FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRUTH, an unincorporated 

association; SARICE UNDIS, a

minor, by and through her father,

LARRY UNDIS; JULIANNE STEWART, a

minor, by and through her parents, No. 04-35876 PAUL and ANNA STEWART,

Plaintiffs-Appellants, D.C. No.

CV-03-00785-MJP

v.  AMENDING KENT SCHOOL DISTRICT; BARBARA OPINION ONLY GROHE, Superintendent of Kent TO INCLUDE School District; MIKE ALBRECHT,

CONCURRENCE Principal of Kentridge High

School; ERIC ANDERSON, Assistant

Principal of Kentridge High

School, in their official capacities,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

July 27, 2006—Seattle, Washington

Filed April 25, 2008

Amended September 9, 2008

Before: J. Clifford Wallace, Kim McLane Wardlaw, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Wallace;

Concurrence by Judge Fisher

12441
COUNSEL

Nathan W. Kellum, Alliance Defense Fund, Memphis, Tennessee, for the plaintiffs-appellants. 

Michael B. Tierney, Mercer Island, Washington, for the

defendants-appellees. 

Jane M. Whicher, Port Townsend, Washington, for amicus

American Civil Liberties Union. 

TRUTH v. KENT SCHOOL DISTRICT 12445
Sara J. Rose, Washington, D.C., for amicus Americans United

for Separation of Church and State. 

David F. McDowell, Los Angeles, California, for amicus

Anti-Defamation League.

ORDER

The opinion filed on April 25, 2008 in the above-captioned

case is amended only to include the concurrence filed this

date. 

Appellant’s Petition for Rehearing En Banc is still pending.

OPINION

WALLACE, Circuit Judge: 

Appellants Truth, Sarice Undis, and Julianne Stewart (collectively, Truth) appeal from a summary judgment in favor of

the Kent School District and other appellees (collectively,

District). Truth alleges violations of the Equal Access Act (the

Act), the First Amendment rights of free speech and expressive association, the Free Exercise Clause, the Establishment

Clause, and the Equal Protection Clause. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We reverse and remand. 

I.

This appeal arises from Truth’s attempt to form a student

club at Kentridge High School (Kentridge), which is part of

the Kent School District. Under the relevant policies at Kentridge, “[u]nchartered clubs are not permitted to exist.” To

obtain a charter, students must submit a proposed charter to

the Associated Student Body (ASB) Council and secure

approval. 

12446 TRUTH v. KENT SCHOOL DISTRICT
Beginning in the fall semester of 2001, appellants Undis,

then a junior, and Stewart, then a sophomore, attempted to

form a Bible club at Kentridge. Undis and Stewart submitted

a “Club Charter Application” (first charter) for official recognition as an ASB organization in September 2001. This first

charter indicated that the club’s name was to be “Truth” and

that the purpose of the organization was to “have a Bible

study to encourage and help become better people with good

morals.” Under the section “Membership Criteria,” the first

charter indicated that the group was to be “[o]pen to anyone.”

The charter also proposed that it would designate a “quote of

the week for announcement” and “once a month decorate

[the] school with a theme.” 

The ASB Council discussed Truth’s first charter at a September 2001 meeting, and several students objected to chartering Truth. The ASB Council decided to consult with the

Assistant Principal, appellee Eric Anderson. Anderson and

appellee Mike Albrecht, Principal of Kentridge, later told

Undis that they would speak with the school’s attorney

regarding the legality of granting Truth ASB recognition.

Albrecht stated that “the problem with the September 2001

proposal was that it involved broadcasting a weekly Bible

quote over the school’s public address system and monthly

decoration of the school in a biblical theme.” 

No action was taken on the first charter for the remainder

of the 2001-02 school year. During that time, Undis asked

Anderson to make a decision on Truth’s application on at

least ten occasions, to no avail. Sometime in the spring semester of 2002, all ASB clubs were instructed to resubmit their

charters. The record does not reveal any further activity on

Truth’s application during the summer and fall semesters of

2002. 

During this period, we decided Prince v. Jacoby, which

involved a request by a Bible club for ASB recognition in a

different Washington school district. 303 F.3d 1074 (9th Cir.

TRUTH v. KENT SCHOOL DISTRICT 12447
2002). On January 7, 2003, an attorney for Truth, Robert

Tyler, wrote to Albrecht stating that it was “constitutionally

imperative that [Kentridge] grant [appellants’] proposed Bible

Club treatment and rights equal to all other noncurriculum

clubs.” The letter also insisted that Kentridge “immediately

adhere to the requirements of the Equal Access Act and the

First Amendment,” and threatened litigation if Kentridge did

not comply. 

On January 30, 2003, Tyler sent a second letter to Michael

Harrington, counsel for the Kent School District. Tyler

requested the forms required to establish an ASB club, and

threatened litigation if Truth’s charter was not approved by

February 4. 

On February 2, as requested by Anderson, Undis and Stewart submitted a new application (second charter). The second

charter removed the quote-of-the-week and monthly theme

decoration provisions of the first charter. The club’s stated

purpose was now to “provid[e] a biblically-based club for

those students interested in growing in their relationship with

Jesus Christ.” Although membership would be open to all students, the second charter restricted voting membership to

“members professing belief in the Bible and in Jesus Christ.”

Officers would also be required to “believe in and be committed to biblical principles.” 

After a third letter to Harrington from Tyler, the second

charter was discussed at an ASB Council meeting on March

27. Some students expressed disapproval of the club’s name,

suggesting that it “implies that every other religion at Kentridge is a lie.” Some council members also expressed concerns that granting the charter would violate “[c]hurch and

state” and that the voting membership should be open to

everyone. Additionally, members suggested that students

could go to “Young Life,” a non-ASB recognized organization that met on Kentridge’s campus after school hours. The

minutes of the March 27 meeting reveal that the question of

12448 TRUTH v. KENT SCHOOL DISTRICT
whether to approve the second charter was discussed for

twenty minutes. No vote was taken. 

The second charter was next addressed at an ASB Council

meeting on April 1. After a brief clarification on the role of

the advisor for the club, the minutes show that Anderson

stated that if the ASB Council voted to approve the charter,

he would consult the District’s attorneys and Kentridge would

make a final decision on approving the charter. The Counsel

voted eleven to six against approval of Truth’s second charter.

