                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

TRUTH, an unincorporated                
association; SARICE UNDIS, a
minor, by and through her father,
LARRY UNDIS; JULIANNE STEWART, a
minor, by and through her parents,
PAUL and ANNA STEWART,
               Plaintiffs-Appellants,         No. 04-35876
                 v.
                                               D.C. No.
                                            CV-03-00785-MJP
KENT SCHOOL DISTRICT; BARBARA
GROHE, Superintendent of Kent                  OPINION
School District; MIKE ALBRECHT,
Principal of Kentridge High
School; ERIC ANDERSON, Assistant
Principal of Kentridge High
School, in their official capacities,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
          for the Western District of Washington
        Marsha J. Pechman, District Judge, Presiding

                   Argued and Submitted
             July 27, 2006—Seattle, Washington

                    Filed August 24, 2007

  Before: J. Clifford Wallace, Kim McLane Wardlaw, and
             Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Wallace



                            10437
                TRUTH v. KENT SCHOOL DISTRICT             10441


                         COUNSEL

Robert H. Tyler, Alliance Defense Fund, Murrieta, California,
for the plaintiffs-appellants.

Michael B. Tierney, Mercer Island, Washington, for the
defendants-appellees.

Jane M. Whicher, Port Townsend, Washington, for amicus
American Civil Liberties Union.

Sara J. Rose, Washington, D.C., for amicus Americans United
for Separation of Church and State.

David F. McDowell, Los Angeles, California, for amicus
Anti-Defamation League.


                          OPINION

WALLACE, Senior Circuit Judge:

   Appellants Truth, Sarice Undis, and Julianne Stewart (col-
lectively, Truth) appeal from a summary judgment in favor of
the Kent School District and other appellees (collectively,
District). Truth alleges violations of the Equal Access Act (the
Act), the First Amendment rights of free speech and expres-
sive association, the Free Exercise Clause, the Establishment
Clause, and the Equal Protection Clause. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm.
10442           TRUTH v. KENT SCHOOL DISTRICT
                               I.

   This appeal arises from Truth’s attempt to form a student
club at Kentridge High School (Kentridge), which is part of
the Kent School District. Under the relevant policies at Ken-
tridge, “[u]nchartered clubs are not permitted to exist.” To
obtain a charter, students must submit a proposed charter to
the Associated Student Body (ASB) Council and secure
approval.

   Beginning in the fall semester of 2001, appellants Undis,
then a junior, and Stewart, then a sophomore, attempted to
form a Bible club at Kentridge. Undis and Stewart submitted
a “Club Charter Application” (first charter) for official recog-
nition as an ASB organization in September 2001. This first
charter indicated that the club’s name was to be “Truth” and
that the purpose of the organization was to “have a Bible
study to encourage and help become better people with good
morals.” Under the section “Membership Criteria,” the first
charter indicated that the group was to be “[o]pen to anyone.”
The charter also proposed that it would designate a “quote of
the week for announcement” and “once a month decorate
[the] school with a theme.”

   The ASB Council discussed Truth’s first charter at a Sep-
tember 2001 meeting, and several students objected to char-
tering Truth. The ASB Council decided to consult with the
Assistant Principal, appellee Eric Anderson. Anderson and
appellee Mike Albrecht, Principal of Kentridge, later told
Undis that they would speak with the school’s attorney
regarding the legality of granting Truth ASB recognition.
Albrecht stated that “the problem with the September 2001
proposal was that it involved broadcasting a weekly Bible
quote over the school’s public address system and monthly
decoration of the school in a biblical theme.”

  No action was taken on the first charter for the remainder
of the 2001-02 school year. During that time, Undis asked
                TRUTH v. KENT SCHOOL DISTRICT            10443
Anderson to make a decision on Truth’s application on at
least ten occasions, to no avail. Sometime in the spring semes-
ter of 2002, all ASB clubs were instructed to resubmit their
charters. The record does not reveal any further activity on
Truth’s application during the summer and fall semesters of
2002.

   During this period, we decided Prince v. Jacoby, which
involved a request by a Bible club for ASB recognition in a
different Washington school district. 303 F.3d 1074 (9th Cir.
2002). On January 7, 2003, an attorney for Truth, Robert
Tyler, wrote to Albrecht stating that it was “constitutionally
imperative that [Kentridge] grant [appellants’] proposed Bible
Club treatment and rights equal to all other noncurriculum
clubs.” The letter also insisted that Kentridge “immediately
adhere to the requirements of the Equal Access Act and the
First Amendment,” and threatened litigation if Kentridge did
not comply.

   On January 30, 2003, Tyler sent a second letter to Michael
Harrington, counsel for the Kent School District. Tyler
requested the forms required to establish an ASB club, and
threatened litigation if Truth’s charter was not approved by
February 4.

   On February 2, as requested by Anderson, Undis and Stew-
art submitted a new application (second charter). The second
charter removed the quote-of-the-week and monthly theme
decoration provisions of the first charter. The club’s stated
purpose was now to “provid[e] a biblically-based club for
those students interested in growing in their relationship with
Jesus Christ.” Although membership would be open to all stu-
dents, the second charter restricted voting membership to
“members professing belief in the Bible and in Jesus Christ.”
Officers would also be required to “believe in and be commit-
ted to biblical principles.”

  After a third letter to Harrington from Tyler, the second
charter was discussed at an ASB Council meeting on March
10444           TRUTH v. KENT SCHOOL DISTRICT
27. Some students expressed disapproval of the club’s name,
suggesting that it “implies that every other religion at Ken-
tridge is a lie.” Some council members also expressed con-
cerns that granting the charter would violate “[c]hurch and
state” and that the voting membership should be open to
everyone. Additionally, members suggested that students
could go to “Young Life,” a non-ASB recognized organiza-
tion that met on Kentridge’s campus after school hours. The
minutes of the March 27 meeting reveal that the question of
whether to approve the second charter was discussed for
twenty minutes. No vote was taken.

