Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez

with whom

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 654-655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

The Hastings College of the Law, a state institution, permits student organizations to register with the law school *707and severely burdens speech by unregistered groups. Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society (CLS). CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights.

Rejecting this argument, the Court finds that it has been Hastings’ policy for 20 years that all registered organizations must admit any student who wishes to join. Deferring broadly to the law school’s judgment about the permissible limits of student debate, the Court concludes that this “accept-all-comers” policy, ante, at 668, is both viewpoint neutral and consistent with Hastings’ proclaimed policy of fostering a diversity of viewpoints among registered student groups.

The Court’s treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups — groups to which, as Hastings candidly puts it, these institutions “do not wish to . . . lend their name[s].” Brief for Respondent Hastings College of the Law 11; see also id., at 35.

I

The Court provides a misleading portrayal of this case. As related by the Court, (1) Hastings, for the past 20 years, has required any student group seeking registration to admit any student who wishes to join, ante, at 671-672; (2) the ef*708fects of Hastings’ refusal to register CLS have been of questionable importance, see ante, at 690-691; and (3) this case is about CLS’s desire to obtain “a state subsidy,” ante, at 682. I begin by correcting the picture.

A

The Court bases all of its analysis on the proposition that the relevant Hastings’ policy is the so-called accept-all-comers policy. This frees the Court from the difficult task of defending the constitutionality of either the policy that Hastings actually — and repeatedly — invoked when it denied registration, i. e., the school’s written Nondiscrimination Policy, or the policy that Hastings belatedly unveiled when it filed its brief in this Court. Overwhelming evidence, however, shows that Hastings denied CLS’s application pursuant to the Nondiscrimination Policy and that the accept-all-comers policy was nowhere to be found until it was mentioned by a former dean in a deposition taken well after this case began.

The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines, including the belief that the Bible is “the inspired Word of God.” App. 226. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” Id., at 146. The resolution made it clear that “a sexually immoral lifestyle,” in CLS’s view, includes engaging in “acts of sexual conduct outside of God’s design for marriage between one man and one woman.” Ibid. It was shortly after this resolution was passed that *709the Hastings chapter of CLS applied to register with the law school.

Hastings sponsors an active program of “registered student organizations” (RSOs) pursuant to the law school’s avowed responsibility to “ensure an opportunity for the expression of a variety of viewpoints” and promote “the highest standards of. .. freedom of expression,” App. to Pet. for Cert. 82a, 74a. During the 2004-2005 school year, Hastings had more than 60 registered groups, including political groups (e. g., the Hastings Democratic Caucus and the Hastings Republicans), religious groups (e. g., the Hastings Jewish Law Students Association and the Hastings Association of Muslim Law Students), groups that promote social causes (e. g., both pro-choice and pro-life groups), groups organized around racial or ethnic identity (e. g., the Black Law Students Association, the Korean American Law Society, La Raza Law Students Association, and the Middle Eastern Law Students Association), and groups that focus on gender or sexuality (e. g., the Clara Foltz Feminist Association and Students Raising Consciousness at Hastings). See App. 236-245; Brief for Petitioner 3-4.

Not surprisingly many of these registered groups were and are dedicated to expressing a message. For example, Silenced Right, a pro-life group, taught that “all human life from the moment of conception until natural death is sacred and has inherent dignity,” App. 244, while Law Students for Choice aimed to “defend and expand reproductive rights,” id., at 243. The American Constitution Society sought “to counter ... a narrow conservative vision” of “American law,” id., at 236, and the UC Hastings Student Animal Defense Fund aimed “at protecting the lives and advancing the interests of animals through the legal system,” id., at 245.

Groups that are granted registration are entitled to meet on university grounds and to access multiple channels for communicating with students and faculty — including posting messages on designated bulletin boards, sending mass *710e-mails to the student body, distributing material through the Student Information Center, and participating in the annual student organizations fair. App. to Pet. for Cert. 7a, 85a. They may also apply for limited travel funds, id., at 7a, which appear to total about $4,000 to $5,000 per year, App. 217 — or less than $85 per registered group. Most of the funds available to RSOs come from an annual student activity fee that every student must pay. See App. to Pet. for Cert. 89a-93a.

