2d 193 (2000); Rosenberger, supra, at 829,

115 S.Ct. 2510.

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.” Good News Club v. Milford Central School,

533 U.S. 98, 112, and n. 4, 121 S.Ct. 2093, 150 L.Ed.2d

151 (2001). See Rosenberger, supra, at 831, 115 S.Ct. 2510;

Lamb's Chapel v. Center Moriches Union Free School Dist.,

508 U.S. 384, 393–394, 113 S.Ct. 2141, 124 L.Ed.2d 352

(1993); Widmar v. Vincent, 454 U.S. 263, 277, 102 S.Ct.

269, 70 L.Ed.2d 440 (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, 115 S.Ct. 2510; Widmar,

supra, at 267, n. 5, 269, 277, 102 S.Ct. 269; see also

Good News Club, supra, at 106–107, 109–110, 121 S.Ct.

2093; *723 Lamb's Chapel, supra, at 392–393, 394, 113

S.Ct. 2141. 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

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at the center of our intellectual and philosophic tradition.”

Rosenberger, supra, at 835, 115 S.Ct. 2510.

IV

Analyzed under this framework, Hastings' refusal to

register CLS pursuant to its Nondiscrimination Policy

plainly fails. 3 **3010 As previously noted, when

Hastings refused to register CLS, it claimed that the

CLS bylaws impermissibly discriminated on the basis of

religion and sexual orientation. *724 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

Academic and Institutional Rights, Inc., 547 U.S. 47,

68, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (quoting

Boy Scouts of America v. Dale, 530 U.S. 640, 644, 120

S.Ct. 2446, 147 L.Ed.2d 554 (2000)). And the Court has

recognized that “[t]he 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.” Id., at 648.

With one important exception, the Hastings

Nondiscrimination Policy respected that right. As

Hastings stated in its answer, the Nondiscrimination

Policy “permit[ted] political, social, and cultural student

organizations 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 environmentalist group was not required to

admit students who rejected 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 discrimination. “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, 115 S.Ct. 2510. 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 *725 neutral. But his arguments are squarely

contrary to established precedent.

Justice STEVENS first argues that the Nondiscrimination

Policy is viewpoint neutral because it “does not regulate

expression or belief at all” but instead regulates **3011

conduct. See ante, at 2996 (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, 120 S.Ct. 2446; Roberts v. United States Jaycees, 468

U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984);

see also New York State Club Assn., Inc. v. City of

New York, 487 U.S. 1, 13, 108 S.Ct. 2225, 101 L.Ed.2d

1 (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, 454 U.S., at 268–269, 102

S.Ct. 269 (“[T]he First Amendment rights of speech and

association extend to the campuses of state universities”).

Indeed, the opinion of the Court, which Justice STEVENS

joins, acknowledges this rule. See ante, at 3006 – 3007.

Justice STEVENS also maintains that the

Nondiscrimination Policy is viewpoint neutral because

it prohibits all groups, both religious and secular, from

engaging in religious speech. See ante, at 3001 – 3002.

This argument is also contrary to established law. In

Rosenberger, the dissent, which Justice STEVENS joined,

made exactly this argument. See 515 U.S., at 895–896, 115

S.Ct. 2510 (opinion of Souter, J.). The Court disagreed,

holding that a policy that treated secular speech more

favorably than religious speech discriminated on the

*726 basis of viewpoint. 4 Id., at 831, 115 S.Ct. 2510.

The Court reaffirmed this holding in Good News Club, 533

U.S., at 112, and n. 4, 121 S.Ct. 2093.