On April 3, Truth filed a complaint in the United States

District Court for the Western District of Washington, alleging that defendants had violated the Act, as well as the First

Amendment rights of free speech and expressive association,

the Free Exercise Clause, the Establishment Clause, and the

Equal Protection Clause. Truth sought injunctive and declaratory relief as well as nominal damages. 

On April 9, Anderson sent Stewart a letter informing her of

her right to resubmit Truth’s application for ASB club recognition: “As was discussed at the ASB meeting on March 28th,

by making minor changes to Article[s] I and III of the proposed Constitution for your club, you will address the points

raised.” Article I sets forth the name of the club and Article

III contains the voting membership and officer restrictions.

Anderson advised Stewart to “be prepared to resubmit by the

April 25th ASB Meeting.” Under the Kentridge ASB Constitution, “[a]ny rejected charters must be resubmitted within

two weeks of rejection with the required changes made or the

charter shall be permanently rejected.” 

Stewart and Undis submitted the third charter on April 24.

The third charter maintains the proposed name “Truth.” However, it divides the membership into three categories: voting

members, non-voting members, and attendees. Meetings are

open to everyone. But the “privilege of membership is contingent upon the member complying in good faith with Christian

TRUTH v. KENT SCHOOL DISTRICT 12449
character, Christian speech, Christian behavior and Christian

conduct as generally described in the Bible.” The charter

application also lists a “true desire to . . . grow in a relationship with Jesus Christ” under the “Membership Criteria”

heading. In order to be a voting member or officer, students

are required to sign a “statement of faith.” The statement of

faith requires the person to affirm that he or she believes “the

Bible to be the inspired, the only infallible, authoritative

Word of God.” A voting member must also pledge that he or

she believes “that salvation is an undeserved gift from God,”

and that only by “acceptance of Jesus Christ as my personal

Savior, through His death on the cross for my sins, is my faith

made real.” Other than the ability to call oneself a “member,”

there is no difference between the rights of non-voting members and attendees. 

The third charter was discussed at the April 25 ASB Council meeting. The ASB Council again objected to the name,

selectivity provisions, and the presence of religion in school.

The council voted nineteen to zero to deny approval of the

charter, with one member undecided. The minutes give four

reasons why the charter was not accepted: 1) “Name,”

2) “Pledge to vote,” 3) “Segregating,” 4) “Religious club in

school.” 

On May 6, Tyler wrote to the Kent School District’s counsel stating that it was his “understanding from the ASB Constitution that this rejection by the ASB is the final decision.”

The letter also provided that Tyler “was unable to locate any

rights to appeal the decision of the ASB,” but that if there

were “a right to appeal the decision of the ASB,” he asked

that the letter “serve as a formal request for appeal.” 

Anderson advised Undis and Stewart in a May 12 letter

“that pursuant to Kent School District Policy 2340, [they had]

the ability to discuss this matter with Mr. Albrecht,” and mentioned the possibility of discussions with the District superintendent or the ombudservices office. Although Tyler’s May 6

12450 TRUTH v. KENT SCHOOL DISTRICT
letter would appear to have invoked these processes, no further action was taken by the District. Policy 2340 concerns

“religious related activities or practices.” The policy does not

refer to ASB recognition, and the ASB Constitution does not

refer to this policy as providing an avenue for an appeal of the

District’s decisions, which are otherwise “final.” 

Although Undis and Stewart have both graduated from

Kentridge, they have indicated that another student, Lindsay

Thomas, is prepared to assume leadership of the club if the

charter is approved. 

The Kent School District has three policies relevant to this

appeal. First, Policy 3210 provides that “[t]he district will

provide equal educational opportunity and treatment for all

students in all aspects of the academic and activities program.

Equal opportunity and treatment is provided without regard to

race, creed, color, national origin, sex, marital status, previous

arrest . . . , incarceration, or physical, sensory or mental disabilities.” The district court held that inclusion of “creed”

indicates that discrimination based upon religion is prohibited.

That ruling has not been challenged on appeal. 

Second, Policy 2153 provides for “noncurriculum-related,

non ASB student groups,” which groups the principal shall

approve provided they meet several additional requirements,

such as that they do not disrupt the school environment.

While Policy 2153 groups may meet on school grounds

before or after school, these groups do not receive other benefits accorded only to ASB-sponsored student clubs. Most significantly, only ASB-chartered groups may receive ASB

funding and engage in purchasing through the Kent School

District Finance Department. Each ASB club is provided with

a faculty advisor or adult advisor designee, who must be present at all club meetings and assists in the planning and handling of the club’s affairs. ASB clubs are also allowed to

conduct meetings during noninstructional time, advertise their

activities in school, use the public address system, and are

TRUTH v. KENT SCHOOL DISTRICT 12451
recognized in the school yearbook. The District states that

Truth “is free to operate as a private Policy 2153 group,” but

argues that Truth was properly denied ASB recognition. 

Third, Policy 2340P regulates “religious related activities

or practices,” and provides guidelines for schools addressing

religious holidays, symbols, ceremonies, topics, activities, and

beliefs. This policy also provides that “[s]tudents, parents, and

employees who are aggrieved by practices or activities conducted in the school or district may seek resolution of their

concern first with the building principal, then with the district

superintendent or designee, or use ombudservices, which is

available through the Legal Services Department.” 

Washington State also has a relevant non-discrimination

law, which the District relies on to justify its denial of ASB

recognition for Truth. In 2003, Washington Revised Code

§ 49.60.215 (West 2006) provided that: 

It shall be an unfair practice for any person or the

person’s agent or employee to commit an act which

directly or indirectly results in any distinction,

restriction, or discrimination, . . . or the refusing or

withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort,

accommodation, assemblage, or amusement, except

for conditions and limitations established by law and

applicable to all persons, regardless of race, creed,

color, national origin, sexual orientation, sex, the

presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a disabled person. 

The District has argued that these non-discrimination policies

require it to deny ASB recognition to Truth. 

