SCOTUSblog, which provides extensive, informed coverage of the Supreme Court, has picked the petition for Truth v. Kent as one of the petitions to watch during the Court’s conference this Thursday. Six weeks ago, FIRE filed an amicus brief in support of the Truth petitioners’ request for certiorari.
As Torch readers may remember, Truth involved a public high school denying a religious student organization recognized status because the organization restricted its members to students who endorsed its religious beliefs. The school held that the organization could not discriminate on the basis of religious belief even though the school allowed student groups to discriminate on the basis of any other set of ideological beliefs. Surprisingly, the Ninth Circuit upheld this decision as reasonable and viewpoint neutral, bringing the Ninth Circuit into conflict with other federal circuits.
FIRE has seen an unfortunately high number of schools violate student religious groups’ expressive association rights by preventing them from discriminating on the basis of religious belief. While Truth involved a high school, two Ninth Circuit cases have already applied Truth to the college setting, thus leaving no doubt that Truth will deny both high school and college students in the Ninth Circuit their basic expressive association rights. FIRE thus hopes the Supreme Court will grant certiorari and reject Truth‘s faulty reasoning.
Since FIRE filed its amicus, the school district filed its response to the petitioners, asking the Court to leave Truth intact. In so doing, they claimed that there was no circuit split because the other circuit cases—which correctly came out the other way—involved belief restrictions on voting, rather than general members. This argument is quite weak given the Truth decision did not rely on that distinction. Instead, the Truth decision claimed that the school had a pedagogical right to impose conduct-based rules on student groups in order to instill the value of non-discrimination. Such an analysis applies equally to voting and general members. In its First Amendment analysis, the Truth court did not even inquire into whether, in contrast to voting members, general members do not affect a group’s message formation or expression. The school district’s attempt to make that a distinguishing issue thus makes little sense.
The district also argued that the other circuit cases occurred at the college level, and thus merited a different analysis because high schools are allowed to be more paternalistic than colleges. Given the Ninth Circuit has already applied Truth to the college level, this distinction does not justify concluding there is no circuit split. Furthermore, the degree to which legal analysis in the high school setting can apply to college campuses, and vice versa, itself presents a federal circuit split. Thus, this point does not provide the federal circuit consensus that the district claims.
The district also failed to address the important issue of viewpoint discrimination beyond asserting that it did not occur on the part of the district. The school district’s policy prevents student groups from discriminating on the basis of only one belief system: religion. Since the Supreme Court stated unequivocally in Rosenberger that religion qualifies as a viewpoint, it is hard to see how such a policy could be viewpoint neutral, and so perhaps it is unsurprising that the district had little to say on this point.
The district also separately urged the Supreme Court not to address the constitutional claim because the Truth decision followed a previous Ninth Circuit case that made an exception to the Supreme Court’s general views on when municipalities can be sued for violating constitutional rights. Normally, in order to sue a municipality, an official policy or custom has to be at issue, but the Ninth Circuit had previously held that this rule does not apply when the plaintiff only seeks prospective relief (i.e., when the plaintiff seeks to force a government entity to stop violating their rights). Whatever the merits of that decision, it would be a shame if it precluded the constitutional claim from being addressed, especially since an official policy—the district’s non-discrimination policy—was clearly the crux of the Truth case.
We will keep readers updated as the Supreme Court decides whether to take the case.