   The second charter was next addressed at an ASB Council
meeting on April 1. After a brief clarification on the role of
the advisor for the club, the minutes show that Anderson
stated that if the ASB Council voted to approve the charter,
he would consult the District’s attorneys and Kentridge would
make a final decision on approving the charter. The Counsel
voted eleven to six against approval of Truth’s second charter.

   On April 3, Truth filed a complaint in the United States
District Court for the Western District of Washington, alleg-
ing that defendants had violated the Act, as well as the First
Amendment rights of free speech and expressive association,
the Free Exercise Clause, the Establishment Clause, and the
Equal Protection Clause. Truth sought injunctive and declara-
tory relief as well as nominal damages.

   On April 9, Anderson sent Stewart a letter informing her of
her right to resubmit Truth’s application for ASB club recog-
nition: “As was discussed at the ASB meeting on March 28th,
by making minor changes to Article[s] I and III of the pro-
posed Constitution for your club, you will address the points
raised.” Article I sets forth the name of the club and Article
III contains the voting membership and officer restrictions.
Anderson advised Stewart to “be prepared to resubmit by the
April 25th ASB Meeting.” Under the Kentridge ASB Consti-
tution, “[a]ny rejected charters must be resubmitted within
                 TRUTH v. KENT SCHOOL DISTRICT             10445
two weeks of rejection with the required changes made or the
charter shall be permanently rejected.”

   Stewart and Undis submitted the third charter on April 24.
The third charter maintains the proposed name “Truth.” How-
ever, it divides the membership into three categories: voting
members, non-voting members, and attendees. Meetings are
open to everyone. But the “privilege of membership is contin-
gent upon the member complying in good faith with Christian
character, Christian speech, Christian behavior and Christian
conduct as generally described in the Bible.” The charter
application also lists a “true desire to . . . grow in a relation-
ship with Jesus Christ” under the “Membership Criteria”
heading. In order to be a voting member or officer, students
are required to sign a “statement of faith.” The statement of
faith requires the person to affirm that he or she believes “the
Bible to be the inspired, the only infallible, authoritative
Word of God.” A member must also pledge that he or she
believes “that salvation is an undeserved gift from God,” and
that only by “acceptance of Jesus Christ as my personal Sav-
ior, through His death on the cross for my sins, is my faith
made real.” Other than the ability to call oneself a “member,”
there is no difference between the rights of non-voting mem-
bers and attendees.

   The third charter was discussed at the April 25 ASB Coun-
cil meeting. The ASB Council again objected to the name,
selectivity provisions, and the presence of religion in school.
The council voted nineteen to zero to deny approval of the
charter, with one member undecided. The minutes give four
reasons why the charter was not accepted: 1) “Name,” 2)
“Pledge to vote,” 3) “Segregating,” 4) “Religious club in
school.”

   On May 6, Tyler wrote to the Kent School District’s coun-
sel stating that it was his “understanding from the ASB Con-
stitution that this rejection by the ASB is the final decision.”
The letter also provided that Tyler “was unable to locate any
10446            TRUTH v. KENT SCHOOL DISTRICT
rights to appeal the decision of the ASB,” but that if there
were “a right to appeal the decision of the ASB,” he asked
that the letter “serve as a formal request for appeal.”

   Anderson advised Undis and Stewart in a May 12 letter
“that pursuant to Kent School District Policy 2340, [they had]
the ability to discuss this matter with Mr. Albrecht,” and men-
tioned the possibility of discussions with the District superin-
tendent or the ombudservices office. Although Tyler’s May 6
letter would appear to have invoked these processes, no fur-
ther action was taken by the District. Policy 2340 concerns
“religious related activities or practices.” The policy does not
refer to ASB recognition, and the ASB Constitution does not
refer to this policy as providing an avenue for an appeal of the
District’s decisions, which are otherwise “final.”

  Although Undis and Stewart have both graduated from
Kentridge, they have indicated that another student, Lindsay
Thomas, is prepared to assume leadership of the club if the
charter is approved.

   The Kent School District has three policies relevant to this
appeal. First, Policy 3210 provides that “[t]he district will
provide equal educational opportunity and treatment for all
students in all aspects of the academic and activities program.
Equal opportunity and treatment is provided without regard to
race, creed, color, national origin, sex, marital status, previous
arrest . . . , incarceration, or physical, sensory or mental dis-
abilities.” The district court held that inclusion of “creed”
indicates that discrimination based upon religion is prohibited.
That ruling has not been challenged on appeal.

  Second, Policy 2153 provides for “noncurriculum-related,
non ASB student groups,” which groups the principal shall
approve provided they meet several additional requirements.
The policy does not accord ASB privileges to Policy 2153
groups. The District states that Truth “is free to operate as a
                TRUTH v. KENT SCHOOL DISTRICT              10447
private Policy 2153 group,” but argues that Truth was prop-
erly denied ASB recognition.

   Third, Policy 2340P regulates “religious related activities
or practices,” and provides guidelines for schools addressing
religious holidays, symbols, ceremonies, topics, activities, and
beliefs. This policy also provides that “[s]tudents, parents, and
employees who are aggrieved by practices or activities con-
ducted in the school or district may seek resolution of their
concern first with the building principal, then with the district
superintendent or designee, or use ombudservices, which is
available through the Legal Services Department.”

   Washington State also has a relevant non-discrimination
law, which the District relies on to justify its denial of ASB
recognition for Truth. Washington Revised Code § 49.60.215
(West 2006) provides that:

    It shall be an unfair practice for any person or the
    person’s agent or employee to commit an act which
    directly or indirectly results in any distinction,
    restriction, or discrimination, . . . or the refusing or
    withholding from any person the admission, patron-
    age, custom, presence, frequenting, dwelling, stay-
    ing, or lodging in any place of public resort,
    accommodation, assemblage, or amusement, except
    for conditions and limitations established by law and
    applicable to all persons, regardless of race, creed,
    color, national origin, sexual orientation, sex, the
    presence of any sensory, mental, or physical disabil-
    ity, or the use of a trained dog guide or service ani-
    mal by a disabled person.

