Truth v. Kent School District
In Truth v. Kent School District, 2008 U.S. App. LEXIS 8933 (9th Cir. Wash., Apr. 25, 2008), the Court of Appeals for the Ninth Circuit considered school clubs and the Establishment Clause. When two students attempted to form a Bible club called "Truth" at Kentridge High School, the school denied them permission on the grounds that the club would exclude students because it required that members possess a true desire to grow in a relationship with Jesus Christ. Many of the thirty clubs at Kentridge were just as exclusive as the proposed Bible club. For example, the Men's Honor Club and Girl's Honor Club obviously had gender exclusive membership, although gender discrimination is allowed in public school by 20 U.S.C. § 1681(a)(6) (providing that gender discrimination is allowed with regard to certain social fraternities and sororities and volunteer youth organizations that have traditionally been limited to one sex).
The Court held that, "the District did not violate the Act or Truth's First Amendment rights by applying its non-discrimination policy to require Truth to remove its general membership provision."
The Court held that the First Amendment may apply where a school denies recognition to a student club based on its membership criteria. When students seek to associate as a school-sponsored group, with access to school funds, additional access to the school's property and facilities, and special rights to post materials around the school, Courts evaluate the a school district's denial of official recognition as a restriction on a "limited public forum." See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) (applying limited public forum analysis to religious group's request for student activities funds); see also Prince, 303 F.3d at 1091 (holding that a school "created a limited public forum").
The limited public forum framework "has been the source of much confusion" and the precise contours of the term "have not always been clear." Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (internal quotations and citation omitted). The Supreme Court first addressed the concept, indirectly, in Widmar. The Court recognized that, although the state is not required to open certain fora to public discourse, once it elects to do so, it "assume[s] an obligation to justify its discriminations and exclusions under applicable constitutional norms." Widmar, 454 U.S. at 267-68. Two years later, in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 44-45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Supreme Court clarified that there are three categories of government-run fora. "At one end of the spectrum are streets and parks which have immemorially been held in trust for the use of the public." Id. at 45 (internal quotations omitted). On the opposite end of the spectrum are those government properties that have not been traditionally considered open to the public. Id. at 46. Finally, falling somewhere in between are limited public fora, which "consist[ ] of public property which the state has opened for use by the public as a place for expressive activity." Id. at 45.