Speech and Expression

Speech in College

Healy v. James (1972)

408 U.S. 169 (1972)

Vote: 9-0
Decision: Reversed
Majority: Powell, joined by Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Rehnquist

MR. JUSTICE POWELL delivered the opinion of the Court.

This case, arising out of a denial by a state college of official recognition to a group of students who desired to form a local chapter of Students for a Democratic Society (SDS), presents this Court with questions requiring the application of well established First Amendment principles …

We mention briefly at the outset the setting in 1969-1970. A climate of unrest prevailed on many college campuses in this country. There had been widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson. Some colleges had been shut down altogether, while, at others, files were looted and manuscripts destroyed. SDS chapters on some of those campuses had been a catalytic force during this period. Although the causes of campus disruption were many and complex, one of the prime consequences of such activities was the denial of the lawful exercise of First Amendment rights to the majority of students by the few. Indeed, many of the most cherished characteristics long associated with institutions of higher learning appeared to be endangered. Fortunately, with the passage of time, a calmer atmosphere and greater maturity now pervade our campuses. Yet it was in this climate of earlier unrest that this case arose.

Petitioners are students attending Central Connecticut State College (CCSC), a state-supported institution of higher learning. In September, 1969, they undertook to organize what they then referred to as a “local chapter” of SDS. Pursuant to procedures established by the College, petitioners filed a request for official recognition as a campus organization with the Student Affairs Committee, … The Committee, while satisfied that the statement of purposes was clear and unobjectionable on its face, exhibited concern over the relationship between the proposed local group and the National SDS organization. In response to inquiries, representatives of the proposed organization stated that they would not affiliate with any national organization and that their group would remain “completely independent.”

… By a vote of six to two, the Committee ultimately approved the application and recommended to the President of the College, Dr. James, that the organization be accorded official recognition …

Several days later, the President rejected the Committee’s recommendation and issued a statement indicating that petitioners’ organization was not to be accorded the benefits of official campus recognition … He found that the organization’s philosophy was antithetical to the school’s policies, and that the group’s independence was doubtful. He concluded that approval should not be granted to any group that “openly repudiates” the College’s dedication to academic freedom.

Denial of official recognition posed serious problems for the organization’s existence and growth. Its members were deprived of the opportunity to place announcements regarding meetings, rallies, or other activities in the student newspaper; they were precluded from using various campus bulletin boards; and — most importantly — nonrecognition barred them from using campus facilities for holding meetings …

Their efforts to gain recognition having proved ultimately unsuccessful and having been made to feel the burden of nonrecognition, petitioners resorted to the courts. They filed a suit in the United States District Court for the District of Connecticut, seeking declaratory and injunctive relief against the President of the College, other administrators, and the State Board of Trustees. Petitioners’ primary complaint centered on the denial of First Amendment rights of expression and association arising from denial of campus recognition … the judge ruled that petitioners had been denied procedural due process because the President had based his decision on conclusions regarding the applicant’s affiliation which were outside the record before him …

Upon reviewing the hearing transcript and exhibits, the President reaffirmed his prior decision to deny petitioners recognition as a campus organization …

After the President’s second statement issued, the case then returned to the District Court, where it was ordered dismissed …

Petitioners appealed to the Court of Appeals for the Second Circuit where, by a two-to-one vote, the District Court’s judgment was affirmed … This Court granted certiorari and, for the reasons that follow, we conclude that the judgments of the courts below must be reversed, and the case remanded for reconsideration.

At the outset, we note that state colleges and universities are not enclave immune from the sweep of the First Amendment.

… And, where state-operated educational institutions are involved, this Court has long recognized “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large …

… Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition. Baird v. State Bar of AZ, (1971) [other citations omitted]. There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purpose.

… Moreover, the organization’s ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, faculty members, and other students. Such impediments cannot be viewed as insubstantial.