The District has argued that these non-discrimination policies
require it to deny ASB recognition to Truth.

   As of April 3, 2003, there were thirty ASB-recognized
clubs at Kentridge. There is no evidence of any Policy 2153
10448            TRUTH v. KENT SCHOOL DISTRICT
groups at Kentridge. While the record does not contain the
charters of all the clubs, it appears that many of them have
selective membership criteria, restricting membership based
on both beliefs and conduct. Indeed, each charter application
contains a section for “Membership Criteria.”

   The Earth Corps, for example, requires members to show
“interest and dedication toward environmental issues.” Simi-
larly, the Key Club requires that members be “interested in
service, qualified scholastically, of good character, possessing
leadership potential . . . [and] willing to perform at least fifty
hours of . . . service.” The Gay-Straight Alliance requires that
students “must be willing to work towards the goals of the
club” to be members. These goals include “bring[ing]
GLBTQ [Gay, Lesbian, Bisexual, Transgendered, and Ques-
tioning] issues into the open, while working to decrease
homophobia.” Other goals include “changing stereotypes”
and “fight[ing] heterosexism and other forms of oppression.”
The National Honor Society selects its members based on
“outstanding scholarship, character, leadership, and service,”
and requires them to “behave in a courteous and respectful
manner, refraining from language and actions that might bring
discredit upon themselves.” It also requires members to
refrain from using or possessing alcohol or illegal substances.
Participation in school sports requires maintaining a certain
grade point average and attendance record, not using drugs or
alcohol, and complying with the “sports code.” Finally, a
Men’s Honor Club and a Girls Honor Club also operate at
Kentridge as ASB-recognized groups. Each club has gender-
exclusive membership.

   The district court entered summary judgment on all of
Truth’s claims under Monell v. Department of Social Services,
436 U.S. 658 (1978), with the exception of the Act claim. The
court held that the requirements of municipal liability under
42 U.S.C. § 1983 were not satisfied, and therefore entered
summary judgment in favor of the District. It also held that
the actions against the individual defendants in their official
                TRUTH v. KENT SCHOOL DISTRICT             10449
capacities were functionally equivalent to suits directly
against the municipality, and therefore Truth’s claims against
them failed.

   The district court ruled on the merits of the Act and some
of the First Amendment claims, addressing the latter as an
alternate holding if its Monell ruling were to be reversed. It
held that the restrictions on general membership in the third
charter constituted a legitimate basis for denying the third
charter and that these claims therefore failed.

   The district court did not rule on the remaining claims
based on its belief that “Plaintiffs’ cursory Equal Protection
Clause, Establishment Clause, and Free Exercise Clause argu-
ments are all subsumed within their First Amendment argu-
ment.” The district court also did not address the District’s
argument that granting ASB recognition to Truth would vio-
late the Establishment Clause.

  On appeal, both sides agree that only the third charter is
before us. Truth makes this concession even though this
action was filed before the third charter and its complaint only
addresses the denial of its second charter.

   This appeal requires us to review many determinations by
the district court. As to each issue, we review de novo. We
review a district court’s summary judgment de novo. See
Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). In deter-
mining whether summary judgment was appropriate, we view
the evidence in the light most favorable to Truth, the non-
moving party. See Olsen v. Idaho State Bd. of Med., 363 F.3d
916, 922 (9th Cir. 2004). “We may affirm on any ground sup-
ported by the record.” Id. We also review de novo the district
court’s Monell rulings, see Doe v. Lebbos, 348 F.3d 820, 825
(9th Cir. 2003), its “decision regarding the scope of a consti-
tutional right,” see United States v. Napier, 436 F.3d 1133,
1135-36 (9th Cir. 2006), and its interpretation of the Act, see
SEC v. McCarthy, 322 F.3d 650, 654 (9th Cir. 2003).
10450           TRUTH v. KENT SCHOOL DISTRICT
                              II.

   Before addressing the merits, we consider our jurisdiction.
The District argues that Truth lacks standing under City of Los
Angeles v. Lyons, 461 U.S. 95 (1983), because Truth has
failed to meet the “likelihood of recurrence” requirement. The
District asserts that Truth “cannot say the ASB or the District
will always deny another Club application or even the same
application.”

  [1] In order to establish Article III standing,

    a plaintiff must show (1) it has suffered an “injury in
    fact” that is (a) concrete and particularized and (b)
    actual or imminent, not conjectural or hypothetical;
    (2) the injury is fairly traceable to the challenged
    action of the defendant; and (3) it is likely, as
    opposed to merely speculative, that the injury will be
    redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 180-81 (2000). Although the District has not made
any arguments regarding these specific factors, we have an
independent obligation to address whether we have subject-
matter jurisdiction. See Dittman v. California, 191 F.3d 1020,
1025 (9th Cir. 1999). “[A]t the summary judgment stage the
plaintiffs need not establish that they in fact have standing,
but only that there is a genuine question of material fact as to
the standing elements.” Cent. Delta Water Agency v. United
States, 306 F.3d 938, 947 (9th Cir. 2002).

   [2] With respect to injunctive relief, the Supreme Court has
also required that a plaintiff show that “he is realistically
threatened by a repetition of [the violation].” Lyons, 461 U.S.
at 109. “The plaintiff need only establish that there is a rea-
sonable expectation that his conduct will recur, triggering the
alleged harm; he need not show that such recurrence is proba-
ble.” Jones v. City of Los Angeles, 444 F.3d 1118, 1127 (9th
                TRUTH v. KENT SCHOOL DISTRICT              10451
Cir. 2006), citing Honig v. Doe, 484 U.S. 305, 318 & n.6
(1988). While we have extended this requirement to declara-
tory relief, see Gest v. Bradbury, 443 F.3d 1177, 1181 (9th
Cir. 2006), it does not apply to monetary damages, see Lyons,
461 U.S. at 105. The District’s standing argument therefore
does not implicate Truth’s standing to seek nominal damages.

