FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALPHA DELTA CHI-DELTA CHAPTER, 

a sorority at San Diego State

University; ALPHA GAMMA OMEGAEPSILON CHAPTER, a fraternity at

San Diego State University;

MELISSA PEREA, an individual,

FKA Melissa Travis; JACKIE LEWIS,

an individual; JAMES ROSENBERG,

an individual; DAVID SHOKAIR, an

individual,

Plaintiffs-Appellants,

and

EVERY NATION CAMPUS MINISTRIES

AT SAN DIEGO STATE UNIVERSITY, a  student organization at San Diego

State University; EVERY NATION

CAMPUS MINISTRIES AT LONG BEACH

STATE UNIVERSITY, a student

organization at California State

University, Long Beach; HALEY

HAWTHORNE, an individual; TREVOR

STOKES, an individual; GWENDOLYN

DAVIS, an individual,

Plaintiffs,

v.

CHARLES B. REED, in his official

capacity as Chancellor of the

California State University; 

9979
STEVEN L. WEBER, in his official 

capacity as President of San Diego

State University; DOUGLAS CASE,

individually and in his official

capacity as Coordinator of

Fraternity and Sorority Life at San

Diego State University, No. 09-55299 Defendants-Appellees,

D.C. No. and  3:05-cv-02186-

F. KING ALEXANDER, in his official LAB-AJB

capacity as President of California OPINION State University, Long Beach;

JEFFREY KLAUS, individually and in

his official capacity as Director of

Student Life and Development at

California State University, Long

Beach,

Defendants. 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

November 1, 2010—Pasadena, California

Filed August 2, 2011

Before: Harry Pregerson, Kenneth F. Ripple,* and

Susan P. Graber, Circuit Judges.

*The Honorable Kenneth F. Ripple, Senior Circuit Judge for the Seventh Circuit, sitting by designation. 

9980 ALPHA DELTA v. REED
Opinion by Judge Pregerson;

Concurrence by Judge Ripple

ALPHA DELTA v. REED 9981
COUNSEL

Benjamin W. Bull and Jeremy D. Tedesco, Alliance Defense

Fund, Scottsdale, Arizona; Jordan W. Lorence (argued), Alliance Defense Fund, Washington, D.C.; David A. French, Alliance Defense Fund, Columbia, Tennessee; and John M.

Stewart, Law Offices of Stewart & Stewart, Orange, California, for the plaintiffs-appellants.

Susan Westover, California State University, Office of General Counsel, Long Beach, California, for the defendantsappellees.

Steven W. Fitschen, Virginia Beach, Virginia, for amicus The

National Legal Foundation.

Elizabeth Gill, American Civil Liberties Union Foundation,

Lesbian Gay Bisexual Transgender Project, San Francisco,

California; David Blair-Loy, American Civil Liberties Union

Foundation of San Diego and Imperial Counties, San Diego,

California; James D. Esseks and Rose A. Saxe, American

Civil Liberties Union Foundation, Lesbian Gay Bisexual

Transgender Project, New York, New York; and Daniel

Mach, American Civil Liberties Union Foundation, Program

on Freedom of Religion and Belief, Washington, D.C., for

amici American Civil Liberties Union and American Civil

Liberties Union of San Diego and Imperial Counties.

9984 ALPHA DELTA v. REED
OPINION

PREGERSON, Circuit Judge:

The Supreme Court held in Christian Legal Society Chapter of the University of California, Hastings College of the

Law v. Martinez that a public law school does not violate the

Constitution when it “condition[s] 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.” 130 S. Ct.

2971, 2978 (2010). The Court referred to the open membership requirement as an “all-comers policy” and concluded that

such a policy was a “reasonable, viewpoint-neutral condition

on access to the student-organization forum.” Id. The Court

further held that the all-comers policy did not violate the Free

Exercise Clause of the First Amendment. Id. at 2995 n.27. 

The Court expressly declined to address whether these

holdings would extend to a narrower nondiscrimination policy

that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified

bases, for example, race, gender, religion, and sexual orientation. See id. at 2982, 2984. The constitutionality of such a policy is the issue before us in this case. We conclude that the

narrower policy is constitutional. We hold, however, that

Plaintiffs have raised a triable issue of fact as to whether the

narrower policy was selectively enforced in this particular

case, thereby violating Plaintiffs’ rights under the First and

Fourteenth Amendments. We affirm in part and reverse in

part, and remand to the district court for further proceedings.

BACKGROUND

Plaintiffs are Alpha Delta Chi, a Christian sorority, and

Alpha Gamma Omega, a Christian fraternity, as well as sevALPHA DELTA v. REED 9985
eral of their officers, at San Diego State University (“San

Diego State”) in California.1

Alpha Delta Chi, the sorority, has several religious requirements for its members, including “personal acceptance of

Jesus Christ as Savior and Lord,” “active participation in

Christian service,” and “regular attendance or membership in

an evangelical church.” 