… The opinions below also assumed that petitioners had the burden of showing entitlement to recognition by the College. While petitioners have not challenged the procedural requirement that they file an application in conformity with the rules of the College, they do question the view of the courts below that final rejection could rest on their failure to convince the administration that their organization was unaffiliated with the National SDS … But, apart from any particular issue, once petitioners had filed an application in conformity with the requirements, the burden was upon the College administration to justify its decision of rejection. Law Students Civil Rights Research Council v. Wadmond, (1971) [other citations omitted]. It is to be remembered that the effect of the College’s denial of recognition was a form of prior restraint, denying to petitioners’ organization the range of associational activities described above. While a college has a legitimate interest in preventing disruption on the campus, which, under circumstances requiring the safeguarding of that interest, may justify such restraint, a “heavy burden” rests on the college to demonstrate the appropriateness of that action …

These fundamental errors — discounting the existence of a cognizable First Amendment interest and misplacing the burden of proof — require that the judgments below be reversed. But we are unable to conclude that no basis exists upon which nonrecognition might be appropriate. Indeed, based on a reasonable reading of the ambiguous facts of this case, there appears to be at least one potentially acceptable ground for a denial of recognition. Because of this ambiguous state of the record, we conclude that the case should be remanded, and, in an effort to provide guidance to the lower courts upon reconsideration, it is appropriate to discuss the several bases of President James’ decision. Four possible justifications for nonrecognition, all closely related, might be derived from the record and his statements. Three of those grounds are inadequate to substantiate his decision: a fourth, however, has merit.

… Although this precise issue has not come before the Court heretofore, the Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen’s association with an unpopular organization … In these cases, it has been established that “guilt by association alone, without [establishing] that an individual’s association poses the threat feared by the Government,” is an impermissible basis upon which to deny First Amendment rights. US v. Robel, (1967). The government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims.

… Not only did petitioners proclaim their complete independence from this organization, but they also indicated that they shared only some of the beliefs its leaders have expressed. On this record, it is clear that the relationship was not an adequate ground for the denial of recognition …

Having concluded that petitioners were affiliated with, or at least retained an affinity for, National SDS, President James attributed what he believed to be the philosophy of that organization to the local group …

… The mere disagreement of the President with the group’s philosophy affords no reason to deny it recognition.

As the litigation progressed in the District Court, a third rationale for President James’ decision … began to emerge … that he based rejection on a conclusion that this particular group would be a “disruptive influence at CCSC.” …

… The “Student Bill of Rights” at CCSC, upon which great emphasis was placed by the President, draws precisely this distinction between advocacy and action. It purports to impose no limitations on the right of college student organizations “to examine and discuss all questions of interest to them.” (Emphasis supplied.) But it also states that students have no right (1) “to deprive others of the opportunity to speak or be heard,” (2) “to invade the privacy of others,” (3) “to damage the property of others,” (4) “to disrupt the regular and essential operation of the college,” or (5) “to interfere with the rights of others.” The line between permissible speech and impermissible conduct tracks the constitutional requirement, and if there were an evidential basis to support the conclusion that CCSC-SDS posed a substantial threat of material disruption in violation of that command, the President’s decision should be affirmed.

The record, however, offers no substantial basis for that conclusion …

These same references in the record to the group’s equivocation regarding how it might respond to “issues of violence” and whether it could ever “envision … interrupting a class” suggest a fourth possible reason why recognition might have been denied to these petitioners. These remarks might well have been read as announcing petitioners’ unwillingness to be bound by reasonable school rules governing conduct … The regulation, carefully differentiating between advocacy and action, is a reasonable one, and petitioners have not questioned it directly. Yet their statements raise considerable question whether they intend to abide by the prohibitions contained therein.

… Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related activities must be respected. A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students’ associational rights …

We think the above discussion establishes the appropriate framework for consideration of petitioners’ request for campus recognition. Because respondents failed to accord due recognition to First Amendment principles, the judgments below approving respondents’ denial of recognition must be reversed. Since we cannot conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations, we order the case remanded for reconsideration. We note, in so holding, that the wide latitude accorded by the Constitution to the freedoms of expression and association is not without its costs in terms of the risk to the maintenance of civility and an ordered society. Indeed, this latitude often has resulted, on the campus and elsewhere, in the infringement of the rights of others.