   The District asserts that the Establishment Clause, state
law, and its own non-discrimination policies mandate that it
deny ASB recognition to Truth. If the District believes that
three independent and binding legal authorities compel it to
deny Truth’s application, we do not see how the District
might approve the same or a similar charter request in the
future.

   [3] The District’s written non-discrimination policies also
support Truth’s standing arguments. We have held that plain-
tiffs “may demonstrate that an injury is likely to recur by
showing that the defendant had . . . a written policy, and that
the injury ‘stems from’ that policy. Where the harm alleged
is directly traceable to a written policy there is an implicit
likelihood of its repetition in the immediate future.” Fortyune
v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir.
2004) (internal quotations and alterations omitted). Here, the
harm is traceable to the District’s policies, which the District
has argued compel it to deny ASB recognition to Truth.

   Additionally, despite Tyler’s request that the District treat
his letter as a “formal request for appeal,” the District took no
action. This is evidence that another charter request is likely
to meet the same fate as the previous three. Finally, the Dis-
trict has provided nothing beyond its own speculation that the
outcome might be different if Truth submitted a fourth char-
ter. The legal positions it has taken in this litigation strongly
suggest that no similar applications will ever be approved.

   [4] Under these circumstances, we conclude that Truth has
established at least a genuine issue of material fact as to
10452            TRUTH v. KENT SCHOOL DISTRICT
whether there is a reasonable expectation that the alleged
injury will recur. Therefore, Truth has standing to seek each
of its requested forms of relief.

   The District also suggests that this dispute is not ripe for
review, and that we thus lack jurisdiction, because Truth did
not bring the dispute to the Kent School District Board or
Superintendent through Policy 2340P. The District is wrong.
The Supreme Court has explicitly held that exhaustion is not
required for claims brought under 42 U.S.C. § 1983. See Stef-
fel v. Thompson, 415 U.S. 452, 472-73 (1974). Exhaustion
cannot be dispositive under a ripeness analysis; otherwise
ripeness doctrine would impose a de facto exhaustion require-
ment, in violation of Steffel. Thus, the alleged failure to
exhaust administrative remedies may be at most only a factor
in the ripeness analysis.

   [5] Nevertheless, it appears that Truth did exhaust the for-
mal appeal system. Tyler’s May 6 letter to the District’s coun-
sel asked that the letter “serve as a formal request for appeal.”
The District has not provided any reason why this notification
was not sufficient to trigger its appeals process, and no reason
is apparent in the record. The District’s failure to take any
action as a result of this request does not indicate that Truth
failed to bring the matter to the attention of the District. Under
these circumstances, there is at least a genuine issue of mate-
rial fact as to whether Truth exhausted the District’s grievance
procedures.

   Nearly every other factor suggests that this case is ripe for
decision. Under the Kentridge ASB Constitution, “[a]ny
rejected charters must be resubmitted within two weeks of
rejection with the required changes made or the charter shall
be permanently rejected.” The ASB Constitution does not
provide for any additional review, nor does it suggest that the
ASB Council’s decision lacked finality.

  Furthermore, there is no doubt that the effects of the denial
of Truth’s charter have been felt in a concrete way by the
                TRUTH v. KENT SCHOOL DISTRICT              10453
appellants. Truth’s members have experienced three denials
of their applications, as well as protracted delays in obtaining
any action from the ASB Council and District. The harm that
Truth has complained of does not “rest[ ] upon contingent
future events” or ones that “may not occur at all.” Texas v.
United States, 523 U.S. 296, 300 (1998). Instead, Truth com-
plains of discrete events that have already occurred.

   [6] Finally, “in evaluating ripeness, courts assess both the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.” Ass’n of Am.
Med. Colls. v. United States, 217 F.3d 770, 779-80 (9th Cir.
2000) (internal quotation omitted). We conclude the hardship
to Truth in denying adjudication outweighs the hardship to the
District in deciding this appeal. Truth’s application for ASB
recognition languished for nearly sixteen months without any
significant action being taken, and the ASB process appears
to have stalled until Truth obtained counsel and threatened to
sue. More than five years have passed since the submission of
the first charter, and declining to decide this appeal now
would present a significant hardship to appellants.

   [7] By contrast, the hardship to the District is significantly
less severe. The District has been aware of Truth’s arguments
for a long time and has had ample opportunity to take correc-
tive action or change its policies, if it so desired. Its legal
positions on appeal show that it does not believe any remedial
action is appropriate and that it believes the denial of ASB
recognition was proper. We therefore conclude that this case
is ripe for decision.

                              III.

  [8] We must also consider the district court’s ruling that the
requirements of Monell are not met. Monell permits section
1983 actions against municipalities, but requires plaintiffs to
show that their injuries resulted from “execution of a govern-
ment’s policy or custom, whether made by its lawmakers or
10454           TRUTH v. KENT SCHOOL DISTRICT
by those whose edicts or acts may fairly be said to represent
official policy.” 436 U.S. at 694. Monell’s requirements do
not apply where the plaintiffs only seek prospective relief,
which is the case here. See Chaloux v. Killeen, 886 F.2d 247,
250-51 (9th Cir. 1989). The District acknowledges the con-
trolling effect of Chaloux, but argues that it should be over-
ruled because it “rests on shaky grounds.”

  [9] It is well established in our circuit that while

    a three judge panel normally cannot overrule a deci-
    sion of a prior panel on a controlling question of law,
    we may overrule prior circuit authority without tak-
    ing the case en banc when an intervening Supreme
    Court decision undermines an existing precedent of
    the Ninth Circuit, and both cases are closely on
    point.

Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th
Cir. 2002) (internal citation and quotations omitted). The Dis-
trict argues that two Supreme Court cases, Board of County
Commissioners of Bryan County v. Brown, 520 U.S. 397
(1997), and McMillian v. Monroe County, 520 U.S. 781
(1997), show that the “Supreme Court has re-emphasized the
importance and vitality of the doctrine that requires a munici-
pal policy as a precondition to a lawsuit under § 1983.” Nei-
ther of these cases addresses whether Monell applies to
actions only seeking prospective relief. We have no authority
to overrule Chaloux. Chaloux applies, and the district court’s
Monell ruling is reversed.