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Here, the Nondiscrimination Policy permitted

membership 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 precedent, this

was viewpoint discrimination. 5

**3012 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 discriminate on the basis of religion. It would not mean,

for example, that fraternities or sororities could exclude

students on that basis. As our cases have recognized, the

right of expressive association permits a group to exclude

an applicant for membership *727 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, 120 S.Ct. 2446. 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 because the presence of

members with diverse religious beliefs would have no

effect on the group's ability to express 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 discrimination where religion is

irrelevant. But it is fundamentally confused to apply

a rule against religious discrimination 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

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 members

to affirm that they reject the traditional view of sexual

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. *728 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 explains, its policy allows “neutral and

generally applicable membership requirements unrelated

to ‘status or beliefs.’ ” Brief for Respondent Hastings

College of Law 5. As examples of permissible membership

requirements, Hastings mentions academic standing,

writing ability, “dues, attendance, and even conduct

requirements.” Ibid. (emphasis added).

It seems doubtful that Hastings' new policy permits

registered groups to condition membership eligibility

on whatever “conduct requirements” they may wish

to impose. 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 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 **3013

conduct requirements are acceptable, which are not, and

why CLS's requirement 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

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presumably implements. It is a policy that, as far as the

record *729 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.”

Rosenberger, 515 U.S., at 829, 115 S.Ct. 2510. Hastings'

regulations on the registration of student groups impose

only two substantive limitations: A group seeking

registration must have student members and must be

noncommercial. App. to Pet. for Cert. 82a–83a, Hastings

Board of Directors, Policies and Regulations Applying

to College Activities, Organizations 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 interest 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). *730 They also emphatically disclaim any

endorsement 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 diversity

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

independently devised purpose. Some addressed serious

social issues; others—for example, the wine appreciation

and ultimate Frisbee clubs—were simply recreational.

Some organizations focused on a subject but did **3014

not claim to promote a particular viewpoint on that

subject (for example, the Association of Communications,

Sports & Entertainment 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.

*731 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 Amendment 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

inclusion” 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, 120 S.Ct. 2446.

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 restrictive of associational freedoms.’ ” Ibid. (quoting

Roberts, 468 U.S., at 623, 104 S.Ct. 3244).

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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

groups' beliefs. Religious groups like CLS obviously

engage in expressive association, and no legitimate state

interest could override the powerful effect that an acceptall-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 California

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 requirements

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 *732 policy and,

deferring to the school's judgment, ante, at 2989, the Court

finds all those justifications satisfactory, ante, at 2989 –

2991. If we carry out our responsibility to exercise our own

independent judgment, however, we must conclude that

the justifications 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 “

‘leadership, educational, and social opportunities' ” are

afforded to all students. Ante, at 2989 – 2990 (quoting

Brief for Respondent Hastings College of Law 32).

The RSO forum, however, is designed to achieve these

laudable ends in a very different way—by permitting

groups of students, no matter how small, to form the

groups they want. In this way, the forum multiplies the

opportunity **3015 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 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 2990; see also ante, at 2996, 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 orientation, the *733 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 between 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 out students with

disfavored beliefs. Asked at oral argument 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

development of conflict-resolution skills. Ante, at 2990.

These are obviously commendable goals, but they are

not undermined by permitting a religious group to

restrict membership 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

*734 practices are not manifestations of “contempt”

for members of other faiths. Cf. ante, at 2998 (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

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**3016 resolution of conflicts. But we seek to achieve

those goals through “[a] confident pluralism that conduces

to civil peace and advances democratic consensusbuilding,” 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 “incorporates—in fact, subsumes—state-law

proscriptions on discrimination.” Ante, at 2990. Because

the First Amendment obviously takes precedence over any

state law, this 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

Hastings 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. Instead, Hastings points to a statute prohibiting

discrimination 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 *735 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 (emphasis

added)); 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 organizations” from a ban on state funding of

private groups that discriminate on any of the grounds

listed in § 66270. See § 92150 (West Supp.2010).

of state law that we cannot resolve. The materials that

have been brought to our attention, however, provide little

support for the majority's suggested interpretation.

