FIRE Files Amicus Brief Urging Supreme Court to Hear Student Freedom of Association Case

By April 30, 2009

Yesterday, FIRE filed an amicus brief urging the Supreme Court to hear an appeal of Truth v. Kent School District, a decision by the United States Court of Appeals for the Ninth Circuit that fundamentally threatens the freedom of association of student organizations on public college campuses. By filing this friend-of-the-court brief, FIRE hopes to demonstrate to the Court why it should grant the appeal and ultimately overturn the Ninth Circuit’s decision.

In Truth, the Ninth Circuit ruled that Kentridge High School in Washington state did not violate the First Amendment rights of a Christian student group, Truth, by repeatedly denying its applications for official recognition. Kentridge denied the group’s application on the grounds that the group violated the school’s nondiscrimination policies by requiring all voting members and officers to sign a "statement of faith."

By upholding the school’s decision and finding no infringement upon the student group’s freedom of expressive association, the Ninth Circuit’s ruling directly contradicts Supreme Court precedent granting groups the right to choose their membership based on shared beliefs. In Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000), for instance, the Court stated that the "forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints."

Moreover, the Ninth Circuit’s decision directly contradicts a 2006 Seventh Circuit decision, Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), a case for which FIRE filed an amicus brief to the Seventh Circuit. In Walker, the Seventh Circuit held that a public law school’s refusal to recognize a Christian student group because of the group’s membership requirements violated the group’s right to freedom of expressive association. FIRE’s brief asks the Supreme Court to reconcile the federal circuit split that has resulted from the Ninth Circuit’s decision in Truth.

Troublingly, since the Ninth Circuit’s September 2008 ruling in Truth, both the Ninth Circuit and a federal district court have already relied on the case to uphold denials of recognition to religious student groups at the University of California at Hastings Law School and two California State University system schools. These rulings are problematic in that a decision infringing upon the freedom of association in secondary schools is being squarely applied to the university setting in spite of the fact that students on public college and university campuses traditionally enjoy greater First Amendment rights than their high school counterparts. In other words, Truth, apart from its impact in the high school setting, has already caused significant harm on the college campus and threatens to continue to do so. Regrettably, this is nothing new, as FIRE has over the years seen restrictions upon student groups’ freedom of association at schools such as Wright State University, the University of North Carolina-Chapel Hill (twice), Rutgers University, and many more.

It is imperative that the Supreme Court reverse the Truth decision in order to preserve freedom of expressive association both in secondary schools and at colleges and universities. We will have an update on The Torch as soon as the Supreme Court decides whether to grant the appeal.