                              IV.

  Relying on its non-discrimination policies, the District
points to three aspects of Truth’s third charter that justify its
decision to deny the club ASB recognition: 1) the general
membership restrictions, 2) the leadership and voting mem-
bership restrictions, and 3) the name “Truth.” We address the
                 TRUTH v. KENT SCHOOL DISTRICT             10455
first of these, holding that Truth’s general membership restric-
tions violate the District’s non-discrimination policies and are
not protected by either the Act or the First Amendment.

                               A.

   [10] States have the constitutional authority to enact legis-
lation prohibiting invidious discrimination. See Roberts v.
United States Jaycees, 468 U.S. 609, 624-26 (1984) (review-
ing the history of state anti-discrimination laws and observing
that a “State enjoys broad authority to create rights of public
access on behalf of its citizens”). Truth asserts that it does not
discriminate based on religion in violation of the plain lan-
guage of the District’s policies, but rather imposes a code of
conduct not unlike those of other approved ASB clubs. Even
assuming that non-Christians would be able to comply with
Truth’s view of “Christian character, Christian speech, Chris-
tian behavior and Christian conduct,” we hold that the
requirement that members possess a “true desire to . . . grow
in a relationship with Jesus Christ” inherently excludes non-
Christians.

   [11] Having determined that the third charter violates the
District’s non-discrimination policies, we are led to hold that
the District’s denial of ASB recognition on this account is
consistent with the Act. The Act requires federally-funded
schools that have created a limited open forum to grant reli-
gious clubs benefits and privileges afforded to all other non-
curriculum clubs. See Bd. of Educ. of the Westside Cmty.
Schs. v. Mergens, 496 U.S. 226, 235-36 (1990); Prince, 303
F.3d at 1081 (“[T]he term ‘equal access’ means what the
Supreme Court said in Widmar [v. Vincent, 454 U.S. 263,
267-71 (1981)]: religiously-oriented student activities must be
allowed under the same terms and conditions as other extra-
curricular activities . . . .”). Prince held that the rights pro-
tected under the Act include equal access to the funding and
public communication techniques associated with recognition
as an ASB group. 303 F.3d at 1084-90.
10456           TRUTH v. KENT SCHOOL DISTRICT
   Truth now requests an exemption from school policies reg-
ulating Truth’s conduct, arguing that its rights under the Act
would be violated were it not granted such an exemption. In
interpreting the Act, we begin with its plain language. “Where
the intent of Congress has been expressed in reasonably plain
terms, that language must ordinarily be regarded as conclu-
sive.” Id. at 1079 (internal quotations and citation omitted).
Where there may be uncertainty, however, we rely on the
Supreme Court’s direction that the Act is to be “interpreted
broadly,” Mergens, 496 U.S. at 239, as well as cases deciding
analogous issues under the First Amendment. Cf. Hsu v. Ros-
lyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 855-56 (2d Cir.
1996) (adopting similar approach).

   [12] By its plain terms, the Act prevents only denials of
access or fair opportunity or discrimination “on the basis of
the religious, political, philosophical, or other content of the
speech at [a club’s] meetings.” 20 U.S.C. § 4071(a). There-
fore, once it is established that the secondary school receives
federal funds and has created a limited open forum, the club
must demonstrate two additional elements to prevail: 1) a
denial of equal access, or fair opportunity, or discrimination;
2) that is based on the “content of the speech” at its meetings.

   [13] The District has denied Truth ASB status not because
of the religious “content of the speech,” but rather because of
its discriminatory membership criteria. The Act does not
define “content of the speech,” but that phrase has a particular
meaning in First Amendment jurisprudence. We have held
that “whether a statute is content neutral or content based is
something that can be determined on the face of it; if the stat-
ute describes speech by content then it is content based.”
Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005)
(quotations and citation omitted). Similarly, a “restriction on
expressive activity is content-neutral if it is . . . based on a
non-pretextual reason divorced from the content of the mes-
sage attempted to be conveyed.” Id. (quotations and citation
omitted).
                 TRUTH v. KENT SCHOOL DISTRICT             10457
   The Act, through which Congress extended the reasoning
of the Supreme Court’s 1981 decision in Widmar v. Vincent
to secondary schools, see Mergens, 496 U.S. at 235, tracks
Widmar’s emphasis on discrimination based on the content of
the plaintiff’s speech. Widmar struck down a state universi-
ty’s regulation prohibiting the use of university buildings or
grounds “for purposes of religious worship or religious teach-
ing.” 454 U.S. at 265. Widmar thus precluded a university’s
“discriminatory exclusion from a public forum based on the
religious content of a group’s intended speech,” 454 U.S. at
269-70, but not its “right to exclude . . . First Amendment
activities that violate reasonable campus rules,” id. at 277.
Likewise, the Act prevents a school’s unreasonable limitation
on the conduct of a club to the extent the limitation is justified
with reference to the expressive content of the regulated con-
duct. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (“Government regulation of expressive activity is con-
tent neutral so long as it is justified without reference to the
content of the regulated speech” (internal quotations and cita-
tion omitted)).

   [14] Congress could have written the Act to protect reli-
gious clubs against any burden on their activities, but did not.
For example, when Congress passed the Religious Land Use
and Institutionalized Persons Act, it not only prohibited dis-
crimination against religious groups as such but also limited
governments’ abilities to impose even neutral, nondiscrimina-
tory policies against them:

    No government shall impose or implement a land
    use regulation in a manner that imposes a substantial
    burden on the religious exercise of a person, includ-
    ing a religious assembly or institution, unless the
    government demonstrates that imposition of the bur-
    den on that person, assembly, or institution—

         (A) is in furtherance of a compelling gov-
         ernmental interest; and
10458           TRUTH v. KENT SCHOOL DISTRICT
         (B) is the least restrictive means of further-
         ing that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1). Thus, Congress knows how to draft
a statute placing otherwise content-neutral laws of general
applicability that incidentally burden a First Amendment
activity under the same judicial scrutiny as laws specifically
targeting the religious content of a group’s expression. See
Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456
F.3d 978, 985-86 (9th Cir. 2006). That is not the case here.
The Act clearly allows exclusions that are not “content”-
based.