In sum, Hastings' accept-all-comers policy is not

reasonable 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-allcomers policy is viewpoint neutral. The Court proclaims

that it would be “hard to imagine a more viewpointneutral policy,” ante, at 2993, but I would not be so quick

to jump to this conclusion. Even if it is assumed that the

policy is *736 viewpoint neutral on its face, 10 **3017

there is strong 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, 102 S.Ct. 3211,

73 L.Ed.2d 948 (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 *737 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 acceptall-comers policy was a pretext for the law school's

unlawful denial of CLS's registration application under

the Nondiscrimination Policy.

The authority to decide whether § 66270 or any other Shifting policies. When Hastings denied CLS's application provision of California law requires religious student in the fall of 2004, the only policy mentioned was the groups at covered institutions to admit members who do Nondiscrimination Policy. In July 2005, the former dean not share the groups' religious views is of course a question suggested in a deposition that the law school actually

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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

proffered reason for its employment decision support a

finding of pretext.” Kobrin v. University of Minnesota,

34 F.3d 698, 703 (C.A.8 1994); see also, e.g., Aragon v.

Republic Silver State Disposal Inc., 292 F.3d 654, 661

(C.A.9 2002); Cicero v. Borg–Warner Automotive, Inc., 280

F.3d 579, 592 (C.A.6 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 **3018 Policy discriminated

against religious groups, Hastings unveiled its acceptall-comers policy. Then, after we granted certiorari and

CLS's opening brief challenged the constitutionality—and

the plausibility—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

defendant's decision.” Ibid.

Lack of documentation. When an employer has a written

policy and then relies on a rule for which there is no

written *738 documentation, that deviation may support

an inference of pretext. See, e.g., Diaz v. Eagle Produce

Ltd. Partnership, 521 F.3d 1201, 1214 (C.A.9 2008); Rudin

v. Lincoln Land Community College, 420 F.3d 712, 727

(C.A.7 2005); Machinchick v. PB Power, Inc., 398 F.3d

345, 354, n. 29 (C.A.5 2005); Russell v. TG Missouri Corp.,

340 F.3d 735, 746 (C.A.8 2003); Mohammed v. Callaway,

698 F.2d 395, 399–400, 401 (C.A.10 1983).

Here, Hastings claims that it has had an accept-allcomers 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 Office of Student Services, which was charged with

reviewing 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 record

is replete with evidence that Hastings made no effort to

enforce the all-comers policy until after it was proclaimed

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 (Silenced Right); App. 192 (La Raza). See generally

supra, at 3003 – 3004. 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 *739 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

2995.

Because the Court affirms the entry of summary judgment

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 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, **3019 disposing of this case in precisely two

sentences.

Neither of those two sentences addressed the “novel

question,” ante, at 2978, 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 3009 – 3016.

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

comment. In response to the argument that the acceptall-comers-policy would permit a small and unpopular

group to be taken over by students who wish to silence

its message, the Court states that the policy would permit

a registered group to impose membership requirements

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“designed to ensure that students join because of their

commitment to a group's vitality, not its demise.” Ante,

at 2992. With this concession, the Court tacitly recognizes

that Hastings does not really have an accept-all-comers

policy—it has an accept-some-dissident-comers *740

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 denominations that

disagree with CLS decided that CLS was misrepresenting

true Christian doctrine. Suppose that these students joined

CLS, elected officers who shared their 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 “vital” 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 3000 (concurring

opinion), but he does not explain on what ground such

a claim could succeed. The Court holds that the acceptall-comers policy is viewpoint neutral and reasonable in

light of the purposes 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

consequences of its holding. A true accept-all-comers

policy permits small unpopular groups to be taken over

by students who wish to change the views that the group

expresses. Rules requiring that members attend meetings,

pay dues, and behave politely, see ante, at 2992, would not

eliminate this threat.

*741 The possibility of such takeovers, however, is

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 consequence 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 **3020

and university in the United States to exclude all

evangelical Christian organizations”); Brief for Agudath

Israel of America as Amicus Curiae 3, 8 (affirmance 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 beliefs

and commitments”). This is where the Court's decision

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 wideopen.” New York Times Co. v. Sullivan, 376 U.S. 254, 270,

84 S.Ct. 710, 11 L.Ed.2d 686 (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 direction. 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.