Though we deplore the tendency of some to abuse the very constitutional privileges they invoke, and although the infringement of rights of others certainly should not be tolerated, we reaffirm this Court’s dedication to the principles of the Bill of Rights upon which our vigorous and free society is founded.

Reversed and remanded.

Papish v. Board of Curators (1973)

410 U.S. 667 (1973)

Vote: 6-3
Decision: Reversed
Majority: Douglas, Brennan, Stewart, White, Marshall, Powell
Dissent: Rehnquist, joined by Burger, Blackmun

Per Curiam

Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper “containing forms of indecent speech” in violation of a bylaw of the Board of Curators … The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover, the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: ” … With Liberty and Justice for All.” Secondly, the issue contained an article entitled “M___f___ Acquitted,” which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as “Up Against the Wall, M___f___.”

Following a hearing, the Student Conduct Committee found that petitioner had violated … the General Standards of Student Conduct, which requires students “to observe generally accepted standards of conduct,” and specifically prohibits “indecent conduct or speech.” Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester …

After exhausting her administrative review alternatives within the University, petitioner brought an action for declaratory and injunctive relief … She claimed that her expulsion was improperly premised on activities protected by the First Amendment. The District Court denied relief … and the Court of Appeals affirmed, one judge dissenting … Rehearing en banc was denied by an equally divided vote of all the judges in the Eighth Circuit.

… This case was decided several days before we handed down Healy v. James, 408 U. S. 169 (1972), in which, while recognizing a state university’s undoubted prerogative to enforce reasonable rules governing student conduct, we reaffirmed that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Tinker v. Des Moines Independent School Dist., (1969). We think Healy makes it clear that the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of “conventions of decency.” Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected. Kois v. Wisconsin, (1972) [other citations omitted].

Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University’s action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, the judgments of the courts below must be reversed. Accordingly, the petition for a writ of certiorari is granted, the case is remanded to the District Court, and that court is instructed to order the University to restore to petitioner any course credits she earned for the semester in question and, unless she is barred from reinstatement for valid academic reasons, to reinstate her as a student in the graduate program.

Reversed and remanded.

Rosenberger v. Rector and Visitors of the University of Virginia (1995)

515 U.S. 819 (1995)

Vote: 5-4
Decision: Reversed
Majority: Kennedy, joined by Rehnquist, O’Connor, Scalia, Kennedy, Thomas
Dissent: Souter, joined by Ginsburg, Breyer, Stevens

JUSTICE KENNEDY delivered the opinion of the Court.

The University of Virginia, an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments, authorizes the payment of outside contractors for the printing costs of a variety of student publications. It withheld any authorization for payments on behalf of petitioners for the sole reason that their student paper “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.” That the paper did promote or manifest views within the defined exclusion seems plain enough. The challenge is to the University’s regulation and its denial of authorization, the case raising issues under the Speech and Establishment Clauses of the First Amendment.

… Before a student group is eligible to submit bills from its outside contractors for payment by the fund described below, it must become a “Contracted Independent Organization” (CIO). CIO status is available to any group the majority of whose members are students, whose managing officers are full-time students, and that complies with certain procedural requirements … A CIO must file its constitution with the University; must pledge not to discriminate in its membership; and must include in dealings with third parties and in all written materials a disclaimer, stating that the CIO is independent of the University and that the University is not responsible for the CIO … CIO’s enjoy access to University facilities, including meeting rooms and computer terminals.

A standard agreement signed between each CIO and the University provides that the benefits and opportunities afforded to CIO’s “should not be misinterpreted as meaning that those organizations are part of or controlled by the University, that the University is responsible for the organizations’ contracts or other acts or omissions, or that the University approves of the organizations’ goals or activities.”