   [15] The Act’s legislative history strengthens our conclu-
sion that it prohibits only content-based restrictions on reli-
gious groups. The legislative history focuses on Congress’s
intent to end school districts’ previous practice of treating
religious groups inequitably and forbidding them from meet-
ing on campus. See S. Rep. 98-357, at 6, 1984 U.S.C.C.A.N.
2348, 2352 (1984) (“Despite Widmar, many school adminis-
trators across the country are prohibiting voluntary, student-
initiated religious speech as an extracurricular activity.”); id.
at 15, 1984 U.S.C.C.A.N. at 2361 (“[S]chool authorities
across the country are banishing religious clubs from campus
or placing such onerous restrictions on them that meetings
become almost impossible.”). The Senate Report recognized
the possibility that religious groups like Truth might claim
that content-neutral policies regulating club membership vio-
late the Act, and disclaimed any such intent:

    At the same time, the guarantee of equal access does
    not require special treatment for religious groups.
    Religious groups are accorded only the same rights
    and privileges as are granted to other student groups.
    In practice, however, this means that not all student
    groups would receive exactly the same privileges.
    There could be many neutral and impartial time,
    place, and manner restrictions placed on the use of
                TRUTH v. KENT SCHOOL DISTRICT             10459
    school facilities which might produce situations in
    which some voluntary groups would not receive pre-
    cisely the same access received by others. . . . The
    access determination could not be made, however,
    on the basis that the nature of the activity was reli-
    gious.

Id. at 39, 1984 U.S.C.C.A.N. at 2385. The District’s non-
discrimination policies are not time, place or manner restric-
tions. But like such restrictions, the policies are content-
neutral. This strongly suggests that Congress did not intend
the Act to apply to non-discrimination policies.

   [16] The parties do not dispute that the Kent School District
receives federal funding, or that Kentridge has created a lim-
ited open forum for extracurricular student groups. The Dis-
trict contests, however, whether the Act’s guarantee of equal
access, fair opportunity, and non-discrimination protects
Truth’s freedom to exclude those who do not share Christian
values from its general membership. On their face, the Dis-
trict’s non-discrimination policies do not preclude or discrimi-
nate against religious speech. Indeed, there are two other
Bible clubs at Kentridge that have received ASB recognition
and do not share Truth’s general membership restrictions.
Truth also has not shown that the District justifies its non-
discrimination policies with reference to the content of a mes-
sage Truth’s discriminatory conduct may attempt to convey.
The policies are content-neutral. Therefore, to the extent they
proscribe Truth’s discriminatory general membership restric-
tions, the policies do not implicate any rights that Truth might
enjoy under the Act.

   Our reasoning is in some tension with that of the Second
Circuit, which has focused on the term “speech” in the Act
rather than the content-neutrality (or lack thereof) of school
policies. See Hsu, 85 F.3d at 856 (rejecting argument that Act
was not implicated because “the School did not base its quali-
fied recognition of the Club on what would be said at the Club
10460           TRUTH v. KENT SCHOOL DISTRICT
meetings, but on what could be characterized as the Club’s
‘act’ of excluding non-Christians from leadership”); id. at 859
(Act triggered “when an after-school religious club excludes
people of other religions from conducting its meetings . . . to
protect the expressive content of the meetings”). However, the
argument that the Act does not extend to content-neutral regu-
lations, which we have concluded is correct, was not squarely
addressed in Hsu.

  Truth has also made a cursory argument that the District
violated the Act by allowing other groups to impose codes of
conduct and other selective membership criteria, while deny-
ing it an equal opportunity to do the same. With respect to
most of these other groups, we can reject Truth’s premise
because the groups do not discriminate on a basis specifically
enumerated by the non-discrimination policies.

   It is true that the Men’s and Girls Honor Clubs are more
difficult to distinguish, as they employ gender-restrictive
membership criteria. However, the record is devoid of any
information on the approval processes for these clubs and the
rationale given for the apparent exemption from the Kent
School District’s non-discrimination policies. Nor has Truth
alleged that the District has a policy of granting exemptions,
and that this policy was unequally applied to Truth. Under
these circumstances, we conclude that Truth has failed to
meet its burden of showing that the District violated the Act.

  [17] Because the Act did not bar the District from denying
ASB recognition to Truth on account of the general member-
ship restrictions in its third charter, we affirm the district
court’s summary judgment on Truth’s claim under the Act.

                              B.

   We next address whether, and if so how, the First Amend-
ment may apply where a school denies ASB recognition to a
student club based on its membership criteria. Roberts sug-
                TRUTH v. KENT SCHOOL DISTRICT              10461
gests that a First Amendment claim arising from such a denial
may fall into one of two categories. See 468 U.S.at 622-23.
Although these categories of claims may implicate different
levels of review, we need not decide which test applies as
Truth has failed to show that the denial of ASB recognition
based on its general membership restrictions burdens a First
Amendment interest, which is a threshold inquiry under either
test.

   Healy v. James typifies the first category of First Amend-
ment claim. 408 U.S. 169 (1972). There, the president of a
state college denied official recognition to a group of students
who desired to form a local chapter of Students for a Demo-
cratic Society (SDS), an organization that, in the Supreme
Court’s view, had been a “catalytic force” behind “civil dis-
obedience on some campuses, accompanied by the seizure of
buildings, vandalism, and arson.” Id. at 170-71. The students
sued the college president, among others, asserting that the
denial of official recognition violated the First Amendment.
Id. at 177. The Court held that the Second Circuit erred by
discounting the existence of a cognizable First Amendment
associational interest, id. at 181-82, 184, but also stated that
if the district court on remand found that there was evidence
to support the conclusion that a local SDS chapter posed “a
substantial threat of material disruption,” then the president’s
decision to deny official recognition should be affirmed, id. at
189.