Alpha Gamma Omega, the fraternity, requires its members

“to sincerely want to know Jesus Christ as their Lord and Savior,” and its officers must sign a “Statement of Faith” reading:

I hearby publicly confess my belief in the Lord Jesus

Christ as God and only Savior and give witness to

the regenerating power of the Holy Spirit in my life.

I will make it a purpose of my life to continue in fellowship with God through prayer and reading of the

Holy Scriptures.

Alpha Gamma Omega officers’ beliefs and practices must be

“consistent with orthodox Christian beliefs.” 

Plaintiffs have repeatedly submitted applications for official recognition in San Diego State’s student organization program. There are approximately 115 officially recognized

student organizations at San Diego State. San Diego State

requires these groups to submit a signed “Student Organization On-Campus Recognition Application,” and on-campus

recognition must be renewed each year. Officially recognized

student organizations receive a number of benefits, such as

university funding, use of San Diego State’s name and logo,

access to campus office space and meeting rooms, free public1Plaintiffs Every Nation Campus Ministries at San Diego State University, Every Nation Campus Ministries at Long Beach State University,

Haley Hawthorne, Trevor Stokes, and Gwendolyn Davis, are not participating in this appeal. 

9986 ALPHA DELTA v. REED
ity in school publications, and participation in various special

university events. Officially recognized groups may set up

informational tables and banners in the student union and participate in various events for recruiting new members. Further, officially recognized fraternities and sororities may be

members of one of four fraternity and sorority councils, which

grants them access to recruitment fairs, leadership conferences, and social activities organized by the councils.

Each time Plaintiffs have applied for official recognition,

they have been denied by San Diego State administrators

because of Plaintiffs’ requirement that their members and

officers profess a specific religious belief, namely, Christianity. These membership requirements conflict with San Diego

State’s nondiscrimination policy, which San Diego State

requires all officially recognized student organizations to

include in their bylaws. The policy states:

On-campus status will not be granted to any student

organization whose application is incomplete or

restricts membership or eligibility to hold appointed

or elected student officer positions in the campusrecognized chapter or group on the basis of race, sex,

color, age, religion, national origin, marital status,

sexual orientation, physical or mental handicap,

ancestry, or medical condition, except as explicitly

exempted under federal law. 

This policy reflects the California State University system’s

Non-Discrimination Regulation, which states:

No campus shall recognize any fraternity, sorority,

living group, honor society, or other student organization which discriminates on the basis of race, religion, national origin, ethnicity, color, age, gender,

marital status, citizenship, sexual orientation, or disability. The prohibition on membership policies that

discriminate on the basis of gender does not apply to

ALPHA DELTA v. REED 9987
social fraternities or sororities or to other university

living groups.

5 Cal. Code Regs. tit. 5, § 41500.

Because Plaintiffs were denied official recognition by San

Diego State, they were denied the benefits of official recognition. They still may hand out flyers and post signs to recruit

new members, but only in areas open to all groups, whether

recognized or not, such as the “free speech steps” of the student union and the wall next to the university bookstore.

Plaintiffs still may use university rooms for meetings and

events, but not for free or at reduced prices, as officially recognized groups are able to do.

Plaintiffs brought suit in federal district court challenging

San Diego State’s nondiscrimination policy under the First

and Fourteenth Amendments. Plaintiffs and Defendants filed

cross-motions for summary judgment, and the district court

granted summary judgment on all counts in Defendants’ favor

while denying Plaintiffs’ motion. Plaintiffs appeal from that

judgment.

STANDARD OF REVIEW

We review a grant of summary judgment de novo. Florer

v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921

(9th Cir. 2011). “We view the evidence in a light most favorable to the non-moving party and decide whether there are

any genuine issues of material fact and whether the district

court correctly applied the substantive law.” FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009). Although in this

case Plaintiffs and Defendants each contend that there are no

genuine issues of material fact and summary judgment is

appropriate, we may still reverse a grant of summary judgment if we find that triable facts remain. See Chevron USA,

Inc. v. Cayetano, 224 F.3d 1030, 1037 (9th Cir. 2000).

9988 ALPHA DELTA v. REED
DISCUSSION

I. Free Speech and Freedom of Expressive Association

Plaintiffs argue that San Diego State’s requirement that

they comply with the nondiscrimination policy forces them to

accept non-Christian members who will “significantly impair

the message [Plaintiffs] joined together to promote.” Appellants’ Br. at 16. This, Plaintiffs claim, violates their First

Amendment right to expressive association.2 Plaintiffs also

argue that San Diego State has excluded them from an expressive forum on the basis of their religious viewpoint, in violation of their free speech rights.

