The Kent School District has a general policy prohibiting student clubs from receiving school recognition or funding if they discriminate on various grounds, including religion. Truth, a religious student club that is open to Christians only, filed a lawsuit in federal court contending that the policy violates its rights under the First Amendment. The district court ruled against the Truth club, and the club appealed to the U.S. Court of Appeals for the Ninth Circuit. In April 2005, we filed an amicus brief in the Ninth Circuit in support of the district court’s decision. We argued that exempting the Truth club from the school’s anti-discrimination policy would amount to giving the club special treatment in violation of the Establishment Clause, and that the school district can permissibly condition the availability of school funding on compliance with a nondiscrimination policy. In August 2007, the Ninth Circuit issued an opinion affirming the district court’s decision. The Ninth Circuit held that the school did not violate the club’s First Amendment rights by prohibiting the Truth club from discriminating based on religion in admitting non-voting members. The Ninth Circuit did not decide whether the club would have a right to obtain school funding if it were to discriminate in selecting voting members and officers only (as opposed to all members); nor did the court decide whether the school would have violated the Establishment Clause if it had granted the club an exemption from the school’s antidiscrimination policy. The Truth club filed a petition for rehearing en banc in September 2007. On April 28, 2008, the Ninth Circuit issued an amended opinion. The opinion still held that denying Truth access based on a nondiscrimination policy is not, in itself, a constitutional violation. But the court ordered that the case be remanded to the district court to determine whether the school discriminated against Truth based on religion by giving other discriminatory clubs, but not Truth, an exemption from the nondiscrimination policy. In May 2008, however, the Truth club filed another petition for rehearing en banc. On September 9, 2008, two of the judges on the Ninth Circuit panel filed a separate concurring opinion, amplifying on the April 28 opinion’s conclusion that conditioning Truth’s receipt of school recognition or funding on a change to its discriminatory membership policy did not infringe its right to engage in speech through "expressive association" (communicating a message through the act of associating). On November 17, 2008, the Ninth Circuit voted to deny Truth’s second petition for rehearing en banc, with two judges writing a dissent from the denial of rehearing. Truth subsequently petitioned the U.S. Supreme Court to review the case, but the Court denied the petition on June 29, 2009.
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