   “Associational activities,” held the Court, “need not be tol-
erated where they infringe reasonable campus rules, interrupt
classes, or substantially interfere with the opportunity of other
students to obtain an education.” Id. The Court did not con-
demn incidental infringements on the students’ associational
rights, so long as the school’s reason for denying official rec-
ognition was “directed at the organizations’s activities, rather
than its philosophy.” Id. at 188.

  Healy observed that “the critical line for First Amendment
purposes must be drawn between advocacy, which is entitled
10462           TRUTH v. KENT SCHOOL DISTRICT
to full protection, and action, which is not.” Id. at 192. This
distinction permits schools to regulate student conduct, even
if it incidentally affects student expression:

    Just as in the community at large, reasonable regula-
    tions with respect to the time, the place, and the
    manner in which student groups conduct their
    speech-related activities must be respected. A col-
    lege administration may impose a requirement, such
    as may have been imposed in this case, that a group
    seeking official recognition affirm in advance its
    willingness to adhere to reasonable campus law.
    Such a requirement does not impose an impermissi-
    ble condition on the students’ associational rights.
    Their freedom to speak out, to assemble, or to peti-
    tion for changes in school rules is in no sense
    infringed. It merely constitutes an agreement to con-
    form with reasonable standards respecting conduct.
    This is a minimal requirement, in the interest of the
    entire academic community, of any group seeking
    the privilege of official recognition.

Id. at 192-93. The Court “conclude[d] that the benefits of par-
ticipation in the internal life of the college community may be
denied to any group that reserves the right to violate any valid
campus rule with which it disagrees.” Id. at 193-94.

  To determine whether a campus rule that incidentally bur-
dens expressive rights is permissible under the First Amend-
ment, Healy calls for applying the four-part test of United
States v. O’Brien, 391 U.S. 367 (1968). Healy, 408 U.S. at
189 n.20. In O’Brien, the government prosecuted an individ-
ual for burning his draft card, which the Court assumed to be
expressive conduct. 391 U.S. at 376. The Court held that gov-
ernment regulation of expressive conduct is permissible

    if it is within the constitutional power of the Govern-
    ment; if it furthers an important or substantial gov-
                 TRUTH v. KENT SCHOOL DISTRICT             10463
    ernmental interest; if the governmental interest is
    unrelated to the suppression of free expression; and
    if the incidental restriction on alleged First Amend-
    ment freedoms is no greater than is essential to the
    furtherance of that interest.

Id. at 377.

   [18] Accordingly, for the O’Brien test to apply, the govern-
ment regulation must incidentally affect expressive conduct.
Truth has not established that its policy of excluding persons
who do not share Christian values from its general member-
ship has any expressive content, let alone that this policy
communicates a message consistent with the views of the
club’s organizers. Truth has thus failed to show the required
incidental infringement of a First Amendment interest.

   By contrast, a claim falling in the second Roberts category
is one where a regulation imposes a Hobson’s Choice on the
organization: include unwanted members or disband. Such
“forced-inclusion” claims have come in two varieties. First,
an organization may challenge a state law that forces it to
accept leaders or voting members who do not hold views con-
sistent with the original members. California Democratic
Party v. Jones, for instance, held that a state primary law vio-
lated the First Amendment because it forced “political parties
to associate with — to have their nominees, and hence their
positions, determined by — those who, at best, have refused
to affiliate with the party, and, at worst, have expressly affili-
ated with a rival.” 530 U.S. 567, 577 (2000). Similarly, Dem-
ocratic Party of the United States v. Wisconsin ex rel. La
Follette overturned, on First Amendment grounds, a state law
that effectively required the National Democratic Party, in
violation of the party’s rules, to allow non-party members to
participate in the selection of the party’s presidential nominee.
450 U.S. 107, 125-26 (1981) (La Follette).

   Second, an organization may challenge a regulation that
forces it to accept as members individuals whose very mem-
10464           TRUTH v. KENT SCHOOL DISTRICT
bership in the organization would force it to communicate a
message inconsistent with the views of the organization’s
original members. Leading this line of cases is Roberts, where
the Court upheld against a First Amendment challenge a state
law requiring the Jaycees to admit women as voting members.
468 U.S. at 628-29. The Court did so in part because the “Jay-
cees already invites women to share the group’s views and
philosophy and to participate in much of its training and com-
munity activities.” Id. at 627. In the Court’s view, any claim
that their admission “will impair a symbolic message con-
veyed by the very fact that women are not permitted to vote
is attenuated at best.” Id.

   By contrast, Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston held that a state law violated the
First Amendment because it required parade organizers to
allow a gay, lesbian, and bisexual contingent to march in the
parade. 515 U.S. 557, 559 (1995). The Court emphasized that
the contingent’s mere presence behind the organizer’s banner
conflicted with the organizer’s “particular point of view.” Id.
at 575.

    The Court reached a similar conclusion in Boy Scouts of
America v. Dale, 530 U.S. 640, 653 (2000). There, the Court
held that a state non-discrimination law requiring the Boy
Scouts to admit a gay-rights activist violated the First Amend-
ment because it “force[d] the organization to send a message
. . . that [it] accepts homosexual conduct as a legitimate form
of behavior.” Id. Significantly, this message conflicted with
the “sincerely” held views of the organization. Id. Most
recently, Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. upheld the Solomon Amendment against a Dale
challenge on the ground that the military recruiters required
to be admitted to law schools “come onto campus for the lim-
ited purpose of trying to hire students — not to become mem-
bers of the school’s expressive association.” 126 S.Ct. 1297,
1312 (2006).
                TRUTH v. KENT SCHOOL DISTRICT             10465
   In both of these forced-inclusion scenarios, the Court has
applied strict scrutiny, asking whether the organization’s free-
dom of expressive association “could be overridden by regu-
lations adopted to serve compelling state interests, unrelated
to the suppression of ideas, that cannot be achieved through
means significantly less restrictive of associational freedoms.”
Dale, 530 U.S. at 648 (internal quotations and citation omit-
ted); see also Jones, 530 U.S. at 582; Roberts, 468 U.S. at
623-26; La Follette, 450 U.S. at 125-26.