All CIO’s may exist and operate at the University, but some are also entitled to apply for funds from the Student Activities Fund (SAF). Established and governed by University Guidelines, the purpose of the SAF is to support a broad range of extracurricular student activities … The Guidelines require that it be administered “in a manner consistent with the educational purpose of the University as well as with state and federal law.” … The Student Council, elected by the students, has the initial authority to disburse the funds, but its actions are subject to review by a faculty body chaired by a designee of the Vice President for Student Affairs …

… The student activities that are excluded from SAF support are religious activities, philanthropic contributions and activities, political activities, activities that would jeopardize the University’s tax-exempt status, those which involve payment of honoraria or similar fees, or social entertainment or related expenses …

Petitioners’ organization, Wide Awake Productions (WAP) … Formed by petitioner Ronald Rosenberger and other undergraduates in 1990, WAP was established “[t]o publish a magazine of philosophical and religious expression,” “[t]o facilitate discussion which fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints,” and “[t]o provide a unifying focus for Christians of multicultural backgrounds.” … WAP publishes Wide Awake: A Christian Perspective at the University of Virginia. The paper’s Christian viewpoint was evident from the first issue, in which its editors wrote that the journal “offers a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia.” …

WAP had acquired CIO status soon after it was organized.

This is an important consideration in this case, for had it been a “religious organization,” WAP would not have been accorded CIO status … At no stage in this controversy has the University contended that WAP is such an organization.

A few months after being given CIO status, WAP requested the SAF to pay its printer $5,862 for the costs of printing its newspaper. The Appropriations Committee of the Student Council denied WAP’s request on the ground that Wide Awake was a “religious activity” within the meaning of the Guidelines …

Having no further recourse within the University structure, WAP, Wide Awake, and three of its editors and members filed suit in the United States District Court for the Western District of Virginia, challenging the SAF’s action … They alleged that refusal to authorize payment of the printing costs of the publication, solely on the basis of its religious editorial viewpoint, violated their rights to freedom of speech and press, to the free exercise of religion, and to equal protection of the law …

On cross-motions for summary judgment, the District Court ruled for the University, holding that denial of SAF support was not an impermissible content or viewpoint discrimination against petitioners’ speech, and that the University’s Establishment Clause concern over its “religious activities” was a sufficient justification for denying payment to third-party contractors …

The United States Court of Appeals for the Fourth Circuit, in disagreement with the District Court, held that the Guidelines did discriminate on the basis of content … The Court of Appeals affirmed the judgment of the District Court nonetheless, concluding that the discrimination by the University was justified by the “compelling interest in maintaining strict separation of church and state.” … We granted certiorari.

… 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. Cornelius v. NAACP Legal Defense Fund, (1985) [other citations omitted]. Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not “reasonable in light of the purpose served by the forum,” Cornelius, supra [other citations omitted].Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations. Perry Ed Assn. v. Perry Local Educators Assn., (1983).

… We conclude, nonetheless, that here, as in Lamb’s Chape. V. Center Moriches Union Free School Dist., (1993), viewpoint discrimination is the proper way to interpret the University’s objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications.

The dissent’s assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas …

… The distinction between the University’s own favored message and the private speech of students is evident in the case before us. The University itself has taken steps to ensure the distinction in the agreement each CIO must sign … Having offered to pay the third-party contractors on behalf of private speakers who convey their own messages, the University may not silence the expression of selected viewpoints.

The University urges that, from a constitutional standpoint, funding of speech differs from provision of access to facilities because money is scarce and physical facilities are not. Beyond the fact that in any given case this proposition might not be true as an empirical matter, the underlying premise that the University could discriminate based on viewpoint if demand for space exceeded its availability is wrong as well. The government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity …

… Based on the principles we have discussed, we hold that the regulation invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech guaranteed by the First Amendment …

… The neutrality commanded of the State by the separate Clauses of the First Amendment was compromised by the University’s course of action. The viewpoint discrimination inherent in the University’s regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.

The judgment of the Court of Appeals must be, and is, reversed.

It is so ordered.