When CLS applied for registration, Judy Hansen Chapman, the Director of Hastings’ Office of Student Services, sent an e-mail to an officer of the chapter informing him that “CLS’s bylaws did not appear to be compliant” with the Hastings Nondiscrimination Policy, App. 228, 277, a written policy that provides in pertinent part that “[t]he University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation,” id., at 220. As far as the record reflects, Ms. Chapman made no mention of an aceept-all-applicants policy.

A few days later, three officers of the chapter met with Ms. Chapman, and she reiterated that the CLS bylaws did not comply with “the religion and sexual orientation provisions of the Nondiscrimination Policy and that they would need to be amended in order for CLS to become a registered student organization.” Id., at 228. About a week later, Hastings sent CLS a letter to the same effect. Id., at 228-229, 293-295. On both of these occasions, it appears that not a word was said about an aecept-all-comers policy.

When CLS refused to change its membership requirements, Hastings denied its request for registration — thus making CLS the only student group whose application for registration has ever been rejected. Brief in Opposition 4.

In October 2004, CLS brought this action under 42 U. S. C. §1983 against the law school’s dean and other school officials, claiming, among other things, that the law school, by *711enacting and enforcing the Nondiscrimination Policy, had violated CLS’s First Amendment right to freedom of speech. App. 78.

In May 2005, Hastings filed an answer to CLS’s first amended complaint and made an admission that is significant for present purposes. In its complaint, CLS had alleged that the Nondiscrimination Policy discriminates against religious groups because it prohibits those groups “from selecting officers and members dedicated to a particular set of religious ideals or beliefs” but “permits political, social and cultural student organizations to select officers and members dedicated to their organization’s ideals and beliefs.” Id., at 79. In response, Hastings admitted that its Nondiscrimination Policy “permits political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” Id., at 93. The Court states that “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of allcomers.” Ante, at 671. But this admission in Hastings’ answer shows that Hastings had not adopted this interpretation when its answer was filed.

Within a few months, however, Hastings’ position changed. In July 2005, Mary Kay Kane, then the dean of the law school, was deposed, and she stated: “It is my view that in order to be a registered student organization you have to allow all of our students to be members and full participants if they want to.” App. 343. In a declaration filed in October 2005, Ms. Chapman provided a more developed explanation, stating: “Hastings interprets the Nondiscrimination Policy as requiring that student organizations wishing to register with Hastings allow any Hastings student to become a member and/or seek a leadership position in the organization.” Id., at 349.

Hastings claims that this accept-all-comers policy has existed since 1990 but points to no evidence that the policy was ever put in writing or brought to the attention of mem*712bers of the law school community prior to the dean’s deposition. Indeed, Hastings has adduced no evidence of the policy’s existence before that date. And while Dean Kane and Ms. Chapman stated, well after this litigation had begun, that Hastings had such a policy, neither they nor any other Hastings official has ever stated in a deposition, affidavit, or declaration when this policy took effect.

Hastings’ effort to portray the accept-all-comers policy as merely an interpretation of the Nondiscrimination Policy runs into obvious difficulties. First, the two policies are simply not the same: The Nondiscrimination Policy proscribes discrimination on a limited number of specified grounds, while the accept-all-comers policy outlaws all selectivity. Second, the Nondiscrimination Policy applies to everything that Hastings does, and the law school does not follow an accept-all-comers policy in activities such as admitting students and hiring faculty.

In an effort to circumvent this problem, the Court writes that “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers.” Ante, at 671 (emphasis added). This puts Hastings in the implausible position of maintaining that the Nondiscrimination Policy means one thing as applied to the RSO program and something quite different as applied to all of Hastings’ other activities. But the Nondiscrimination Policy by its terms applies fully to all components of the law school, “including administration [and] faculty.” App. 220.