The parties in their briefs disagree as to the proper standard

of review for these claims. After the briefs were filed, however, the Supreme Court decided Christian Legal Society,

which held that when a university excludes a student organization from official recognition for refusing to comply with

the school’s nondiscrimination policy, both freedom of speech

and freedom of expressive association challenges are properly

analyzed under the limited-public-forum doctrine. 130 S. Ct.

at 2984-86 (“[W]e are persuaded that our limited-publicforum precedents adequately respect both [the student

group’s] speech and expressive-association rights, and fairly

balance those rights against [the university’s] interests as

property owner and educational institution.”).

2To be protected by the First Amendment’s right to expressive association, “a group must engage in some form of expression.” Boy Scouts of

Am. v. Dale, 530 U.S. 640, 648 (2000). San Diego State does not dispute

that Alpha Delta Chi and Alpha Gamma Omega engage in expression, so

we proceed on the assumption that Plaintiffs may invoke their right to

expressive association. But see Christian Legal Soc’y, 130 S. Ct. at 3012

(Alito, J., dissenting) (arguing that, although the First Amendment should

protect the right of student religious groups to exclude members who do

not share their faith, such protection would not extend to fraternities and

sororities). 

ALPHA DELTA v. REED 9989
[1] A limited public forum is government property opened

for use by “ ‘certain groups or dedicated solely to the discussion of certain subjects.’ ” Id. at 2984 n.11 (quoting Pleasant

Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009)). In a

limited public forum, the government may impose restrictions

that are “reasonable in light of the purpose served by the

forum,” so long as the government does not “discriminate

against speech on the basis of its viewpoint.” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)

(internal quotation marks omitted). 

[2] Christian Legal Society held that a law school’s student

organization program is a limited public forum. 130 S. Ct. at

2984 n.12. Plaintiffs attempt to distinguish that case, contending that San Diego State’s student organization program is not

a limited public forum, but a designated public forum. A designated public forum is government property “open[ed] for

indiscriminate public use for communicative purposes.”

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508

U.S. 384, 392 (1993). Speech in a designated public forum

has significantly greater protection than speech in a limited

public forum—restrictions on speech in a designated public

forum are subject to strict scrutiny and, therefore, “ ‘must be

narrowly tailored to serve a compelling government interest.’ ” Christian Legal Soc’y, 130 S. Ct. at 2984 n.11 (quoting

Pleasant Grove City, 129 S. Ct. at 1132). 

[3] We see no material distinction between San Diego

State’s student organization program and the student organization program discussed in Christian Legal Society and,

therefore, conclude that San Diego State’s program is also a

limited public forum. Like San Diego State, the university in

Christian Legal Society provided benefits to student groups

within its program, such as financial assistance; access to university newsletters, bulletin boards, and meeting rooms; and

the use of the university’s name and logo. Id. at 2979. In

exchange, the student groups agreed to abide by certain conditions, including an approval process and the school’s nondis9990 ALPHA DELTA v. REED
crimination policy. Id. Thus, both the program in Christian

Legal Society and San Diego State’s program are not “open

for indiscriminate public use,” Lamb’s Chapel, 508 U.S. at

392, but are instead limited to certain groups—student

organizations—which is the hallmark of a limited public

forum, see Christian Legal Soc’y, 130 S. Ct. at 2984 n.11.

The fact that both the school in Christian Legal Society and

San Diego State require student groups to obtain university

approval is further indication that the student organization

programs are limited public forums. See Faith Ctr. Church

Evangelistic Ministries v. Glover, 480 F.3d 891, 909 (9th Cir.

2007) (“Requiring prior permission for access to [a] forum

demonstrates that a public forum has not been created by designation.”), abrogated on other grounds by Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7 (2008). 

[4] Because we conclude that San Diego State’s student

organization program is a limited public forum, we apply the

same analysis to both Plaintiffs’ free speech and expressive

association claims: Plaintiffs’ exclusion from San Diego

State’s student organization program is permissible if San

Diego State’s requirement that student groups adhere to the

nondiscrimination policy is (1) reasonable in light of the purpose of the forum; and (2) viewpoint neutral. 130 S. Ct. at

2988.

A. Reasonableness

In Truth v. Kent School District, we held that a high

school’s requirement that student organizations comply with

a nondiscrimination policy was a reasonable restriction in

light of the purpose of the school’s student organization program. 542 F.3d 634, 649 (9th Cir. 2008), cert. denied, 129 S.

Ct. 2866 (2009) and 129 S. Ct. 2889 (2009), overruled on

other grounds by Los Angeles County v. Humphries, 131 S.