Board of Regents of the University of Wisconsin System v. Southworth (2000)

529 U.S. 217 (2000)

Vote: 9-0
Decision: Reversed
Majority: Kennedy, joined by Rehnquist, Stevens, O’Connor, Scalia, Souter, Thomas, Ginsburg, Breyer


For the second time in recent years we consider constitutional questions arising from a program designed to facilitate extracurricular student speech at a public university. Respondents are a group of students at the University of Wisconsin. They brought a First Amendment challenge to a mandatory student activity fee imposed by petitioner Board of Regents of the University of Wisconsin and used in part by the University to support student organizations engaging in political or ideological speech. Respondents object to the speech and expression of some of the student organizations. Relying upon our precedents which protect members of unions and bar associations from being required to pay fees used for speech the members find objectionable, both the District Court and the Court of Appeals invalidated the University’s student fee program. The University contends that its mandatory student activity fee and the speech which it supports are appropriate to further its educational mission.

We reverse. The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral. We do not sustain, however, the student referendum mechanism of the University’s program, which appears to permit the exaction of fees in violation of the viewpoint neutrality principle. As to that aspect of the program, we remand for further proceedings.

It seems that since its founding the University has required full-time students enrolled at its Madison campus to pay a nonrefundable activity fee … For the 19951996 academic year, when this suit was commenced, the activity fee amounted to $331.50 per year. The fee is segregated from the University’s tuition charge. Once collected, the activity fees are deposited by the University into the accounts of the State of Wisconsin … The fees are drawn upon by the University to support various campus services and extracurricular student activities.

The allocable portion of the fee supports extracurricular endeavors pursued by the University’s registered student organizations or RSO’s. To qualify for RSO status students must organize as a not-for-profit group, limit membership primarily to students, and agree to undertake activities related to student life on campus.

RSO’s may obtain a portion of the allocable fees in one of three ways. Most do so by seeking funding from the Student Government Activity Fund (SGAF), administered by the ASM [Associated Students of Madison] … an RSO can apply for funding from the General Student Services Fund (GSSF), administered through the ASM’s finance committee …

A student referendum provides a third means for an RSO to obtain funding … While the record is sparse on this feature of the University’s program, the parties inform us that the student body can vote either to approve or to disapprove an assessment for a particular RSO.

With respect to [the first two methods], the ASM or its finance committee makes the initial funding decisions … Approval appears pro forma … the student government “voluntarily views the referendum as binding.” …

The University’s policy establishes purposes for which fees may not be expended …

The University’s Student Organization Handbook has guidelines for regulating the conduct and activities of RSO’s. In addition to obligating RSO’s to adhere to the fee program’s rules and regulations, the guidelines establish procedures authorizing any student to complain to the University that an RSO is in noncompliance. An extensive investigative process is in place to evaluate and remedy violations. The University’s policy includes a range of sanctions for noncompliance, including probation, suspension, or termination of RSO status.

In March 1996, respondents, each of whom attended or still attend the University’s Madison campus, filed suit … that imposition of the segregated fee violated their rights of free speech, free association, and free exercise under the First Amendment. They contended the University must grant them the choice not to fund those RSO’s that engage in political and ideological expression offensive to their personal beliefs.

It is inevitable that government will adopt and pursue programs and policies within its constitutional powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens. The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies. Rust v. Sullivan, (1991) [other citations omitted]. The case we decide here, however, does not raise the issue of the government’s right, or, to be more specific, the state-controlled University’s right, to use its own funds to advance a particular message. The University’s whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors.

The case we decide here, however, does not raise the issue of the government’s right, or, to be more specific, the state-controlled University’s right, to use its own funds to advance a particular message. The University’s whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors … This is true even though the student activities fund is not a public forum in the traditional sense of the term and despite the circumstance that those cases most often involve a demand for access, not a claim to be exempt from supporting speech.

… If the University conditions the opportunity to receive a college education, an opportunity comparable in importance to joining a labor union or bar association, on an agreement to support objectionable, extracurricular expression by other students, the rights acknowledged … become implicated. It infringes on the speech and beliefs of the individual to be required, by this mandatory student activity fee program, to pay subsidies for the objectionable speech of others without any recognition of the State’s corresponding duty to him or her. Yet recognition must be given as well to the important and substantial purposes of the University, which seeks to facilitate a wide range of speech …

Just as the vast extent of permitted expression makes the test of germane speech inappropriate for intervention, so too does it underscore the high potential for intrusion on the First Amendment rights of the objecting students. It is all but inevitable that the fees will result in subsidies to speech which some students find objectionable and offensive to their personal beliefs …

The University may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.