Third, the record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that “any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as *713stated in Article 3, Section 1.” App. to Pet. for Cert. 118a (emphasis added). The constitution of the Association of Trial Lawyers of America at Hastings provided that every member must “adhere to the objectives of the Student Chapter as well as the mission of ATLA.” Id., at 110a. A student could become a member of the Vietnamese American Law Society so long as the student did not “exhibit a consistent disregard and lack of respect for the objective of the organization,” which centers on a “celebration] [of] Vietnamese culture.” Id., at 146a-147a. Silenced Right limited voting membership to students who “are committed” to the group’s “mission” of “spreading] the pro-life message.” Id., at 142a-143a. La Raza limited voting membership to “students of Raza background.” App. 192. Since Hastings requires any student group applying for registration to submit a copy of its bylaws, see id., at 249-250, Hastings cannot claim that it was unaware of such provisions. And as noted, CLS was denied registration precisely because Ms. Chapman reviewed its bylaws and found them unacceptable.

We are told that, when CLS pointed out these discrepancies during this litigation, Hastings took action to ensure that student groups were in fact complying with the law school’s newly disclosed accept-all-eomers policy. For example, Hastings asked La Raza to revise its bylaws to allow all students to become voting members. App. to Pet. for Cert. 66a. See also Brief for State of Michigan et al. as Amici Curiae 2, n. 1 (relating anecdotally that Hastings recently notified the Hastings Democrats that “to maintain the Club’s standing as a student organization,” it must “open its membership to all students, irrespective of party affiliation”). These belated remedial efforts suggest, if anything, that Hastings had no aceept-all-comers policy until this litigation was well under way.

Finally, when Hastings filed its brief in this Court, its policy, which had already evolved from a policy prohibiting certain specified forms of discrimination into an accept-all-*714comers policy, underwent yet another transformation. Now, Hastings claims that it does not really have an accept-all-comers policy; it has an aceept-some-comers policy. Hastings’ current policy, we are told, “does not foreclose neutral and generally applicable membership requirements unrelated to ‘status or beliefs.’” Brief for Respondent Hastings College of the Law 5. Hastings’ brief goes on to note with seeming approval that some registered groups have imposed “even conduct requirements.” Ibid. Hastings, however, has not told us which “conduct requirements” are allowed and which are not — although presumably requirements regarding sexual conduct fall into the latter category.

When this case was in the District Court, that court took care to address both the Nondiscrimination Policy and the accept-all-comers policy. See, e. g., App. to Pet. for Cert. 8a-9a, 16a-17a, 21a-24a, 26a, 27a, 32a, 44a, 63a. On appeal, however, a panel of the Ninth Circuit, like the Court today, totally ignored the Nondiscrimination Policy. CLS’s argument in the Ninth Circuit centered on the Nondiscrimination Policy, and CLS argued strenuously, as it had in the District Court, that prior to the former dean’s deposition, numerous groups had been permitted to restrict membership to students who shared the groups’ views.1 Nevertheless, the *715Ninth Circuit disposed of CLS’s appeal with a two-sentence, not-precedential opinion that solely addressed the accept-all-comers policy. Christian Legal Soc. Chapter of Univ. of Cal. v. Kane, 319 Fed. Appx. 645-646 (2009).

Like the majority of this Court, the Ninth Circuit relied on the following Joint Stipulation, which the parties filed in December 2005, well after Dean Kane’s deposition:

“Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of their status or beliefs.” App. 221.

Citing the binding effect of stipulations, the majority sternly rejects what it terms “CLS’s unseemly attempt to escape from the stipulation and shift its target to [the Nondiscrimination Policy].” Ante, at 678.

I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected. What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all-comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. On the contrary, the Joint Stipulation notes that the reason repeatedly given by Hastings at that time was that the CLS bylaws did not comply with the Nondiscrimination Policy. See App. 228-229. Indeed, the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004. In addition, Hastings itself is now attempting to walk away from this stipulation by disclosing that its real policy is an accept-some-comers policy.