All Citations

561 U.S. 661, 130 S.Ct. 2971, 177 L.Ed.2d 838, 78 USLW

4821, 10 Cal. Daily Op. Serv. 7985, 2010 Daily Journal

D.A.R. 9821, 22 Fla. L. Weekly Fed. S 667, 57 A.L.R.

Fed. 2d 573

by no means the most important effect of the Court's

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Footnotes 

* 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, 26 S.Ct. 282, 50 

L.Ed. 499. 

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. 

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 opportunity 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 administered 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 allcomers, policy. Post, at 3001, 3004, 3005, 3012 – 3013, 3017 – 3018 (opinion of ALITO, J.). Hastings' open-access 

policy, however, requires only that student organizations open eligibility for membership and leadership regardless of a 

student's status or beliefs; dues, attendance, skill measurements, and comparable uniformly applied standards are fully 

compatible with the policy. The dissent makes much of Hastings' observation that groups have imposed “even conduct 

requirements.” Post, at 3004, 3012 (internal quotation marks omitted). 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). 

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. 

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. 

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 [Nondiscrimination 

Policy] such that student organizations must allow any student, regardless of their status or beliefs, to participate in the 

group's activities and meetings and to become voting members and leaders of the group.”); Brief for Appellant in No. 

06–15956(CA9), pp. 29–30 (“Hastings illustrates the application of the Nondiscrimination Policy by explaining that for the 

Hastings Democratic Caucus to gain recognition, it must open its leadership and voting membership to Republicans.”). 

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 

acknowledged 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 requirements. See supra, at 2979 – 2980; 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 3001, 3002, 3003, 3004, 3005, 3006. What counts, however, is the parties' unqualified agreement that the allcomers policy currently governs. CLS's suit, after all, seeks only declaratory and injunctive—that is, prospective—relief. 

See App. 80 (First Amended Verified Complaint for Declaratory and Injunctive Relief). 

7 Record evidence, moreover, corroborates the joint stipulation concerning Hastings' all-comers policy. The Law School's 

then-Chancellor and Dean testified, for example, that “in order to be a registered student organization you have to allow 

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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.”). 

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 3002, 3005 

– 3006. 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 (C.A.9 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 3000, 3001. 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 2982 – 2984; 

our decision respects, while the dissent ignores, the conclusive effect of the parties' accord. 

10 The dissent, in contrast, devotes considerable attention to CLS's arguments about the Nondiscrimination Policy as written. 

Post, at 3001, 3002, 3009 – 3012. We decline to address these arguments, not because we agree with the dissent that 

the Nondiscrimination Policy is “plainly” unconstitutional, post, at 3009, but because, as noted, supra, at 2982 – 2984, 

that constitutional question is not properly presented. 

11 In conducting forum analysis, our decisions have sorted government 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. 460, 469, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). 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 469 – 470, 129 S.Ct., at 1127. 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.” Id., at 470. As noted in text, “[i]n such a forum, a governmental entity may impose restrictions on speech that 

are reasonable and viewpoint-neutral.” Ibid. 

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, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); 

Tr. of Oral Arg. 24 (counsel for CLS); Brief for Petitioner 25–26; Brief for Hastings 27–28; Brief for Hastings Outlaw 27. 

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, 115 S.Ct. 2510. Applying limited-public-forum analysis (which itself prohibits viewpoint discrimination) 

to CLS's expressive-association claim, we emphasize, does not upset this principle. 

14 CLS also brackets with expressive-association precedents our decision in Hurley v. Irish–American Gay, Lesbian and 

Bisexual Group of Boston, Inc., 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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, 115 S.Ct. 2338. 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, 115 S.Ct. 2338. 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 publicaccommodations 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. 