As of April 3, 2003, there were thirty ASB-recognized

clubs at Kentridge. While the record does not contain the

12452 TRUTH v. KENT SCHOOL DISTRICT
charters of all the clubs, it appears that many of them have

selective membership criteria. Indeed, each charter application contains a section for “Membership Criteria.” 

The EarthCorps, for example, requires members to show

“interest and dedication toward environmental issues.” Similarly, the Key Club requires that members be “interested in

service, qualified scholastically, of good character, possessing

leadership potential . . . [and] willing to perform at least fifty

hours of . . . service.” The Gay-Straight Alliance requires that

students “must be willing to work towards the goals of the

club” to be members. These goals include “bring[ing]

GLBTQ [Gay, Lesbian, Bisexual, Transgendered, and Questioning] issues into the open, while working to decrease

homophobia.” Other goals include “changing stereotypes”

and “fight[ing] heterosexism and other forms of oppression.”

The National Honor Society selects its members based on

“outstanding scholarship, character, leadership, and service,”

and requires them to “behave in a courteous and respectful

manner, refraining from language and actions that might bring

discredit upon themselves.” It also requires members to

refrain from using or possessing alcohol or illegal substances.

Participation in school sports requires maintaining a certain

grade point average and attendance record, not using drugs or

alcohol, and complying with the “sports code.” Finally, a

Men’s Honor Club and a Girl’s Honor Club also operate at

Kentridge as ASB-recognized groups. Each club has genderexclusive membership. 

The district court entered summary judgment on all of

Truth’s claims under Monell v. Department of Social Services,

436 U.S. 658 (1978), with the exception of the Act claim. The

court held that the requirements of municipal liability under

42 U.S.C. § 1983 were not satisfied, and therefore entered

summary judgment in favor of the District. It also held that

the actions against the individual defendants in their official

capacities were functionally equivalent to suits directly

TRUTH v. KENT SCHOOL DISTRICT 12453
against the municipality, and therefore Truth’s claims against

them failed. 

The district court ruled on the merits of the Act and some

of the First Amendment claims, addressing the latter as an

alternate holding if its Monell ruling were to be reversed. It

held that the restrictions on general membership in the third

charter constituted a legitimate basis for denying the third

charter and that these claims therefore failed. 

The district court did not rule on the remaining claims

based on its belief that “Plaintiffs’ cursory Equal Protection

Clause, Establishment Clause, and Free Exercise Clause arguments are all subsumed within their First Amendment argument.” The district court also did not address the District’s

argument that granting ASB recognition to Truth would violate the Establishment Clause. 

On appeal, both sides agree that only the third charter is

before us. Truth makes this concession even though this

action was filed before the third charter and its complaint only

addresses the denial of its second charter. 

This appeal requires us to review many determinations by

the district court. As to each issue, we review de novo. We

review a district court’s summary judgment de novo. See

Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). In determining whether summary judgment was appropriate, we view

the evidence in the light most favorable to Truth, the nonmoving party. See Olsen v. Idaho State Bd. of Med., 363 F.3d

916, 922 (9th Cir. 2004). “We may affirm on any ground supported by the record.” Id. We also review de novo the district

court’s Monell rulings, see Doe v. Lebbos, 348 F.3d 820, 825

(9th Cir. 2003), its “decision regarding the scope of a constitutional right,” see United States v. Napier, 436 F.3d 1133,

1135-36 (9th Cir. 2006), and its interpretation of the Act, see

SEC v. McCarthy, 322 F.3d 650, 654 (9th Cir. 2003).

12454 TRUTH v. KENT SCHOOL DISTRICT
II.

Before addressing the merits, we consider our jurisdiction.

The District argues that Truth lacks standing under City of Los

Angeles v. Lyons, 461 U.S. 95 (1983), because Truth has

failed to meet the “likelihood of recurrence” requirement. The

District asserts that Truth “cannot say the ASB or the District

will always deny another Club application or even the same

application.” 

[1] In order to establish Article III standing, 

a plaintiff must show (1) it has suffered an “injury in

fact” that is (a) concrete and particularized and (b)

actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged

action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision. 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528

U.S. 167, 180-81 (2000). Although the District has not made

any arguments regarding these specific factors, we have an

independent obligation to address whether we have subjectmatter jurisdiction. See Dittman v. California, 191 F.3d 1020,

1025 (9th Cir. 1999). “[A]t the summary judgment stage the

plaintiffs need not establish that they in fact have standing,

but only that there is a genuine question of material fact as to

the standing elements.” Cent. Delta Water Agency v. United

States, 306 F.3d 938, 947 (9th Cir. 2002). 

[2] With respect to injunctive relief, the Supreme Court has

also required that a plaintiff show that “he is realistically

threatened by a repetition of [the violation].” Lyons, 461 U.S.

at 109. “The plaintiff need only establish that there is a reasonable expectation that his conduct will recur, triggering the

alleged harm; he need not show that such recurrence is probable.” Jones v. City of Los Angeles, 444 F.3d 1118, 1127 (9th

TRUTH v. KENT SCHOOL DISTRICT 12455
Cir. 2006), citing Honig v. Doe, 484 U.S. 305, 318 & n.6

(1988). While we have extended this requirement to declaratory relief, see Gest v. Bradbury, 443 F.3d 1177, 1181 (9th

Cir. 2006), it does not apply to monetary damages, see Lyons,

461 U.S. at 105. The District’s standing argument therefore

does not implicate Truth’s standing to seek nominal damages.

The District asserts that the Establishment Clause, state

law, and its own non-discrimination policies mandate that it

deny ASB recognition to Truth. If the District believes that

three independent and binding legal authorities compel it to

deny Truth’s application, we do not see how the District

might approve the same or a similar charter request in the

future. 

[3] The District’s written non-discrimination policies also

support Truth’s standing arguments. We have held that plaintiffs “may demonstrate that an injury is likely to recur by

showing that the defendant had . . . a written policy, and that

the injury ‘stems from’ that policy. Where the harm alleged

is directly traceable to a written policy there is an implicit

likelihood of its repetition in the immediate future.” Fortyune

v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.

2004) (internal quotations and alterations omitted). Here, the

harm is traceable to the District’s policies, which the District

has argued compel it to deny ASB recognition to Truth. 