*716The majority’s insistence on the binding effect of stipulations contrasts sharply with its failure to recognize the binding effect of a party’s admissions in an answer. See American Title Insurance Co. v. Lacelaw Corp., 861 F. 2d 224, 226 (CA9 1988) (“Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them”); Bakersfield Westar Ambulance, Inc. v. Community First Bank, 123 F. 3d 1243, 1248 (CA9 1997) (quoting Lacelaw, supra). As noted above, Hastings admitted in its answer, which was filed prior to the former dean’s deposition, that at least as of that time, the law school did not follow an accept-all-comers policy and instead allowed “political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” App. 93.

B

The Court also distorts the record with respect to the effect on CLS of Hastings’ decision to deny registration. The Court quotes a letter written by Hastings’ general counsel in which she stated that Hastings “ ‘would be pleased to provide [CLS] the use of Hastings facilities for its meetings and activities.’” Ante, at 673 (quoting App. 294). Later in its opinion, the Court reiterates that “Hastings offered CLS access to school facilities to conduct meetings,” ante, at 690, but the majority does not mention that this offer was subject to important qualifications. As Hastings’ attorney put it in the District Court, Hastings told CLS: “‘Hastings allows community groups to some degree to use its facilities, sometimes on a pay basis, I understand, if they’re available after priority is given to registered organizations.’ We offered that.” App. 442.

The Court also fails to mention what happened when CLS attempted to take advantage of Hastings’ offer. On August 19, 2005, the local CLS president sent an e-mail to Ms. Chapman requesting permission to set up an “advice *717table” on a campus patio on August 23 and 24 so that members of CLS could speak with students at the beginning of the fall semester. Id., at 298. This request — merely to set up a table on a patio — could hardly have interfered with any other use of the law school’s premises or cost the school any money. But although the request was labeled “time sensitive,” ibid., Ms. Chapman did not respond until the dates in question had passed, and she then advised the student that all further inquiries should be made through CLS’s attorney id., at 297-298.

In September 2005, CLS tried again. Through counsel, CLS sought to reserve a room on campus for a guest speaker who was scheduled to appear on a specified date. Id., at 302-303. Noting Ms. Chapman’s tardy response on the prior occasion, the attorney asked to receive a response before the scheduled date, but once again no answer was given until after the date had passed. Id., at 300.

Other statements in the majority opinion make it seem as if the denial of registration did not hurt CLS at all. The Court notes that CLS was able to hold Bible-study meetings and other events. Ante, at 673. And “[although CLS could not take advantage of RSO-specific methods of communication,” the Court states, “the advent of electronic media and social-networking sites reduces the importance of those channels.” Ante, at 690-691.

At the beginning of the 2005 school year, the Hastings CLS group had seven members, App. to Pet. for Cert. 13a, so there can be no suggestion that the group flourished. And since one of CLS’s principal claims is that it was subjected to discrimination based on its viewpoint, the majority’s emphasis on CLS’s ability to endure that discrimination — by using private facilities and means of communication — is quite amazing.

This Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad. We have never *718before taken the view that a little viewpoint discrimination is acceptable. Nor have we taken this approach in other discrimination cases.

C

Finally, I must comment on the majority’s emphasis on funding. According to the majority, CLS is “seeking what is effectively a state subsidy,” ante, at 682, and the question presented in this case centers on the “use of school funds,” ante, at 668. In fact, funding plays a very small role in this case. Most of what CLS sought and was denied — such as permission to set up a table on the law school patio — would have been virtually cost free. If every such activity is regarded as a matter of funding, the First Amendment rights of students at public universities will be at the mercy of the administration. As CLS notes: “[T]o university students, the campus is their world. The right to meet on campus and use campus channels of communication is at least as important to university students as the right to gather on the town square and use local communication forums is to the citizen.” Reply Brief for Petitioner 18.

