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

April 29, 2009

WASHINGTON, D.C., April 29, 2009Today, the Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief urging the Supreme Court to hear an appeal of Truth v. Kent School District, a decision from the United States Court of Appeals for the Ninth Circuit that poses a grave threat to freedom of association on public college campuses.

“If allowed to stand, the Ninth Circuit’s decision in Truth v. Kent will eliminate the right of student groups to define themselves by the principles they believe in,” said FIRE President Greg Lukianoff. “Federal courts are already citing Truth to deny student religious groups their First Amendment freedom of association on campus. Today we ask the Supreme Court to uphold its longstanding precedent and to ensure that religious students are not second-class citizens at our nation’s public colleges.”

In Truth v. Kent School District, the Ninth Circuit Court of Appeals held that Washington’s Kentridge High School did not violate the First Amendment rights of Truth, a Christian student group, by repeatedly denying the group’s applications for official recognition. The school denied Truth’s application because the group asked all voting members and officers to sign a “statement of faith” that the school contends violates nondiscrimination policies.

By finding that the school had not violated Truth’s First Amendment right to freedom of association, the Ninth Circuit directly contradicted Supreme Court precedent granting groups the right to choose their membership based on shared beliefs. For example, in Boy Scouts of America v. Dale (2000), the Supreme Court held that “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.”

The Ninth Circuit’s holding in Truth also conflicts with a 2006 opinion from the Seventh Circuit, Christian Legal Society v. Walker, in which the Seventh Circuit found that a public law school’s refusal to recognize a Christian student group because of the group’s membership requirements violated the group’s First Amendment right to freedom of expressive association. FIRE’s brief asks the Supreme Court to reconcile this split between the circuits.

The controversy surrounding Truth began in the fall of 2001, when two students at Kentridge High School first applied for official recognition of Truth from the Associated Student Body Council (ASB). Despite consulting with the school’s counsel and principal, the ASB did not take any action on the application for the entire 2001-2002 school year. In January 2003, Truth submitted a second application, stating that while general membership would be open for all Kentridge students, voting membership and leadership positions would only be open to students who shared Truth’s faith-based beliefs. This application was also denied, prompting Truth to file suit in federal district court, alleging a violation of the group’s right to free speech and expressive association, among other claims. A third application submitted in April 2003 was also denied.

The ASB cited the group’s name, mission, and the fact that it was “segregating” as reasons for the rejections, despite the fact that each of the 30 student groups recognized by the school maintain “Membership Criteria” requiring that students be, for example, committed to certain causes (EarthCorps) or even of a specific sex (the Men’s Honor Club and the Girl’s Honor Club). Both the district court and the Ninth Circuit found against Truth, holding that its First Amendment right to freedom of expressive association had not been violated. Troublingly, since the Ninth Circuit’s September 2008 ruling in Truth, both the Ninth Circuit and a federal district court have upheld denials of recognition to religious student groups in separate cases at the University of California at Hastings Law School and two California State University system schools.

“The right to associate with others of like mind is a fundamental American freedom. Under the Ninth Circuit’s deeply flawed interpretation of the First Amendment, the College Democrats could not require that members be Democrats, nor could a campus pro-life group require that members not volunteer for a pro-choice group,” said Will Creeley, FIRE’s Director of Legal and Public Advocacy. “The Ninth Circuit has failed to recognize that student groups have the right to form around shared beliefs, and that failure has already damaged expressive rights at public colleges. Simply put, the Supreme Court must act to save freedom of association on campus.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:
Greg Lukianoff, President, FIRE: 215-717-3473; greg@thefire.org
Will Creeley, Director of Legal and Public Advocacy, FIRE: 215-717-3473; will@thefire.org