Ct. 447 (2010). The policy prohibited the school—and, by

extension, student organizations officially approved by the

ALPHA DELTA v. REED 9991
school—from discriminating on various grounds such as race,

gender, and religion. Id. at 639. 

To determine whether this policy was reasonable in light of

the purpose of the student organization program, we looked

to the program’s constitution. Id. at 649. The constitution

listed various purposes for the program, including developing

good citizenship, promoting harmonious relationships, facilitating student and faculty expression, and encouraging students to obey, honor, and sustain state and local laws and

school rules. Id. We read these “broad statements of purpose”

to mean that the purpose of the student organization program

was to “advance the school’s basic pedagogical goals.” Id.

We then noted that the Supreme Court had “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 non-discrimination.” Id. (quoting Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260, 272 (1988)). Thus, we concluded that the school’s nondiscrimination policy aligned with

the school’s pedagogical goals and was a reasonable limitation in light of the purpose of the student organization program. See id.

As in Truth, we look to San Diego State’s Student Organizations Handbook to determine the purpose of the student

organization program. The section of the handbook entitled

“Principles of Community” is filled with references to diversity and nondiscrimination: “Underlying San Diego State’s

educational goals are basic values that include . . . freedom

from discrimination . . . . [We] affirm [our] positive commitment toward diversity . . . . We encourage every student organization to make a conscious effort to undertake recruitment

efforts to ensure diversity within the group’s membership and

to take steps to reach populations currently underrepresented.

. . . No organization will direct recruitment . . . toward any

one group (i.e. racial, ethnic, gender, etc.) of potential members. . . . We . . . challenge you to express yourself in a man9992 ALPHA DELTA v. REED
ner that promotes and maintains the ideals of respect,

equality, diversity, and freedom from harassment.”

[5] These statements make clear that one of the intended

purposes of San Diego State’s student organization program

is to promote diversity and nondiscrimination. These statements are far more explicit than the “broad statements of purpose” in Truth—the statements in Truth did not expressly

mention nondiscrimination. See 542 F.3d at 649. Requiring

student groups to adhere to a nondiscrimination policy is reasonable in light of San Diego State’s intended purpose.

[6] Also relevant to the analysis of reasonableness is

whether Plaintiffs have alternative avenues of communication

besides the forum from which they have been excluded. In

Christian Legal Society, the Supreme Court found the university’s nondiscrimination policy “all the more creditworthy”

because the plaintiffs in that case still had many avenues for

expressing their message. 130 S. Ct. at 2991. The university

offered the plaintiffs access to meeting facilities, chalkboards,

and generally available bulletin boards. Id. The Court noted

that, although the plaintiffs were denied use of the student

organization program’s special means of communication, “the

advent of electronic media and social-networking sites

reduces the importance of those channels.” Id. The Court specifically cited references to internet message groups, email,

websites, Google, and MySpace. Id. The Court deemed the

availability of other means of communication “significant” to

limited-public-forum analysis. Id.

[7] As in Christian Legal Society, San Diego State allows

non-recognized groups like Plaintiffs to use campus facilities

for meetings, to set up tables and displays in public areas, and

to distribute literature. Plaintiffs also have access to all the

non-university electronic resources mentioned by the

Supreme Court, as well as new resources invented since then.

Thus, San Diego State’s policy should be deemed as “creditworthy” as the policy in Christian Legal Society.

ALPHA DELTA v. REED 9993
[8] Therefore, San Diego State’s nondiscrimination policy

is reasonable in light of the student organization program’s

purpose of promoting diversity and nondiscrimination.3

B. Viewpoint Neutrality

Plaintiffs contend that San Diego State’s nondiscrimination

policy, as written, discriminates against Plaintiffs’ viewpoint.

Alternatively, Plaintiffs argue that, even if the nondiscrimination policy is viewpoint neutral on its face, San Diego State

has applied it in a discriminatory fashion, exempting some

groups from the policy while requiring other groups to comply with it. We find that the policy is viewpoint neutral as

written, but that there are triable issues of fact as to whether

San Diego State has selectively enforced its nondiscrimination policy.

1. The nondiscrimination policy as written

“ ‘Viewpoint 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 [on speech].’ ” Truth, 542

F.3d at 649-50 (ellipsis in original) (quoting Rosenberger, 515

U.S. at 829). A restriction on speech is unconstitutional if it

is “an effort to suppress expression merely because public

officials oppose the speaker’s view.” Perry Educ. Ass’n v.