Additionally, despite Tyler’s request that the District treat

his letter as a “formal request for appeal,” the District took no

action. This is evidence that another charter request is likely

to meet the same fate as the previous three. Finally, the District has provided nothing beyond its own speculation that the

outcome might be different if Truth submitted a fourth charter. The legal positions it has taken in this litigation strongly

suggest that no similar applications will ever be approved. 

[4] Under these circumstances, we conclude that Truth has

established at least a genuine issue of material fact as to

12456 TRUTH v. KENT SCHOOL DISTRICT
whether there is a reasonable expectation that the alleged

injury will recur. Therefore, Truth has standing to seek each

of its requested forms of relief. 

The District also suggests that this dispute is not ripe for

review, and that we thus lack jurisdiction, because Truth did

not bring the dispute to the Kent School District Board or

Superintendent through Policy 2340P. The District is wrong.

The Supreme Court has explicitly held that exhaustion is not

required for claims brought under 42 U.S.C. § 1983. See Steffel v. Thompson, 415 U.S. 452, 472-73 (1974). Exhaustion

cannot be dispositive under a ripeness analysis; otherwise

ripeness doctrine would impose a de facto exhaustion requirement, in violation of Steffel. Thus, the alleged failure to

exhaust administrative remedies may be at most only a factor

in the ripeness analysis. 

[5] Nevertheless, it appears that Truth did exhaust the formal appeal system. Tyler’s May 6 letter to the District’s counsel asked that the letter “serve as a formal request for appeal.”

The District has not provided any reason why this notification

was not sufficient to trigger its appeals process, and no reason

is apparent in the record. The District’s failure to take any

action as a result of this request does not indicate that Truth

failed to bring the matter to the attention of the District. Under

these circumstances, there is at least a genuine issue of material fact as to whether Truth exhausted the District’s grievance

procedures. 

Nearly every other factor suggests that this case is ripe for

decision. Under the Kentridge ASB Constitution, “[a]ny

rejected charters must be resubmitted within two weeks of

rejection with the required changes made or the charter shall

be permanently rejected.” The ASB Constitution neither provides for any additional review, nor suggests that the ASB

Council’s decision lacked finality. 

Furthermore, there is no doubt that the effects of the denial

of Truth’s charter have been felt in a concrete way by the

TRUTH v. KENT SCHOOL DISTRICT 12457
appellants. Truth’s members have experienced three denials

of their applications, as well as protracted delays in obtaining

any action from the ASB Council and District. The harm that

Truth has complained of does not “rest[ ] upon contingent

future events” or ones that “may not occur at all.” Texas v.

United States, 523 U.S. 296, 300 (1998) (internal quotation

omitted). Instead, Truth complains of discrete events that have

already occurred. 

[6] Finally, “in evaluating ripeness, courts assess both the

fitness of the issues for judicial decision and the hardship to

the parties of withholding court consideration.” Ass’n of Am.

Med. Colls. v. United States, 217 F.3d 770, 779-80 (9th Cir.

2000) (internal quotation omitted). We conclude the hardship

to Truth in denying adjudication outweighs the hardship to the

District in deciding this appeal. Truth’s application for ASB

recognition languished for nearly sixteen months without any

significant action being taken, and the ASB process appears

to have stalled until Truth obtained counsel and threatened to

sue. More than five years have passed since the submission of

the first charter, and declining to decide this appeal now

would present a significant hardship to appellants. 

[7] By contrast, the hardship to the District is significantly

less severe. The District has been aware of Truth’s arguments

for a long time and has had ample opportunity to take corrective action or change its policies, if it so desired. Its legal

positions on appeal show that it does not believe any remedial

action is appropriate and that it believes the denial of ASB

recognition was proper. We therefore conclude that this case

is ripe for decision.

III.

[8] We must also consider the district court’s ruling that the

requirements of Monell are not met. Monell permits section

1983 actions against municipalities, but requires plaintiffs to

show that their injuries resulted from “execution of a govern12458 TRUTH v. KENT SCHOOL DISTRICT
ment’s policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent

official policy.” 436 U.S. at 694. Monell’s requirements do

not apply where the plaintiffs only seek prospective relief,

which is the case here. See Chaloux v. Killeen, 886 F.2d 247,

250-51 (9th Cir. 1989). The District acknowledges the controlling effect of Chaloux, but argues that it should be overruled because it “rests on shaky grounds.” 

[9] It is well established in our circuit that while 

a three judge panel normally cannot overrule a decision of a prior panel on a controlling question of law,

we may overrule prior circuit authority without taking the case en banc when an intervening Supreme

Court decision undermines an existing precedent of

the Ninth Circuit, and both cases are closely on

point. 

Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th

Cir. 2002) (internal citation and quotations omitted). The District argues that two Supreme Court cases, Board of County

Commissioners of Bryan County v. Brown, 520 U.S. 397

(1997), and McMillian v. Monroe County, 520 U.S. 781

(1997), show that the “Supreme Court has re-emphasized the

importance and vitality of the doctrine that requires a municipal policy as a precondition to a lawsuit under § 1983.” Neither of these cases addresses whether Monell applies to

actions only seeking prospective relief. We have no authority

to overrule Chaloux. Chaloux applies, and the district court’s

Monell ruling is reversed.

IV.

Relying on its non-discrimination policies, the District

points to three aspects of Truth’s third charter that justify its

decision to deny the club ASB recognition: 1) the general

membership restrictions, 2) the leadership and voting memTRUTH v. KENT SCHOOL DISTRICT 12459
bership restrictions, and 3) the name “Truth.” The district

court granted summary judgment based only on the first justification, and explicitly declined to reach the other two.

Accordingly, we too limit our analysis to the general membership restrictions. So long as the District had at least one permissible basis for rejecting Truth’s charter, the district court

properly granted summary judgment, and we need not address

the District’s remaining justifications. 

We begin our analysis by considering whether the District

violated the Act. If we determine that it did not, we then move

on to consider whether the District’s actions ran afoul of the

First Amendment. See Prince v. Jacoby, 303 F.3d 1074, 1077

(9th Cir. 2002) (“We consider each of Prince’s access claims

separately, first under the Act, and then the First Amendment,

to the extent we find them outside the scope of the Act”). 