15 The dissent relies heavily on Healy, post, at 3006 – 3009, but its otherwise 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, 92 S.Ct. 2338 (“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 

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membership requirements,” post, at 3009, 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, 112 S.Ct. 2538, 120 L.Ed.2d 

305 (1992) (“Where the [State] does not target conduct on the basis of its expressive content, acts are not shielded from 

regulation merely because they express a discriminatory ... philosophy.” (emphasis added)). As discussed infra, at 2993 

– 2995, 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 3008, 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, 92 S.Ct. 2338. 

16 The dissent mischaracterizes the nature of the respect we accord to Hastings. See post, at 3000, 3008, 3014 – 3015. 

As noted supra, at 2988 – 2989, this Court, exercising its independent judgment, must “interpre[t] and appl[y] ... the 

right to free speech.” Post, at 3008. 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, 102 S.Ct. 3034, 

73 L.Ed.2d 690 (1982). 

17 Although the dissent maintains it is “content to address the constitutionality of Hastings' actions under our limited public 

forum cases,” post, at 3009, 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 3009, 3012 – 

3013, the dissent refuses to credit Hastings' all-comers policy as one of those boundaries. See post, at 3012 – 3013 

(insisting that “Hastings' regulations ... impose only two substantive limitations: A group ... must have student members 

and must be noncommercial.”). In short, “the design of the RSO forum,” post, at 3014, which the dissent discusses at 

length, post, at 3013 – 3016, 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 3014. As noted supra, at 2984 – 2985, 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 prohibition and state support, but its real quarrel is with our limited-public-forum doctrine, 

which recognizes that distinction. CLS, it bears repetition, remains free to express whatever it will, but it cannot insist on 

an exemption from Hastings' embracive all-comers policy. 

18 CLS notes that its “activities—its Bible studies, speakers, and dinners—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. 

19 CLS's predecessor organization, the Hastings Christian Fellowship (HCF), experienced these benefits firsthand 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. 

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. 

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 Controversial 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”). 

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 

sixty registered groups had a religious orientation: Hastings Association of Muslim Law Students, Hastings Jewish Law 

Students Association, and Hastings Koinonia. Id., at 215–216. 

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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, prohibits obstruction or disruption, disorderly 

conduct, and threats.” Ibid. (internal quotation marks and brackets omitted). 

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 3015, 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), 

unequivocally answers no to that latter question. See also infra, at 2995, n. 27. 

25 Relying exclusively on Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 

L.Ed.2d 193 (2000), the dissent “would not be so quick to jump to th[e] conclusion” that the all-comers policy is viewpoint 

neutral. Post, at 3016, and 3016 – 3017, n. 10. Careful consideration of Southworth, 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, 120 S.Ct. 1346. 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, 120 S.Ct. 1346. 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, 120 S.Ct. 1346. 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 viewpoint. App. 221. Southworth 

accordingly provides no support for the dissent's warped analysis. 

26 Although registered student groups must conform their conduct to 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, 126 S.Ct. 1297, 164 L.Ed.2d 156 (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 3000 (ALITO, J., dissenting) (quoting United States v. Schwimmer, 279 

U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (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, 110 S.Ct. 1595, 108 L.Ed.2d 876, 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, 110 S.Ct. 1595. In seeking an exemption from Hastings' acrossthe-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 3001, 3016 – 3019, and 3009, 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, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). When the lower courts 

have failed to address an argument that deserved 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 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 3016 – 3018, an 

account depending in large part on impugning the veracity of a distinguished legal scholar and a well respected school 

administrator, post, at 3001 – 3002, 3002 – 3003, 3003, 3003 – 3004, 3004, 3004 – 3005, 3005 – 3006, 3012 – 3013, 

3017, 3018. See also supra, at 2983, n. 7. 