Perry Local Educators’Ass’n, 460 U.S. 37, 46 (1983). How3Plaintiffs also point out that a stated purpose of San Diego State’s

forum is to “increase the range of viewpoints advocated in the marketplace

of ideas on campus.” Plaintiffs argue that the nondiscrimination policy is

not reasonable given this purpose, because eliminating groups such as

Plaintiffs actually decreases the number of viewpoints being expressed.

This argument was made and rejected in Christian Legal Society, which

stated that “a State’s restriction on access to a limited public forum ‘need

not be the most reasonable or the only reasonable limitation.’ ” 130 S. Ct.

at 2992 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

U.S. 788, 808 (1985)). 

9994 ALPHA DELTA v. REED
ever, a restriction that “ ‘serves purposes unrelated to the content of expression’ ” and only incidentally burdens some

speakers, messages, or viewpoints, “ ‘is deemed neutral.’ ”

Christian Legal Soc’y, 130 S. Ct. at 2994 (quoting Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989)). “We thus

look to the government’s purpose as the threshold consideration.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753,

763 (1994).

In the context of a student organization program, the

Supreme Court has made clear that an “all-comers” policy

that requires all student groups to accept all members does

not discriminate on the basis of viewpoint. Christian Legal

Soc’y, 130 S. Ct. at 2993. Such a policy “ ‘is justified without

reference to the content [or viewpoint] of the regulated

speech.’ ” Id. at 2994 (alteration in original) (quoting Ward,

491 U.S. at 791). The “all-comers requirement draws no distinction between groups based on their message or perspective.” Id. at 2993. 

Plaintiffs contend that the reasoning and holding of Christian Legal Society do not apply, however, when a school’s

policy prohibits only certain membership requirements, such

as those based on race, gender, or religion, rather than prohibiting all membership requirements, as an all-comers policy

does. The more limited nondiscrimination policy at issue in

this case, Plaintiffs argue, discriminates on the basis of viewpoint because it allows secular belief-based discrimination

while prohibiting religious belief-based discrimination. For

example, under this more limited policy, a student Republican

organization could permissibly exclude Democrats because

the policy does not forbid discrimination on the basis of political belief, but a Christian group could not exclude a Muslim

student because that would discriminate on the basis of religious belief. 

Indeed, San Diego State stipulates that some officially recognized student groups at the university restrict membership

ALPHA DELTA v. REED 9995
to those who believe in the group’s purpose, or “agree with

the particular ideology, belief, or philosophy the group seeks

to promote.” For example, the Immigrant Rights Coalition

requires members to “hold the same values regarding immigrant rights as the organization.” The San Diego Socialists at

San Diego State require students to be in “agreement with our

purpose.” The Hispanic Business Student Association opens

membership to those “who support the goals and objectives”

of the organization. Plaintiffs argue that San Diego State is

discriminating against their viewpoint by allowing these secular groups to discriminate on the basis of belief, while prohibiting Plaintiffs from doing so on the basis of their religious

beliefs.

Plaintiffs’ argument, while seemingly compelling at first

glance, does not survive closer scrutiny. We accept Plaintiffs’

assertion that San Diego State’s nondiscrimination policy

incidentally burdens groups that wish to exclude others on the

basis of religion, but does not burden groups that do not

exclude or exclude on bases not prohibited by the policy. But

this assertion is insufficient to prove viewpoint discrimination, because Plaintiffs have put forth no evidence that San

Diego State implemented its nondiscrimination policy for the

purpose of suppressing Plaintiffs’ viewpoint, or indeed of

restricting any sort of expression at all. See Truth, 542 F.3d

at 647 (upholding high school’s requirement that plaintiff student group comply with nondiscrimination regulations

because group “ha[d] not shown that [the school district] justifie[d] its non-discrimination policies with reference to the

content of [the group’s] message”). 

[9] San Diego State asserts that the purpose of its policy,

which closely tracks the nondiscrimination policy applied to

the entire California State University system, is to prevent discrimination and to ensure that the school’s resources are

“open to all interested students without regard to special protected classifications.” Appellees’ Br. at 27. As the Supreme

Court has made clear, antidiscrimination laws intended to

9996 ALPHA DELTA v. REED
ensure equal access to the benefits of society serve goals “unrelated to the suppression of expression” and are neutral as to

both content and viewpoint. Roberts v. U.S. Jaycees, 468 U.S.

609, 623-24 (1984) (holding that a state law prohibiting discrimination on the basis of race, color, creed, religion, disability, national origin, or sex “does not aim at the suppression of

speech [and] does not distinguish between prohibited and permitted activity on the basis of viewpoint”); Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557,

572 (1995) (stating that a public accommodations law forbidding discrimination on the basis of sexual orientation and

other grounds did not, “on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against

individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds”). Like the laws

challenged in Roberts and Hurley, San Diego State’s nondiscrimination policy does not “target speech or discriminate on

the basis of its content,” but instead serves to remove access

barriers imposed against groups that have historically been

excluded.