A.

[10] States have the constitutional authority to enact legislation prohibiting invidious discrimination. See Roberts v.

United States Jaycees, 468 U.S. 609, 624-26 (1984) (reviewing the history of state anti-discrimination laws and observing

that a “State enjoys broad authority to create rights of public

access on behalf of its citizens”). Truth asserts that it does not

discriminate based on religion in violation of the plain language of the District’s policies, but rather imposes a code of

conduct not unlike those of other approved ASB clubs. Even

assuming that non-Christians would be able to comply with

Truth’s view of “Christian character, Christian speech, Christian behavior and Christian conduct,” we hold that the

requirement that members possess a “true desire to . . . grow

in a relationship with Jesus Christ” inherently excludes nonChristians. 

[11] Having determined that the third charter violates the

District’s non-discrimination policies, we are led to hold that

the District’s denial of ASB recognition on this account

12460 TRUTH v. KENT SCHOOL DISTRICT
would be consistent with the Act. The Act requires federallyfunded schools that have created a limited open forum to

grant religious clubs benefits and privileges afforded to all

other non-curriculum clubs. See Bd. of Educ. of the Westside

Cmty. Schs. v. Mergens, 496 U.S. 226, 235-36 (1990); Prince,

303 F.3d at 1081 (“[T]he term ‘equal access’ means what the

Supreme Court said in Widmar [v. Vincent, 454 U.S. 263,

267-71 (1981)]: religiously-oriented student activities must be

allowed under the same terms and conditions as other extracurricular activities . . .”). Prince held that the rights protected

under the Act include equal access to some of the benefits

associated with ASB status, including ASB funding and public communication techniques. 303 F.3d at 1084-90. The District does not argue that it is not required under the Act to

provide equal access to the ASB program. 

In interpreting the Act, we begin with its plain language.

“Where the intent of Congress has been expressed in reasonably plain terms, that language must ordinarily be regarded as

conclusive.” Id. at 1079 (internal quotations and citation omitted). Where there may be uncertainty, however, we rely on

the Supreme Court’s direction that the Act is to be “interpreted broadly,” Mergens, 496 U.S. at 239, as well as cases

deciding analogous issues under the First Amendment. Cf.

Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 855-

56 (2d Cir. 1996) (adopting similar approach). 

[12] By its plain terms, the Act prevents only denials of

access or fair opportunity or discrimination “on the basis of

the religious, political, philosophical, or other content of the

speech at [a club’s] meetings.” 20 U.S.C. § 4071(a). Therefore, once it is established that the secondary school receives

federal funds and has created a limited open forum, the club

must demonstrate two additional elements to prevail: 1) a

denial of equal access, or fair opportunity, or discrimination;

2) that is based on the “content of the speech” at its meetings.

TRUTH v. KENT SCHOOL DISTRICT 12461
[13] The District denied Truth ASB status, at least in part,

based on its discriminatory membership criteria, not the religious “content of the speech.”

1

 The Act does not define “content of the speech,” but that phrase has a particular meaning

in First Amendment jurisprudence. We have held that

“whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute

describes speech by content then it is content based.” Menotti

v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) (quotations and citation omitted). Similarly, a “restriction on expressive activity is content-neutral if it is . . . based on a nonpretextual reason divorced from the content of the message

attempted to be conveyed.” Id. (quotations and citation omitted). 

The Act, through which Congress extended the reasoning

of the Supreme Court’s 1981 decision in Widmar v. Vincent

to secondary schools, see Mergens, 496 U.S. at 235, tracks

Widmar’s emphasis on discrimination based on the content of

the plaintiff’s speech. Widmar struck down a state university’s regulation prohibiting the use of university buildings or

grounds “for purposes of religious worship or religious teaching.” 454 U.S. 263, 265 (1981). Widmar thus precluded a university’s “discriminatory exclusion from a public forum based

on the religious content of a group’s intended speech,” id. at

269-70, but not its “right to exclude . . . First Amendment

activities that violate reasonable campus rules.” Id. at 277.

Likewise, the Act prevents a school’s unreasonable limitation

on the conduct of a club to the extent the limitation is justified

with reference to the expressive content of the regulated conduct. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791

1Although the District gave several reasons for denying Truth’s charter,

some of which appear to have been based on the content of Truth’s

speech, the district court based its analysis only on the group’s discriminatory membership policies. Therefore, we too limit our analysis to this issue

when determining whether the district court’s summary judgment was

appropriate. 

12462 TRUTH v. KENT SCHOOL DISTRICT
(1989) (“Government regulation of expressive activity is content neutral so long as it is justified without reference to the

content of the regulated speech” (internal quotations and citation omitted)). 

[14] Congress could have written the Act to protect religious clubs against a burden on their speech or activities, but

did not. For example, when Congress passed the Religious

Land Use and Institutionalized Persons Act, it not only prohibited discrimination against religious groups as such but

also limited governments’ abilities to impose even neutral,

nondiscriminatory policies against them: 

No government shall impose or implement a land

use regulation in a manner that imposes a substantial

burden on the religious exercise of a person, including a religious assembly or institution, unless the

government demonstrates that imposition of the burden on that person, assembly, or institution— 

(A) is in furtherance of a compelling governmental interest; and 

(B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1). Thus, Congress knows how to draft

a statute placing otherwise content-neutral laws of general

applicability that incidentally burden a First Amendment

activity under the same judicial scrutiny as laws specifically

targeting the religious content of a group’s expression. See

Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456

F.3d 978, 985-86 (9th Cir. 2006). That is not the case here.

The Act clearly allows exclusions that are not “content”-

based. 

[15] The Act’s legislative history strengthens our conclusion that it prohibits only content-based restrictions on reliTRUTH v. KENT SCHOOL DISTRICT 12463
gious groups. The legislative history focuses on Congress’s

intent to end school districts’ previous practices of treating

religious groups inequitably and forbidding them from meeting on campus. See S. Rep. 98-357, at 6, 1984 U.S.C.C.A.N.