The University must provide some protection to its students’ First Amendment interests, however. The proper measure, and the principal standard of protection for objecting students, we conclude, is the requirement of viewpoint neutrality in the allocation of funding support. Rosenberger v. Rector and Visitors of U of VA., (1995). When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others …

… The judgment of the Court of Appeals is reversed …

Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez (2010)

561 U.S. 661 (2010)

Vote: 5-4
Decision: Affirmed
Majority: Ginsburg, joined by Stevens, Kennedy, Breyer, Sotomayor
Concurrence: Stevens
Concurrence: Kennedy
Dissent: Alito, joined by Roberts, Scalia, Thomas

Justice Ginsburg delivered the opinion of the Court.

In a series of decisions, this Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school-sponsored forums because of the groups’ viewpoints. This case concerns a novel question regarding student activities at public universities: May a public law school condition its official recognition of a student group–and the attendant use of school funds and facilities–on the organization’s agreement to open eligibility for membership and leadership to all students?

In the view of petitioner Christian Legal Society (CLS), an accept-all-comers policy impairs its First Amendment rights to free speech, expressive association, and free exercise of religion by prompting it, on pain of relinquishing the advantages of recognition, to accept members who do not share the organization’s core beliefs about religion and sexual orientation. From the perspective of respondent Hastings College of the Law (Hastings or the Law School), CLS seeks special dispensation from an across-the-board open-access requirement designed to further the reasonable educational purposes underpinning the school’s student-organization program …

… Through its “Registered Student Organization” (RSO) program, Hastings extends official recognition to student groups. Several benefits attend this school-approved status.

… Critical here, all RSOs must undertake to comply with Hastings’ “Policies and Regulations Applying to College Activities, Organizations and Students.”

… Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers: School-approved groups must “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.” …

… CLS chapters must adopt bylaws that, inter alia, require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles. Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS thus interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct.” CLS also excludes students who hold religious convictions different from those in the Statement of Faith.

On September 17, 2004, CLS submitted to Hastings an application for RSO status, accompanied by all required documents, including the set of bylaws mandated by CLS-National. Several days later, the Law School rejected the application; CLS’s bylaws, Hastings explained, did not comply with the Nondiscrimination Policy because CLS barred students based on religion and sexual orientation.

… If CLS instead chose to operate outside the RSO program, Hastings stated, the school “would be pleased to provide [CLS] the use of Hastings facilities for its meetings and activities.” CLS would also have access to chalkboards and generally available campus bulletin boards to announce its events …

Refusing to alter its bylaws, CLS did not obtain RSO status. It did, however, operate independently during the 2004-2005 academic year …

On October 22, 2004, CLS filed suit against various Hastings officers and … Its complaint alleged that Hastings’ refusal to grant the organization RSO status violated CLS’s First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. The suit sought injunctive and declaratory relief.

On cross-motions for summary judgment, the U. S. District Court for the Northern District of California ruled in favor of Hastings. The Law School’s all-comers condition on access to a limited public forum, the court held, was both reasonable and viewpoint neutral, and therefore did not violate CLS’s right to free speech.

Nor, in the District Court’s view, did the Law School impermissibly impair CLS’s right to expressive association …

The court also rejected CLS’s Free Exercise Clause argument …

On appeal, the Ninth Circuit affirmed [in a brief opinion]. We granted certiorari and now affirm the Ninth Circuit’s judgment …

In support of the argument that Hastings’ all-comers policy treads on its First Amendment rights to free speech and expressive association, CLS draws on two lines of decisions. First, in a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech. Recognizing a State’s right “to preserve the property under its control for the use to which it is lawfully dedicated,” Cornelius v. NAACP Legal Def. Fund, (1985), the Court has permitted restrictions on access to a limited public forum, like the RSO program here, with this key caveat: Any access barrier must be reasonable and viewpoint neutral.