II

To appreciate how far the Court has strayed, it is instructive to compare this case with Healy v. James, 408 U. S. 169 (1972), our only First Amendment precedent involving a public college’s refusal to recognize a student group. The group in Healy was a local chapter of the Students for a Democratic Society (SDS). When the students who applied for recognition of the chapter were asked by a college committee whether they would “ 'respond to issues of violence as other S.D.S. chapters have,’ ” their answer was that their “ 'action would have to be dependent upon each issue.’ ” Id., at 172-173. They similarly refused to provide a definitive answer when asked whether they would be willing to “use any means possible” to achieve their aims. Id., at 173. The president of the college refused to allow the group to be rec*719ognized, concluding that the philosophy of the SDS was “antithetical to the school’s policies” and that it was doubtful that the local chapter was independent of the national organization, the “ 'published aims and philosophy’ ” of which included “ 'disruption and violence.’ ” Id., at 174-175, and n. 4.

The effects of nonrecognition in Healy were largely the same as those present here. The SDS was denied the use of campus facilities, as well as access to the customary means used for communication among the members of the college community. Id., at 176, 181-182.

The lower federal courts held that the First Amendment rights of the SDS chapter had not been violated, and when the case reached this Court, the college, much like today’s majority, sought to minimize the effects of nonrecognition, arguing that the SDS members “still may meet as a group off campus, that they still may distribute written material off campus, and that they still may meet together informally on campus ... as individuals.” . Id., at 182-183.

This Court took a different view. The Court held that the denial of recognition substantially burdened the students’ right to freedom of association. After observing that “[t]he primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings. and other appropriate purposes,” id., at 181, the Court continued:

“Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization’s ability to participate in the intellectual give and take of campüs 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 stu*720dents. Such impediments cannot be viewed as insubstantial.” Id., at 181-182 (footnote omitted).

It is striking that all of these same burdens are now borne by CLS. CLS is prevented from using campus facilities— unless at some future time Hastings chooses to provide a timely response to a CLS request and allow the group, as a favor or perhaps in exchange for a fee, to set up a table on the patio or to use a room that would otherwise be unoccupied. And CLS, like the SDS in Healy, has been cut off from “the customary media for communicating with the administration, faculty members, and other students.” Id., at 181-182.

It is also telling that the Healy Court, unlike today’s majority, refused to defer to the college president’s judgment regarding the compatibility of “sound educational policy” and free speech rights. The same deference arguments that the majority now accepts were made in defense of the college president’s decision to deny recognition in Healy. Respondents in that case emphasized that the college president, not the courts, had the responsibility of administering the institution and that the courts should allow him “ Vide discretion ... in determining what actions are most compatible with its educational objectives.’ ” Brief for Respondents in Healy v. James, O. T. 1971, No. 71-452, pp. 7-8. A supporting amicus contended that college officials “must be allowed a very broad discretion in formulating and implementing policies.” Brief for Board of Trustees, California State Colleges 6. Another argued that universities should be permitted to impose restrictions on speech that would not be tolerated elsewhere. Brief for American Association of Presidents of Independent Colleges and Universities 11-12.

The Healy Court would have none of this. Unlike the Court today, the Healy Court emphatically rejected the proposition that “First Amendment protections should apply with less force on college campuses than in the community at large.” 408 U. S., at 180. And on one key question after *721another — whether the local SDS chapter was independent of the national organization, whether the group posed a substantial threat of material disruption, and whether the students’ responses to the committee’s questions about violence and disruption signified a willingness to engage in such activities — the Court drew its own conclusions, which differed from the college president’s.

The Healy Court was true to the principle that when it comes to the interpretation and application of the right to free speech, we exercise our own independent judgment. We do not defer to Congress on such matters, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 129 (1989), and there is no reason why we should bow to university administrators.

In the end, I see only two possible distinctions between Healy and the present case. The first is that Healy did not involve any funding, but as I have noted, funding plays only a small part in this case. And if Healy would otherwise prevent Hastings from refusing to register CLS, I see no good reason why the potential availability of funding should enable Hastings to deny all of the other rights that go with registration.