2348, 2352 (1984) (“Despite Widmar, many school administrators across the country are prohibiting voluntary, studentinitiated religious speech as an [e]xtracurricular activity”); id.

at 15, 1984 U.S.C.C.A.N. at 2361 (“[S]chool authorities

across the country are banishing religious clubs from campus

or placing such onerous restrictions on them that meetings

become almost impossible”). The Senate Report recognized

the possibility that religious groups like Truth might claim

that content-neutral policies regulating club membership violate the Act, and disclaimed any such intent: 

At the same time, the guarantee of equal access does

not require special treatment for religious groups.

Religious groups are accorded only the same rights

and privileges as are granted to other student groups.

In practice, however, this means that not all student

groups would receive exactly the same privileges.

There could be many neutral and impartial time,

place, and manner restrictions placed on the use of

school facilities which might produce situations in

which some voluntary groups would not receive precisely the same access received by others. . . . The

access determination could not be made, however,

on the basis that the nature of the activity was religious. 

Id. at 39, 1984 U.S.C.C.A.N. at 2385. The District’s nondiscrimination policies are not time, place or manner restrictions. But like such restrictions, the policies are contentneutral. This strongly suggests that Congress did not intend

the Act to apply to non-discrimination policies. 

[16] The parties do not dispute that the Kent School District

receives federal funding, or that Kentridge has created a lim12464 TRUTH v. KENT SCHOOL DISTRICT
ited open forum for extracurricular student groups. The District contests, however, whether the Act’s guarantee of equal

access, fair opportunity, and non-discrimination protects

Truth’s freedom to exclude those who do not share Christian

values from its general membership. On their face, the District’s non-discrimination policies do not preclude or discriminate against religious speech. Truth also has not shown that

the District justifies its non-discrimination policies with reference to the content of a message Truth’s discriminatory conduct may attempt to convey. The policies are content-neutral.

Therefore, to the extent they proscribe Truth’s discriminatory

general membership restrictions, the policies do not implicate

any rights that Truth might enjoy under the Act. Cf. Rumsfeld

v. Forum for Academic & Institutional Rights, Inc., 547 U.S.

47, 60 (2006) (holding that a statute or regulation that conditions government benefits on a non-discriminatory campus

access policy is properly categorized as conduct, not speech).

Our decision is not inconsistent with that of the Second Circuit, which has focused on the term “speech” in the Act rather

than the content-neutrality (or lack thereof) of school policies.

See Hsu, 85 F.3d at 856 (rejecting argument that Act was not

implicated because “the School did not base its qualified recognition of the Club on what would be said at the Club meetings, but on what could be characterized as the Club’s ‘act’

of excluding non-Christians from leadership”); id. at 859 (Act

triggered “when an after-school religious club excludes people of other religions from conducting its meetings . . . to protect the expressive content of the meetings”). The court’s

decision in Hsu is readily distinguishable from the case at

hand. In Hsu, a Christian group was seeking to impose a religious test for all of its leadership positions. Id. at 849. The

court held that the group’s ability to exclude non-Christians

from some, but not all, of these leadership positions constituted “speech” within the meaning of the Act. Id. at 858. In

contrast, we are only concerned with Truth’s general membership requirements. The Second Circuit’s decision in Hsu

directly supports our holding with respect to these requireTRUTH v. KENT SCHOOL DISTRICT 12465
ments. The court held that “a religious test for membership or

attendance” would be “plainly insupportable,” since “[i]t is

difficult to understand how allowing non-Christians to attend

the meetings and sing (or listen to) Christian prayers would

change the Club’s speech.” Id. at 858 & n.17. 

[17] In short, Truth has not shown that the District’s nondiscrimination policy restricts ASB status on the basis of religion or the religious content of speech. Truth also argues,

however, that the District violated the Act by allowing certain

groups an exemption from the non-discrimination policy. Here

we understand Truth to be challenging an allegedly arbitrary

or discriminatory practice of granting waivers to non-religious

groups, but not religious groups. This challenge is different in

kind from one asserting that the application of the nondiscrimination policy to Truth violates Truth’s rights under

the Act. If indeed the District has a policy of enforcing the

non-discrimination policy only against religious groups, this

policy would of course violate the Act. Many of the so-called

‘exemptions’ that Truth contests are in fact consistent with the

District’s non-discrimination policy. For example, several

clubs, such as the EarthCorps and the Gay-Straight Alliance,

require their members to support a specific political cause, but

nothing in the District’s non-discrimination policy prohibits

discrimination on the basis of political belief. However, at

least two groups, the Men’s Honor Club and the Girl’s Honor

Club, were granted ASB recognition even though their membership is based on gender, a protected ground under the District’s policy. There is no evidence in the record as to why

these groups were allowed apparent waivers from the District’s non-discrimination policy. Thus, to the extent Truth

alleges that the District provided waivers to these groups

while denying them to others, and that decision was made on

the basis of religion or the religious content of speech, Truth

has raised a triable issue of fact.2 Therefore, we reverse the

2Although Truth has raised a triable issue of fact, we call attention to

two potential problems with its argument. First, Congress has specifically

12466 TRUTH v. KENT SCHOOL DISTRICT
district court’s summary judgment and remand for further

proceedings on this limited issue.

B.

[18] We next address whether, and if so how, the First

Amendment may apply where a school denies ASB recognition to a student club based on its membership criteria. As an

initial matter, it is important to emphasize that the members

of Truth are not seeking merely to associate as a group; they

are seeking to associate as a school-sponsored group. Specifically, ASB recognition would give Truth access to ASB

funds, additional access to the school’s property and facilities,

and special rights to post materials around the school. Therefore, we must evaluate the District’s denial of ASB recognition as a restriction on a “limited public forum.” See

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 829 (1995) (applying limited public forum analysis to

religious group’s request for student activities funds); see also

Prince, 303 F.3d at 1091 (holding that a school, through its

ASB program, “created a limited public forum”). 