1 The dissent appears to accept that Hastings may prohibit discrimination 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 3012, n. 5, 3015. 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 

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besides. (So does sexual orientation for that matter, see ante, at 2989 – 2990, notwithstanding the dissent's view that a 

rule excluding those who engage in “unrepentant homosexual conduct,” App. 226, does not discriminate on the basis of 

status or identity, post, at 3012.) 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, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); R.A.V. 

v. St. Paul, 505 U.S. 377, 385, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Board of Directors of Rotary Int'l v. Rotary Club 

of Duarte, 481 U.S. 537, 549, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 

623, 628, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); cf. Employment Div., Dept. of Human Resources of Ore. v. Smith, 

494 U.S. 872, 878–879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (“We have never held that an individual's religious 

beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). 

Courts and commentators 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 (C.A.7 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 

(C.A.9 2008) (similar); Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stan. L.Rev.1919, 

1930–1938 (2006). 

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 3020 (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 antireligious 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. 

1 CLS consistently argued in the courts below that Hastings had applied 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 organizations 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 3003 – 3004. 

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 (“Hastings routinely recognizes student groups that limit membership 

or leadership on the basis of belief.... Hastings' actual practice demonstrates that the forum is not reserved to student 

organizations that do not discriminate on the basis of belief”). Responding to these arguments, 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. 

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 2987, n. 15. The same, however, is true here. CLS was 

denied recognition under the Nondiscrimination Policy because of the viewpoint that CLS sought to express through its 

membership requirements. See supra, at 2980; infra, at 2987 – 3012. 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 3016 – 3019. 

3 CLS sought a declaratory judgment that this policy is unconstitutional 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 voluntary 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, 102 S.Ct. 1070, 71 L.Ed.2d 152 

(1982); see also Allee v. Medrano, 416 U.S. 802, 810–811, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); DeFunis v. Odegaard, 

416 U.S. 312, 318, 94 S.Ct. 1704, 40 L.Ed.2d 164 (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, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 

629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (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 Nondiscrimination 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 constitutionality of the Nondiscrimination Policy. But the District Court 

approved both policies, and the Court of Appeals affirmed the judgment. That judgment remains binding on CLS, so it 

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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. 

4 In Rosenberger the university argued that the denial of student activity funding for all groups that sought to express 

a religious viewpoint 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, 115 S.Ct. 2510. The Rosenberger dissenters agreed that the 

university'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, 115 S.Ct. 2510 (opinion of Souter, J.); cf. ante, at 2996 (opinion of STEVENS, J.) (asserting that under 

Hastings' Nondiscrimination Policy “all acts of religious discrimination” are prohibited (emphasis added)). But the Court 

flatly rejected this argument. See 515 U.S., at 831, 115 S.Ct. 2510 (“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”). 

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 2996, 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. 

6 Nor does the Court clarify this point. Suggesting that any conduct requirement must relate to “gross misconduct,” ante, 

at 2979 – 2980, n. 2, is not helpful. 

7 See, e.g., Cal. Govt. 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, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (Title VII); id., at 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). 

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, 115 S.Ct. 2510, 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 2989, 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, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000), the 

Court considered a university rule permitting the “defund[ing]” of a registered student group through a student referendum. 

See id., at 224–225, 120 S.Ct. 1346. “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, 120 S.Ct. 1346. “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 Southworth referendum process. Both permit the majority 

to silence a disfavored 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 2993 – 2994, n. 25. But that mechanism—a student referendum process 

—placed all students at risk of “being required to 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, 120 S.Ct. 1346. That is no different 

in principle than an accept-all-comers policy that places all student organizations at risk of takeover by a majority that 

is hostile to a group's viewpoint. 

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 3005, n. 1. The Court would ignore these arguments because counsel for CLS 

acknowledged below that Hastings has an all-comers policy. See ante, at 2982, n. 5 (quoting examples). But as the 

Court itself acknowledges, counsel for CLS stated at oral argument in this Court 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); ante, at 

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2982, n. 5. And as the record shows, CLS has never ceded its argument that Hastings applies its accept-all-comers 

policy unequally. 

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