  [19] The First Amendment interest implicated by the first
kind of forced-inclusion case is not present here. The general
members do not control the club’s Bible study and prayer
functions. They do not lead the club in its activities. They
cannot vote.

   Truth has also not shown that the First Amendment interest
implicated by the second kind of forced-inclusion case is
present here. This case is not like Hurley or Dale. In Hurley,
the gay, lesbian, and bisexual contingent wanted to be an
equal participant in the organization’s parade. In Dale, the
gay-rights activist wanted to be a leader of the organization.
Here, by contrast, those who merely seek general membership
status do not seek to participate on equal footing with Truth’s
voting members or leaders. The concern that people outside
the club will construe the non-Christian conduct of general
members as conduct endorsed by Truth has therefore not been
proven here to the same extent that it was demonstrated in
Hurley and Dale. On this record, outside observers would not
receive, from the admission of individuals that Truth wishes
to exclude from its general membership, any message that
conflicts with the club’s views. Moreover, Truth states in its
brief that the admission of non-Christians as general members
would be unproblematic. While this statement does not
resolve the issue before us — namely, whether the admission
of individuals who do not meet Truth’s general membership
criteria (a category distinct from non-Christians) would con-
vey a message in conflict with the club’s views — it does fur-
10466           TRUTH v. KENT SCHOOL DISTRICT
ther suggest that general membership status is not a
significant measure of the club’s expressive purposes.

   In Christian Legal Society v. Walker, 453 F.3d 853, 857,
861-84 (7th Cir. 2006), the Seventh Circuit applied the
forced-inclusion cases to a similar set of facts. Truth, how-
ever, has not shown the infringement of a cognizable First
Amendment interest with respect to the District’s denial of
ASB recognition on account of the general membership
restrictions. Therefore, we will not express any opinion here
on whether the Seventh Circuit employed the appropriate
legal framework.

   [20] We thus affirm the district court’s summary judgment
on the First Amendment claim. We need not address whether
the District violated the Act or the First Amendment by deny-
ing ASB recognition due to the voting membership and lead-
ership restrictions. Nor do we address whether the
Establishment Clause requires the District to deny Truth ASB
recognition.

                              V.

   We next discuss Truth’s First Amendment Free Exercise
Clause claim. Truth contends that the strict scrutiny standard
of Sherbert v. Verner, 374 U.S. 398 (1963), applies, while the
District appears to argue for application of the rational basis
test of Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990).

   Ordinarily, “the rational basis test applies in ascertaining
whether a neutral law of general applicability violates the
right to free exercise of religion even though the law inciden-
tally burdens a particular religious belief or practice.” San
Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,
1031 (9th Cir. 2004) (alterations and internal quotations omit-
ted). “In Smith, [however,] the Supreme Court stated that free
exercise claims implicating other constitutional protections,
                TRUTH v. KENT SCHOOL DISTRICT              10467
such as free speech, could qualify for [Sherbert] strict scrutiny
review even if the challenged law is neutral and generally
applicable.” Am. Family Ass’n v. City & County of San Fran-
cisco, 277 F.3d 1114, 1124 (9th Cir. 2002). In order to make
out such a hybrid claim, “a ‘free exercise plaintiff must make
out a colorable claim that a companion right has been violat-
ed.’ ” Id., quoting Miller v. Reed, 176 F.3d 1202, 1207 (9th
Cir. 1999).

   [21] We have held that Truth’s First Amendment argument
with respect to the general membership restrictions is not col-
orable. Accordingly, rational basis review applies to the
group’s Free Exercise claim. Although the district court did
not distinctly address this claim, we need not remand because
it is clear that the claim is meritless. See In re Pintlar Corp.,
133 F.3d 1141, 1145 (9th Cir. 1998) (“Remand is not neces-
sary where the issue has been fully briefed on appeal, the
record is clear and remand would impose needless additional
expense and delay” (internal quotation marks omitted)). The
District had a rational basis for drafting and implementing its
non-discrimination policies, namely its legitimate aim of pre-
venting students from being subjected to unequal treatment on
account of their religion. See Roberts, 468 U.S. at 623 (refer-
ring to the state’s “compelling interest in eradicating discrimi-
nation”).

   [22] Truth’s Equal Protection and Establishment Clause
claims are given only brief treatment by Truth and rely on the
same premise: that the unequal treatment of Truth’s charter
application violates the applicable clause of the Constitution.
We need not reach the merits of this argument because we can
reject the premise. Truth was not accorded unequal treatment,
because the denial of its third charter was justified under the
First Amendment and the Act based upon its general member-
ship restrictions. This denial represented a neutral application
of the Kent School District’s non-discrimination policies and
therefore did not constitute unequal treatment.
10468            TRUTH v. KENT SCHOOL DISTRICT
   The District has also argued that the ASB has free speech
rights that would be violated if it were compelled to recognize
Truth as an ASB organization. The ASB is not a party to this
appeal and there is no indication that the District has authori-
zation from the ASB to assert any such First Amendment
claims. We conclude that the District lacks prudential stand-
ing to assert the ASB’s free speech rights. See Kowalski v.
Tesmer, 543 U.S. 125, 129 (2004) (“[A] party generally must
assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties.”
(internal quotations omitted)).

                               VI.

   [23] It is prudent to address only those issues necessary for
our decision on the third charter application. We hold only
that the District did not violate the Act or Truth’s First
Amendment rights by requiring Truth to remove its general
membership provision. Because the denial of Truth’s third
charter was permissible on this basis, we need go no further
to affirm the summary judgment.

  AFFIRMED.
