Every Nation Campus Ministries v. Achtenberg

Decision Date06 February 2009
Docket NumberCase No. 05CV2186-LAB (AJB).
Citation597 F.Supp.2d 1075
CourtU.S. District Court — Southern District of California
PartiesEVERY NATION CAMPUS MINISTRIES AT SAN DIEGO STATE UNIVERSITY, a student organization at San Diego State University, et al., Plaintiffs, v. ACHTENBERG, et al., Defendants.

Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ, Timothy D. Chandler, Alliance Defense Fund, Folsom, CA, for Plaintiffs.

Susan Westover-Giali, The California State University Office of General Counsel, Long Beach, CA, John David Blair-Loy, ACLU of San Diego and Imperial Counties, San Diego, CA, for Defendants.


LARRY ALAN BURNS, District Judge.

This case raises a question that is endemic to a free society: who prevails when individual or group liberties run up against community values. Plaintiffs here are four Christian student groups at two California State University ("CSU") campuses1 who do not think they should have to comply with CSU's nondiscrimination policy, a string attached to formal recognition on campus. That recognition is important because it comes with benefits, for example allocated funds and easy, affordable access to meeting rooms. For the Plaintiffs, however, with those blessings would come a curse: they would have to be more inclusive than they want to be—and in a way they believe would compromise what they stand for. Specifically, they would have to open their membership to non-Christians and unapologetic homosexuals. If Plaintiffs must comply with CSU's nondiscrimination policy, they argue, they must also give up their First Amendment rights of free speech, freedom of religion, and freedom of expressive association. They ask the Court to enjoin the CSU campuses and certain affiliated individuals (collectively "Defendants") from denying them formal recognition as a student organization because of their refusal to comply with CSU's nondiscrimination policy. They also want that policy declared unconstitutional.

The matter is before the Court on the parties' cross-motions for summary judgment. The American Civil Liberties Union Foundation filed an amicus curiae brief on the First Amendment issues, urging the Court to grant summary judgment for Defendants and to deny summary judgment for Plaintiffs. The Court heard oral argument on the cross-motions on July 25, 2006. Plaintiffs were represented at the hearing by Jeremy D. Tedesco, Esq. and Defendants by Susan Westover, Esq., with David Blair-Loy, Esq. appearing for amicus curiae. The cross-motions were taken under submission at the conclusion of that hearing.

As traced below, the resolution of this matter has been complicated and delayed by the Court's hope that certain cases on appeal in the Ninth Circuit during the pendency of this litigation would shed light on the merits of Plaintiffs' expressive association claim. The Ninth Circuit recently provided the needed beam in the September 9, 2008 concurring opinion amending its April 25, 2008 opinion deciding Truth v. Kent Sch. Dist. 542 F.3d 634 (9th Cir.2008) ("Truth"). For the reasons discussed below, the Court hereby GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiffs' cross-motion.

A. Procedural History
1. Summary

The procedural history of this case is complicated. The short and simple version of that history is that the Court thought it prudent to await the Ninth Circuit's opinion in Truth before ruling on the parties' cross-motions for summary judgment in this case. Although Truth was first decided in August 2007, it was not helpful to this Court until September 2008, when it was superseded a second time to incorporate a two-judge concurrence that answered the very question vexing the Court. That concurrence, which the Court considers binding precedent, compels this Order in the Defendants' favor.

2. Expanded Procedural History

The Court denied Plaintiffs' Motion for Preliminary Injunction on April 5, 2006, finding they failed to carry their burden to show the requisite degree of harm and need to preserve a status quo. (Dkt. No. 31.) On May 2, 2006, the Court granted Defendants' Motion to Dismiss Count V (Due Process) of the First Amended Verified Complaint ("FAC") for failure to state a claim. (Dkt. No. 37.) That latter ruling left four FAC claims at issue: violation of the First Amendment right to expressive association; violation of the First Amendment Free Speech Clause; violation of the First Amendment Free Exercise Clause; and violation of equal protection guaranteed by the Fourteenth Amendment.

On January 22, 2007, while the cross-motions for summary judgment were under submission, the Court informed the parties it would postpone filing an order deciding these motions until the Ninth Circuit issued its ruling in Truth. The resolution of certain constitutional questions raised in that appeal seemed likely to control the result here. (Dkt. No. 89.) The Ninth Circuit issued its Truth ruling, 499 F.3d 999 (9th Cir.2007), on August 24, 2007.2 The Court then solicited supplemental legal briefing from the parties addressing the effect of that opinion on the issues to be decided in this case. Each side submitted a supplemental brief in September 2007, comparing and contrasting the legal issues and factual circumstances of Truth and this case.3 (Dkt. Nos. 96, 97.)