The limited public forum framework “has been the source

of much confusion” and the precise contours of the term

allowed for “separate but equal” gender discrimination in the context of

school and youth activities. See 20 U.S.C. § 1681(a)(6) (providing that

gender discrimination is allowed with regard to certain social fraternities

and sororities and volunteer youth organizations that have traditionally

been limited to one sex). Therefore, that the District exempts the Men’s

and Girl’s Honor Clubs from its overarching gender discrimination policy

does not, by itself, suggest an arbitrary or discriminatory application of

that policy so as to violate the Act. Second, another high school and a

junior high school in the District have granted ASB-recognition to other

Bible groups that do not discriminate in their membership criteria, making

it even less likely that the District’s application of its anti-discrimination

policy in this case was merely a pretext for religious animus. Nevertheless,

because the record is devoid of any evidence as to the actual reason that

the District granted a non-discrimination waiver to the Men’s and Girl’s

Honor Clubs, we must remand for further proceedings. 

TRUTH v. KENT SCHOOL DISTRICT 12467
“have not always been clear.” Hopper v. City of Pasco, 241

F.3d 1067, 1074 (9th Cir. 2001) (internal quotations and citation omitted). The Supreme Court first addressed the concept,

indirectly, in Widmar. The Court recognized that, although

the state is not required to open certain fora to public discourse, once it elects to do so, it “assume[s] an obligation to

justify its discriminations and exclusions under applicable

constitutional norms.” Widmar, 454 U.S. at 267-68. Two

years later, in Perry Education Association v. Perry Local

Educators’ Association, 460 U.S. 37, 44-45 (1983), the

Supreme Court clarified that there are three categories of

government-run fora. “At one end of the spectrum are streets

and parks which have immemorially been held in trust for the

use of the public.” Id. at 45 (internal quotations omitted). On

the opposite end of the spectrum are those government properties that have not been traditionally considered open to the

public. Id. at 46. Finally, falling somewhere in between are

limited public fora, which “consist[ ] of public property which

the state has opened for use by the public as a place for

expressive activity.” Id. at 45. 

[19] In Rosenberger, the Supreme Court held that the government may exclude speech in a “limited public forum,” so

long as its reasons for doing so are viewpoint neutral and

“reasonable in light of the purpose served by the forum.” 515

U.S. at 829 (quotations and citation omitted). Access to ASB

recognition qualifies as a limited public forum. See Prince,

303 F.3d at 1091. Therefore, we must consider whether the

District’s policy of restricting access to the ASB forum based

on compliance with its non-discrimination policy is viewpoint

neutral and reasonable in light of the purposes of the forum.

[20] The ASB Constitution makes it clear that the purpose

of the organization “is to develop attitudes of and practice in

good citizenship within the school; to promote harmonious

relations between students, clubs, and activities; and to act as

a forum for student and faculty expression.” The constitution

further states that this purpose will be carried out by

12468 TRUTH v. KENT SCHOOL DISTRICT
“[h]elping the student body develop a regard for law and

order by obeying, honoring, and sustaining the laws of Washington State and King County, as well as the rules of Kentridge Senior High School. . . .” These broad statements of

purpose show that the purpose of the ASB program is to

advance the school’s basic pedagogical goals. The Supreme

Court has emphasized that part of a school’s mission is to

instill in students the “shared values of a civilized social

order,” which includes instilling the value of nondiscrimination. See Hazelwood Sch. Dist. v. Kuhlmeier, 484

U.S. 260, 272 (1988). Therefore, the District’s decision to

restrict access to the ASB program based on a group’s willingness to adhere to the school’s non-discrimination policy is

reasonable in light of the purposes of the forum. 

Because this policy was reasonable in light of the purposes

served by the ASB, we must next consider whether the

group’s exclusion was viewpoint neutral. The Supreme Court

has explained that “[v]iewpoint discrimination is . . . an egregious form of content discrimination,” and occurs when “the

specific motivating ideology or the opinion or perspective of

the speaker is the rationale for the restriction.” Rosenberger,

515 U.S. at 829 (emphasis added); see also Perry Educ.

Ass’n, 460 U.S. at 46 (regulation on access to a forum is not

viewpoint neutral if it is “an effort to suppress expression

merely because public officials oppose the speaker’s view”).

In cases where restriction to the forum is based solely on the

group’s religious viewpoint, the restriction is invalid. This

was the case in Prince, where the school refused to recognize

the school group World Changers “based purely on the

[group’s] religious viewpoint.” 303 F.3d at 1091. 

[21] Here, in contrast, the school is not denying Truth

access based solely on its religious viewpoint, but rather on

its refusal to comply with the District’s non-discrimination

policy. The District was therefore not engaging in viewpoint

discrimination; the “perspective of the speaker” was not the

“rationale” for denying Truth access to the limited public

TRUTH v. KENT SCHOOL DISTRICT 12469
forum. See Rosenberger, 515 U.S. at 829. Applying the nondiscrimination policy to exclude Truth does not show that the

school administrators acted “merely because [they] oppose

the speaker’s view.” Perry, 460 U.S. at 46. In short, the District no more engaged in viewpoint discrimination by excluding Truth for refusing to comply with its non-discrimination

policy than it would have engaged in viewpoint discrimination by refusing to grant ASB status to a Student Pro-Drug

Club that refused to obey the school’s anti-drug policy. Cf.

Morse v. Frederick, 127 S.Ct. 2618, 2629 (2007) (holding that

schools may censor even private student speech that occurs

on school grounds that “they reasonably regard as promoting

illegal drug use”). 

[22] This conclusion, of course, rests on the premise that

the ASB actually denied Truth’s recognition based on its failure to comply with the District’s non-discrimination policy.

There is evidence in the record that other groups, such as the

Men’s and Girl’s Honor Clubs, were granted ASB recognition

despite violating the District’s non-discrimination policy.

Therefore, to the extent Truth argues that it was denied an

exemption from the non-discrimination policy based on the

content of its speech, we hold it has raised a triable issue of

fact, and reverse the district court’s summary judgment.

V.

[23] Truth also makes a claim under the Free Exercise

Clause, the Establishment Clause, and the Equal Protection

Clause. The district court did not explicitly reach these

claims, on the grounds that Truth’s “cursory Equal Protection

Clause, Establishment Clause, and Free Exercise arguments

are all subsumed within their First Amendment argument . . .