Second, as evidenced by another set of decisions, this Court has rigorously reviewed laws and regulations that constrain associational freedom. In the context of public accommodations, we have subjected restrictions on that freedom to close scrutiny; such restrictions are permitted only if they serve “compelling state interests” that are “unrelated to the suppression of ideas”–interests that cannot be advanced “through … significantly less restrictive [means].” Roberts v. US Jaycees, (1984).”Freedom of association,” we have recognized, “plainly presupposes a freedom not to associate.” … Insisting that an organization embrace unwelcome members, we have therefore concluded, “directly and immediately affects associational rights.” …

… First, the same considerations that have led us to apply a less restrictive level of scrutiny to speech in limited public forums as compared to other environments, apply with equal force to expressive association occurring in limited public forums. As just noted, speech and expressive-association rights are closely linked … When these intertwined rights arise in exactly the same context, it would be anomalous for a restriction on speech to survive constitutional review under our limited-public-forum test only to be invalidated as an impermissible infringement of expressive association. That result would be all the more anomalous in this case, for CLS suggests that its expressive-association claim plays a part auxiliary to speech’s starring role.

Second, and closely related, the strict scrutiny we have applied in some settings to laws that burden expressive association would, in practical effect, invalidate a defining characteristic of limited public forums–the State may “reserv[e] [them] for certain groups.” Rosenberger v. Rector and Visitors of the University of Virginia, (1995)

An example sharpens the tip of this point: Schools, including Hastings, ordinarily, and without controversy, limit official student-group recognition to organizations comprising only students–even if those groups wish to associate with nonstudents. The same ground rules must govern both speech and association challenges in the limited-public-forum context, lest strict scrutiny trump a public university’s ability to “confin[e] a [speech] forum to the limited and legitimate purposes for which it was created.”

Third, this case fits comfortably within the limited-public-forum category, for CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out …

In diverse contexts, our decisions have distinguished between policies that require action and those that withhold benefits. Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition …

… Our inquiry is shaped by the educational context in which it arises: “First Amendment rights,” we have observed, “must be analyzed in light of the special characteristics of the school environment.” Widmar v. Vincent, (1981).

A college’s commission–and its concomitant license to choose among pedagogical approaches–is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process. Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, (2002).

With appropriate regard for school administrators’ judgment, we review the justifications Hastings offers in defense of its all-comers requirement. First, the open-access policy “ensures that the leadership, educational, and social opportunities afforded by [RSOs] are available to all students.” … RSOs, we count it significant, are eligible for financial assistance drawn from mandatory student-activity fees; the all-comers policy ensures that no Hastings student is forced to fund a group that would reject her as a member.

Second, the all-comers requirement helps Hastings police the written terms of its Nondiscrimination Policy without inquiring into an RSO’s motivation for membership restrictions. To bring the RSO program within CLS’s view of the Constitution’s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status … But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? …

In sum, the several justifications Hastings asserts in support of its all-comers requirement are surely reasonable in light of the RSO forum’s purposes.

The Law School’s policy is all the more creditworthy in view of the “substantial alternative channels that remain open for [CLS-student] communication to take place.”

… Finally, CLS asserts (and the dissent repeats) that the Law School lacks any legitimate interest–let alone one reasonably related to the RSO forum’s purposes–in urging “religious groups not to favor co-religionists for purposes of their religious activities.” CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides. Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.

We next consider whether Hastings’ all-comers policy is viewpoint neutral.

… It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers …

… Finding Hastings’ open-access condition on RSO status reasonable and viewpoint neutral, we reject CLS’ free-speech and expressive-association claims.

… For the foregoing reasons, we affirm the Court of Appeals’ ruling that the all-comers policy is constitutional and remand the case for further proceedings consistent with this opinion.

It is so ordered.


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Civil Rights and Liberties by Rorie Spill Solberg is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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