Defendants contended Truth supports their positions, but acknowledged that the decision does not necessarily compel a ruling in their favor. They highlighted "factual differences between how the plaintiffs wanted to include or exclude members" and outlined in a chart some distinguishing facts between the two cases.4 They went no further than to characterize Truth as "an encouraging development, since it certainly tends to favor the University's position on the constitutional claims." (Def.'s Suppl. Brief, 3:16-17). Indeed, Defendants conceded that Truth does not necessarily compel a ruling in the University's favor, even if it shows the Ninth Circuit's leanings toward affirming summary judgments that affirm an educational institution's right to prohibit certain types of discrimination." (Def.'s Suppl. Brief, 5:14-17).

In addition to analyzing the Truth ruling, Defendants again urged the Court to await the Ninth Circuit's decision in Christian Legal Society Chapter of University of California v. Kane, 2006 WL 997217 (N.D.Cal. Apr. 17, 2006) ("Kane") before deciding these cross-motions, as they had in their initial briefing of the cross-motions. They proposed: "If the Truth decision does not offer enough help, perhaps the court and parties should await the outcome of the appeal in the CLS v. Kane case for further guidance."5 (Dkt. No. 96, 5:5-6.) The Court chose not to wait for Kane. Though dispositive guidance from the Ninth Circuit would have been welcome, there was no telling when it would come. The Court therefore went ahead with these motions without a circuit decision in Kane, but informed the parties it would defer ruling until the Ninth Circuit disposed of the then-pending Petition for Rehearing En Banc of the Truth appeal. (Dkt. No. 98.)

On December 13, 2007, Plaintiffs renewed their request for a ruling on the cross-motions. (Dkt. No. 100.) Defendants opposed the motion, arguing the Ninth Circuit still had not ruled on the en banc review request in Truth, and the Kane appeal was set for oral argument in February 2008. (Dkt. No. 103.) Plaintiffs filed a reply informing the Court, among other things, the Ninth Circuit had taken the Kane oral argument off-calendar pending resolution of the Truth matter, with instructions that the clerk place Kane before the next available panel after Truth was decided. The time table for a ruling in both cases and the extent of the additional delay thus became even more uncertain. (Dkt. No. 104.) On February 13, 2008, the Court granted Plaintiffs' motion, conceding that awaiting final decisions from the Ninth Circuit in either Truth or Kane had "become excessive, with no imminent resolution in sight." (Dkt. No. 106, 2.)

On April 25, 2008, the Ninth Circuit denied rehearing in Truth but withdrew its August 24, 2007 opinion and entered a superseding opinion. Truth, 524 F.3d 957 (9th Cir.2008). Although that opinion provided some additional insight into that court's likely treatment of certain issues presented in this case, this Court could discern no dispositive guidance on how to resolve Plaintiffs' expressive association claim. Accordingly, on September 4, 2008, the Court sua sponte reconsidered its decision to lift the stay of these proceedings and informed the parties it would in fact await the guidance of the Ninth Circuit's Kane decision.6 (Dkt. No. 112.)

On September 9, 2008, while Kane remained undecided, the Truth opinion was again superseded by an amendment, this time to incorporate an analytical concurrence by Judge Fisher, joined by Judge Wardlaw, to augment Judge Wallace's April 25, 2008 analysis. Truth, 542 F.3d 634. The concurrence tackled the very issue this Court has found particularly vexing from the start of this case: whether access to the school's recognized student organization forum conditioned on Plaintiffs' elimination of their discriminatory membership policies infringes their right to engage in speech through "expressive association." Not only does the amended and superseding Truth decision clarify certain foundational questions for the Court, it is the majority opinion of the Ninth Circuit panel on that issue because two judges signed it.7 Thus, the Court regards the analytical concurrence by Judge Fisher, joined by Judge Wardlaw, as binding precedent. This order can now be finalized and entered.

3. Truth Case Guidance

Judge Wallace's main opinion in Truth reversed and remanded the district court's grant of summary judgment for the defendant...

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2 cases
  • Christian Legal Soc. v. Eck
    • United States
    • U.S. District Court — District of Montana
    • May 19, 2009
    ...activities supported by the UM Law School.14 (Kane, 2006 WL 997217 at *20); Every Nation Campus Ministries at San Diego State University v. Achtenberg et al., 597 F.Supp.2d 1075, 1095 (S.D.Cal. 2009). As noted by the Magistrate, other than financial support, CLS has full use of the law scho......
  • New Century Found v. Robertson
    • United States
    • U.S. District Court — Middle District of Tennessee
    • September 10, 2019
    ...more like nonpublic fora than public, whether traditional or designated. See, e.g. , Every Nation Campus Ministries at San Diego State Univ. v. Achtenberg , 597 F. Supp. 2d 1075, 1092 (S.D. Cal. 2009) ("In these fora, as in non-public fora, the government violates the First Amendment only ‘......
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