.” On appeal, Truth continues to give cursory treatment to

these claims. Nevertheless, Truth may have a valid argument.

As discussed earlier, we are remanding to the district court to

determine whether Truth was denied an exemption from the

District’s non-discrimination policy, and whether that denial

12470 TRUTH v. KENT SCHOOL DISTRICT
was based on religion or the content of Truth’s speech. To the

extent Truth can make out a colorable First Amendment violation on these grounds, it may also have a Free Exercise

claim, since “the Supreme Court noted that free exercise

claims implicating other constitutional protections, such as

free speech, could qualify for strict scrutiny review . . . .” Am.

Family Ass’n v. City & County of San Francisco, 277 F.3d

1114, 1124 (9th Cir. 2002). Moreover, if Truth can demonstrate that it was singled out for unequal treatment on the

basis of religion, it may also have a potentially valid Equal

Protection or Establishment Clause argument. Therefore, we

remand these issues to the district court to be considered

along with the exemption issue discussed previously. 

Finally, the District has argued that the ASB has free

speech rights that would be violated if it were compelled to

recognize Truth as an ASB organization. The ASB is not a

party to this appeal and there is no indication that the District

has authorization from the ASB to assert any such First

Amendment claims. We conclude that the District lacks prudential standing to assert the ASB’s free speech rights. See

Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (“[A] party

generally must assert his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests

of third parties.” (quotations and citation omitted)).

VI.

It is prudent to address only those issues necessary for our

decision on the third charter application. We hold only that

the District did not violate the Act or Truth’s First Amendment rights by applying its non-discrimination policy to

require Truth to remove its general membership provision. To

the extent Truth alleges that the District violated the Act or

the First Amendment by refusing to provide an exemption to

its non-discrimination policy—based on Truth’s religion or

the content of its speech—we reverse the district court’s summary judgment, and remand for further proceedings. 

TRUTH v. KENT SCHOOL DISTRICT 12471
REVERSED AND REMANDED. 

FISHER, Circuit Judge, concurring, joined by Judge

WARDLAW: 

We write separately to amplify on one issue discussed in

our main opinion. Truth argued that it must be granted access

to the ASB forum because conditioning its access to the ASB

program on a change to its discriminatory membership policy

would infringe its right to engage in speech through “expressive association.” Expressive association may be burdened

when the state requires a group to change its membership

criteria, see Boy Scouts of Am. v. Dale, 530 U.S. 640, 656

(2000); Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984), or

when the state conditions access to a traditional public forum

upon such changes, Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Group of Boston, 515 U.S. 557, 579 (1995). When

the use of school facilities is part of a general public forum,

denying access to those facilities may also implicate the right

to associate freely. See Healy v. James, 408 U.S. 169, 180-81

(1972) (noting that the “college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas’ ” and that

the complete “denial of use of campus facilities for meetings

and other appropriate purposes” implicated a group’s right to

expressive association). 

Even assuming, however, that Truth’s exclusion of nonChristians allows it to engage in speech through expressive

association, its exclusion from the ASB program on account

of its discriminatory policy does not infringe its rights under

the First Amendment. As our opinion explains, when the state

creates a limited public forum, like the ASB program at issue

here, it may restrict access to that forum so long as the restrictions are “viewpoint neutral and reasonable in light of the purpose served by the forum,” even if these rules have the effect

of limiting a group’s ability to engage in protected speech,

12472 TRUTH v. KENT SCHOOL DISTRICT
such as the right to speak, publish on a particular topic or

engage in expressive association. See Rosenberger v. Rector

& Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (“The

necessities of confining a forum to the limited and legitimate

purposes for which it was created may justify the State in

reserving it for certain groups or for the discussion of certain

topics.” (emphasis added)). 

We reject Truth’s suggestion that state action that burdens

a group’s ability to engage in expressive association must

always be subject to strict scrutiny, even if the group seeks to

engage in expressive association through a limited public

forum. Expressive association is simply another way of

speaking, only the group communicates its message through

the act of associating instead of through an act of “pure

speech” such as publishing, marching, speaking or performing. See Dale, 530 U.S. at 648 (holding that the First Amendment protects a group’s ability to exclude members, if

including such members would “impair the ability of the

group to express those views, and only those views, that it

intends to express”). There is no question that acts of expressive association are protected forms of speech under the First

Amendment. See id. at 656; Hurley, 515 U.S. at 579. When

the state restricts access to a limited public forum in a way

that interferes with a group’s speech or expressive association, however, we apply the lesser standard of scrutiny, even

if the same burden on a group’s rights outside a limited public

forum would be subject to strict scrutiny. See Rosenberger,

515 U.S. at 829-30 (applying limited public forum analysis to

a university policy that excluded a group’s access to the

school’s student activity fund, thereby preventing it from publishing a newspaper). To hold otherwise would accord an act

of “pure speech” such as publishing a newspaper — the core

of what the First Amendment protects — less protection than

an act of expressive association. We find no support for such

a proposition, and Truth has identified none.1 Truth, of course,

1

In Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006),

the Seventh Circuit reversed the denial of a preliminary injunction, holdTRUTH v. KENT SCHOOL DISTRICT 12473
has the option of operating as a Policy 2153 group on school

grounds, see 524 F.3d at 963, and as such would be able to

restrict its membership unfettered by the school’s nondiscrimination policy. If Truth wants the additional benefits that

come from participation in the ASB program, however, Truth

must comply with the school’s reasonable, viewpoint-neutral

rules.

ing that a university group had shown that it was “reasonably likely to succeed on the merits” of its First Amendment claim after being excluded

from campus for violating the school’s nondiscrimination policy, which

the group claimed infringed its right to expressive association. Although

the Seventh Circuit applied strict scrutiny in addressing this claim, it notably stated that it could not even determine, on the limited record before

it, whether the university had created an open, limited, or nonpublic

forum. See id. at 866 (“Whether SIU’s student organization forum is a

public, designated public, or nonpublic forum is an inquiry that will

require further factual development, and that is a task properly left for the

district court.”) Walker did not say that strict scrutiny would be appropriate in all cases, even if the university had created something less than an

open forum. 

12474 TRUTH v. KENT SCHOOL DISTRICT