We reached a similar conclusion in Truth, a case with facts

very close to those of the instant case. In Truth, we held that

a high school’s student organization program did not discriminate on the basis of viewpoint when it denied access to a religious student group for refusing to comply with a

nondiscrimination policy prohibiting exclusion on enumerated

grounds. 542 F.3d at 650. Like Alpha Delta Chi and Alpha

Gamma Omega, the student group in Truth required its members to be Christian, which violated the school district’s nondiscrimination policy prohibiting discrimination based on

“race, creed,[4] color, national origin, sex, marital status, previous arrest . . . , incarceration, or physical, sensory or mental

4The district court interpreted the reference to “creed” to mean that the

policy prohibited discrimination on the basis of religion. Truth, 542 F.3d

at 639. This ruling was not challenged on appeal. Id.

ALPHA DELTA v. REED 9997
disabilities.” Id. at 639, 645 (ellipsis in original). The student

group in Truth challenged its exclusion from the student organization program as a violation of various constitutional and

statutory provisions, including its First Amendment rights of

free speech and expressive association. Id. at 637.

We held that the school’s nondiscrimination policy in Truth

was neutral as to content and viewpoint.5Id. at 647, 650.

While acknowledging that the student group may have been

attempting to convey a message via its discriminatory conduct, we found that the student group “ha[d] not shown that

the [school district] justifie[d] its non-discrimination policies

with reference to the content” of that message. Id. at 647. We

concluded that the school’s denying the plaintiff student

group access to the student organization program was “based

on [the student group’s] discriminatory membership criteria,

not the religious ‘content of the speech.’ ” Id. at 645. Thus,

“the school [was] not denying [the religious student group]

access based solely on its religious viewpoint, but rather on

its refusal to comply with the [school district’s] nondiscrimination policy.”

6

Id. at 650. Truth, along with Roberts

5Much of our analysis in Truth focused on whether the school’s exclusion of the plaintiff student group violated the Equal Access Act, 20

U.S.C. § 4071(a). See 542 F.3d at 644-48. That analysis is nonetheless relevant to the question of content and viewpoint neutrality, because the

Equal Access Act, like the First Amendment, forbids “denial of equal

access, or fair opportunity, or discrimination” based on the content (or

viewpoint) of a group’s speech. Id. at 645. Thus, in analyzing the plaintiffs’ claim under the Equal Access Act, we necessarily had to decide

whether the school’s nondiscrimination policy was content neutral. Content neutrality for purposes of the Equal Access Act is identical to content

neutrality for First Amendment claims; in Truth, we relied on First

Amendment cases to guide our analysis of content neutrality under the

Equal Access Act. See id. at 645-46 (citing Ward, 491 U.S. at 791; Widmar v. Vincent, 454 U.S. 263, 269-70 (1981); Menotti v. City of Seattle,

409 F.3d 1113, 1129 (9th Cir. 2005)). 

6

In Truth, as in the instant case, several approved student groups had

non-religious belief-based membership requirements. See 542 F.3d at 648

(noting that “several [student] clubs, such as the EarthCorps and the GayStraight Alliance, require their members to support a specific political

cause”). We did not address the existence of these groups in our constitutional analysis. See id. at 650. 

9998 ALPHA DELTA v. REED
and Hurley, compels the conclusion that San Diego State’s

nondiscrimination policy is neutral as to content and viewpoint. 

[10] It is true that content-neutral antidiscrimination laws

can nonetheless violate the First Amendment right of expressive association when used to force a private group to accept

members who materially interfere with the message the group

wishes to express. See Boy Scouts of Am. v. Dale, 530 U.S.

640, 659 (2000); Hurley, 515 U.S. at 572-73. Plaintiffs argue

that requiring them to accept non-Christians into their groups

“forces them to say what they do not want to say.” Appellants’ Br. at 48. Were San Diego State compelling Plaintiffs

to include non-Christians, Plaintiffs might have a sound argument. But as Christian Legal Society makes clear, there is a

difference “between policies that require action and those that

withhold benefits.” 130 S. Ct. at 2986. The Supreme Court

declined to apply the line of expressive association cases—

including Dale and Hurley—in the context of a student organization program, because the university was not forcing student groups to accept unwanted members, but only

conditioning certain benefits on the adoption of a nondiscrimination policy. Id. Instead, the Court analyzed the plaintiffs’

First Amendment challenge under the limited-public-forum

doctrine, which permits reasonable restrictions on expression

so long as they are viewpoint neutral. Id. at 2984, 2986.