This leaves just one way of distinguishing Healy: the identity of the student group. In Healy, the Court warned that the college president’s views regarding the philosophy of the SDS could not “justify the denial of First Amendment rights.” 408 U. S., at 187. Here, too, disapproval of CLS cannot justify Hastings’ actions.2

*722III

The Court pays little attention to Healy and instead focuses solely on the question whether Hastings’ registration policy represents a permissible regulation in a limited public forum. While I think that Healy is largely controlling, I am content to address the constitutionality of Hastings’ actions under our limited public forum cases, which lead to exactly the same conclusion.

In this case, the forum consists of the RSO program. Once a public university opens a limited public forum, it “must respect the lawful boundaries it has itself set.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). The university “may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum.’ ” Ibid, (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985)). And the university must maintain strict viewpoint neutrality. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 234 (2000); Rosenberger, supra, at 829.

This requirement of viewpoint neutrality extends to the expression of religious viewpoints. In an unbroken line of decisions analyzing private religious speech in limited public forums, we have made it perfectly clear that “[r]eligion is [a] viewpoint from which ideas are conveyed.” Good News Club v. Milford Central School, 533 U. S. 98, 112, and n. 4 (2001). See Rosenberger, supra, at 831; Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 393-394 (1993); Widmar v. Vincent, 454 U. S. 263, 277 (1981).

We have applied this analysis in cases in which student speech was restricted because of the speaker’s religious viewpoint, and we have consistently concluded that such restrictions constitute viewpoint discrimination. E. g., Rosenberger, supra, at 845-846; Widmar, supra, at 267, n. 5, 269, 277; see also Good News Club, supra, at 106-107, 109-110; *723Lamb’s Chapel, supra, at 392-393, 394. We have also stressed that the rules applicable in a limited public forum are particularly important in the university setting, where “the State acts against a background of tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” Rosenberger, supra, at 835.

IV

Analyzed under this framework, Hastings’ refusal to register CLS pursuant to its Nondiscrimination Policy plainly fails.3 As previously noted, when Hastings refused to register CLS, it claimed that the CLS bylaws impermissibly discriminated on the basis of religion and sexual orientation. *724As interpreted by Hastings and applied to CLS, both of these grounds constituted viewpoint discrimination.

Religion. The First Amendment protects the right of “ ‘expressive association’ ” — that is, the “right to associate for the purpose of speaking.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 68 (2006) (quoting Boy Scouts of America v. Dale, 530 U. S. 640, 644 (2000)). And the Court has recognized that “[t]he 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.” Id., at 648.

With one important exception, the Hastings Nondiscrimination Policy respected that right. As Hastings stated in its answer, the Nondiscrimination Policy “permit[ted] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” App. 93. But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination. “By the very terms of the [Nondiscrimination Policy], the University . . . selected] for disfavored treatment those student [groups] with religious ... viewpoints.” Rosenberger, supra, at 831. It is no wonder that the Court makes no attempt to defend the constitutionality of the Nondiscrimination Policy.

Unlike the Court, Justice Stevens attempts a defense, contending that the Nondiscrimination Policy is viewpoint *725neutral. But his arguments are squarely contrary to established precedent.

Justice Stevens first argues that the Nondiscrimination Policy is viewpoint neutral because it “does not regulate expression or belief at all” but instead regulates conduct. See ante, at 699 (concurring opinion). This Court has held, however, that the particular conduct at issue here constitutes a form of expression that is protected by the First Amendment. It is now well established that the First Amendment shields the right of a group to engage in expressive association by limiting membership to persons whose admission does not significantly interfere with the group’s ability to convey its views. See Dale, supra, at 648; Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984); see also New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988) (acknowledging that an “association might be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion”); Widmar, 454 U. S., at 268-269 (“[T]he First Amendment rights of speech and association extend to the campuses of state universities”). Indeed, the opinion of the Court, which Justice Stevens joins, acknowledges this rule. See ante, at 680.

Justice Stevens also maintains that the Nondiscrimination Policy is viewpoint neutral because it prohibits all groups, both religious and secular, from engaging in religious speech. See ante, at 699-700. This argument is also contrary to established law. In