Under this reasoning, San Diego State’s reasonable and

viewpoint-neutral requirement that recognized student groups

comply with its nondiscrimination policy does not violate

Plaintiffs’ right to expressive association. Plaintiffs are free to

express any message they wish, and may include or exclude

members on whatever basis they like; they simply cannot

oblige the university to subsidize them as they do so.

Again, we do not doubt that, regardless of San Diego

State’s purpose in enacting its nondiscrimination policy, the

policy will have the effect of burdening some groups more

than others. But the fact that a “regulation has a differential

ALPHA DELTA v. REED 9999
impact on groups wishing to enforce exclusionary membership policies” does not render it unconstitutional. Id. at 2994

(internal quotation marks omitted). “ ‘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.’ ” Id. (quoting Ward, 491 U.S. at

791). 

[11] Thus, we hold that San Diego State’s nondiscrimination policy is viewpoint neutral as written. Constitutionally

speaking, therefore, San Diego State’s policy is not materially

different from the content-neutral all-comers policy approved

in Christian Legal Society, and must be similarly upheld

against First Amendment challenge.

2. The nondiscrimination policy as applied

[12] A nondiscrimination policy that is viewpoint neutral

on its face may still be unconstitutional if not applied uniformly. See Truth, 542 F.3d at 650. In Truth, we expressed

concern that “at least two groups, the Men’s Honor Club and

the Girl[s’] Honor Club, were granted [official] recognition

even though their membership is based on gender, a protected

ground under the [school district’s nondiscrimination] policy.” Id. at 648. “Thus, to the extent [the plaintiff student

group] alleges that the [school 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, [the plaintiffs have] raised a triable issue of fact.” Id.

We reversed the district court’s summary judgment and

remanded “for further proceedings on this limited issue.” Id.

Although we were not convinced the school district had acted

improperly, remand was necessary because “the record [was]

devoid of any evidence as to the actual reason that the [school

district] granted a non-discrimination waiver to the Men’s and

Girl[s’] Honor Clubs.” Id. at 648 N.2.7

7The text of this paragraph comes from Truth’s discussion of the Equal

Access Act. However, we applied similar, if less fully articulated, reasoning in our First Amendment discussion. See Truth, 542 F.3d at 650. 

10000 ALPHA DELTA v. REED
In this case, Plaintiffs also offer evidence that San Diego

State has granted official recognition to some religious student groups even though those groups, like Plaintiffs, restrict

membership or eligibility to hold office based on religious

belief. For example, the Catholic Newman Center’s application for official recognition by San Diego State provides that

its officers must be “members, in good standing, with the

Catholic Church.” Further, some non-religious but officially

recognized groups appear to discriminate on prohibited

grounds, in contravention of the policy. For instance, the African Student Drama Association’s constitution limits its leadership positions to students from Africa.

[13] As in Truth, the evidence that some student groups

have been granted an exemption from the nondiscrimination

policy raises a triable issue of fact. See 542 F.3d at 650. We

note that Plaintiffs’ characterization of the evidence may not

be correct. For example, it is possible that these groups were

approved inadvertently because of administrative oversight,

or that these groups have, despite the language in their applications, agreed to abide by the nondiscrimination policy. But

as it stands now, the record does not adequately explain why

some official student groups at San Diego State appear to

have membership requirements that violate the school’s nondiscrimination policy. We therefore reverse in part the district

court’s grant of summary judgment in favor of Defendants on

Plaintiffs’ free speech and expressive association claims. We

remand for consideration of the question whether San Diego

State has (1) exempted certain student groups from the nondiscrimination policy; and (2) declined to grant Plaintiffs such

an exemption because of Plaintiffs’ religious viewpoint.

II. Free Exercise Clause and Equal Protection

In addition to their free speech and freedom of expressive

association claims, Plaintiffs argue that San Diego State is targeting them because of their religious beliefs in violation of

their right to the free exercise of their religion. Plaintiffs also

ALPHA DELTA v. REED 10001
argue that San Diego State is treating them differently from

other student groups in violation of their right to equal protection under the law. As with their free speech and expression

claims, Plaintiffs raise a triable issue of fact.

Under the Free Exercise Clause of the First Amendment,

the government may not, among other things, “impose special

disabilities on the basis of religious views or religious status.”

Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 877

(1990). However, “the Free Exercise Clause does not inhibit

enforcement of otherwise valid regulations of general application that incidentally burden religious conduct.” Christian

Legal Soc’y, 130 S. Ct. at 2995 n.27 (citing Smith, 494 U.S.

at 878-82).

Under the Equal Protection Clause of the Fourteenth

Amendment, “all persons similarly situated should be treated

alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985). A showing that a group “was singled out for

unequal treatment on the basis of religion” may support a

valid equal protection argument. Truth, 542 F.3d at 650.

[14] San Diego State’s nondiscrimination policy, as written, is a rule of general application. It does not target religious

belief or conduct, and does not “impose special disabilities”

on Plaintiffs or other religious groups. Any burden on religion

is incidental to the general application of the policy. Thus, as

written, San Diego State’s policy violates neither the Free

Exercise Clause nor the Equal Protection Clause. However,

given the evidence that San Diego State may have granted

certain groups exemptions from the policy, there remains a

question whether Plaintiffs have been treated differently

because of their religious status. See Truth, 542 F.3d at 650.

Therefore, we reverse the district court’s grant of summary

judgment in favor of Defendants on Plaintiffs’ free exercise

and equal protection claims. We remand for further findings

as to whether San Diego State in fact exempted other student

10002 ALPHA DELTA v. REED
groups from the nondiscrimination policy, but refused to

exempt Plaintiffs because of their religious beliefs.

CONCLUSION

San Diego State’s nondiscrimination policy, as written, is

viewpoint neutral and reasonable in light of the purpose of the

student organization program. Thus, the university’s policy

does not violate Plaintiffs’ rights of free speech and expressive association. Moreover, the policy does not violate Plaintiffs’ rights to free exercise of religion and equal protection

under the law. But the evidence raises a triable issue of fact

as to whether San Diego State has exempted certain groups

from the policy while not granting such an exemption to

Plaintiffs. We therefore remand to the district court for further

proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND

REMANDED. The parties shall bear their own costs on

appeal. 

RIPPLE, Circuit Judge, concurring:

I concur in the judgment because faithful adherence to the

doctrines of stare decisis and precedent requires me to do so.

I write separately because this case presents an important

issue of First Amendment jurisprudence, which the Supreme

Court explicitly reserved in Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2984 & n.10 (2010). Although this circuit has answered this question in Truth v. Kent School

District, 542 F.3d 634, 645-47 (9th Cir. 2008), it is still an

open question at the national level. Here, the factual ambiguities that prompt this court to remand to the district court may

dilute the focus of the constitutional question, at least momentarily; nevertheless, it may well be that, at some later point,

ALPHA DELTA v. REED 10003
this case will be an appropriate case for further Supreme

Court review.

As the majority points out, this case is not controlled by the

majority opinion in Christian Legal Society; SDSU has not

conditioned official recognition of clubs on an organization’s

adopting an “all-comers” policy. See slip op. at 9985. Rather,

it has required that organizations not discriminate in membership or leadership on specified grounds: “race, sex, color, age,

religion, national origin, marital status, sexual orientation,

physical or mental handicap, ancestry, or medical condition.”

ER 87 ¶ 18. Under this policy, most clubs can limit their

membership to those who share a common purpose or view:

Vegan students, who believe that the institution is not accommodating adequately their dietary preferences, may form a

student group restricted to vegans and, under the policy, gain

official recognition. Clubs whose memberships are defined by

issues involving “protected” categories, however, are required

to welcome into their ranks and leadership those who do not

share the group’s perspective: Homosexual students, who

have suffered discrimination or ostracism, may not both limit

their membership to homosexuals and enjoy the benefits of

official recognition. The policy dilutes the ability of students

who fall into “protected” categories to band together for

mutual support and discourse. 

For many groups, the intrusive burden established by this

requirement can be assuaged partially by defining the group

or membership to include those who, although they do not

share the dominant, immutable characteristic, otherwise sympathize with the group’s views. Most groups dedicated to forwarding the rights of a “protected” group are able to couch

their membership requirements in terms of shared beliefs, as

opposed to shared status. Opponents of violence against

women could limit their membership to all individuals dedicated to eradicating physical, mental or emotional abuse

against female domestic partners. A gay, lesbian and transgender students group could limit their membership to all

10004 ALPHA DELTA v. REED
individuals dedicated to achieving equal political and social

recognition of gay, lesbian and transgender persons. 

Religious students, however, do not have this luxury—their

shared beliefs coincide with their shared status. They cannot

otherwise define themselves and not run afoul of the nondiscrimination policy. See Truth, 542 F.3d at 645 (“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 non-Christians.”).

The Catholic Newman Center cannot restrict its leadership—

those who organize and lead weekly worship services—to

members in good standing of the Catholic Church without

violating the policy. Groups whose main purpose is to engage

in the exercise of religious freedoms do not possess the same

means of accommodating the heavy hand of the State. 

The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices

and discourses that are religiously based. While those who

espouse other causes may control their membership and come

together for mutual support, others, including those exercising

one of our most fundamental liberties—the right to free exercise of one’s religion—cannot, at least on equal terms.

On this basis, I concur in the judgment of the court.

ALPHA DELTA v. REED 10005