Full opinion text
ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [Docket Nos. 70 & 71] S. JAMES OTERO, District Judge. This matter is before the Court on Plaintiffs’ Motion for Summary Judgment and Defendants’ Motion for Partial Summary Judgment, both filed on August 27, 2007. Oppositions and Replies have been filed as to both Motions. After hearing argument on February 14, 2008 and carefully considering all admissible documents and the arguments made in support of and in opposition to each Motion, the Court DENIES Plaintiffs’ Motion for Summary Judgment and GRANTS Defendants’ Motion for Partial Summary Judgment. Table of Contents I. BACKGROUND..........................................................1088 A. The UC Admissions Process............................................1088 B. The A-G Guidelines...................................................1089 C. The “A-G Policies”....................................................1089 D. The Parties ’ Motions for Summary Judgment............................1090 II. DISCUSSION............................................................1090 A. The Scope of Plaintiffs’ Facial Challenge.................................1091 1. The “Single Religious Viewpoint Policy”.............................1091 2. The “History and Social Science Policy”.............................1093 3. The “Science Policy”...............................................1094 B. Plaintiffs’Facial Constitutional Claims.................................1094 1. The Free Speech Clause............................................1094 a. Viewpoint Discrimination and Content Regulation................1094 i. The A-G Guidelines and Policies Must Be Rationally Related to UC’s Educational Goal of Admitting Qualified Students.......................................1098 (a) Are the A-G Guidelines and UC Position Statements Substantively Reasonable?............................1099 (1) UC Position Statement on Religion and Ethics Courses..........................................1099 (2) UC Position Statements on Science and History Courses..........................................1100 (b) Are the Reviewers Qualified?............................1100 (c) Is the UC Course Review Process Unreasonably “Probabilistic”?......................................1101 (d) Is Reviewing Only California High School Courses Reasonable?.........................................1101 ii. Defendants Cannot Implement Regulations Because of Animus Toward Religion, Even If Those Regulations Are Rationally Related to UC’s Educational Purpose............1102 b. Overbreadth ..................................................1105 c. Unbridled Discretion ..........................................1106 i. Plaintiffs Cannot Challenge the A-G Guidelines and Policies Under the “Unbridled Discretion” Doctrine..........1106 ii. Even If Permitted, Plaintiffs’ “Unbridled Discretion” Challenge Would Fail....................................1108 2. Free Exercise and Establishment Clauses............................1108 a. Hostility Toward Religious Schools..............................1108 i. Symbolic Hostility Under the Establishment Clause ...........1109 ii. Burdensome Hostility Under the Free Exercise Clause.........1110 b. Prescription of Orthodoxy......................................1111 3. Equal Protection Clause ...........................................1112 C. Plaintiffs’ “As Applied” Constitutional Claims ...........................1112 1. Free Speech Clause................................................1112 a. Plaintiffs’ Rejected Biology Courses..............................1113 b. Plaintiffs’ Rejected History and Government Courses..............1114 c. Plaintiffs’Rejected English Course..............................1115 d. Plaintiffs’ Rejected Religion Courses.............................1116 2. Free Exercise and Establishment Clauses............................1116 a. Symbolic Hostility Under the Establishment Clause...............1116 b. Burdensome Hostility Under the Free Exercise Clause.............1118 3. Equal Protection Clause ...........................................1119 III. RULING ................................................................1119 I. BACKGROUND Defendants are the University of California (“UC”) employees responsible for developing and implementing the admissions policy by which applicants are selected to attend UC. Plaintiffs are the Calvary Chapel Christian School (“Calvary”), five Calvary students, and the Association of Christian Schools International (“ACSI”). Plaintiffs have brought suit against Defendants, alleging that the UC admissions policy is unconstitutional under the Free Speech Clause, the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. A. The UC Admissions Process Each year, UC must decide which of California’s more than 360,000 high school graduates will be admitted to attend one of UC’s ten campuses. (Defs.’ MSJ 2.) California applicants are admitted to UC only if they qualify through one or more of the following four “Paths”: Path 1: By meeting specified requirements for coursework, grade point average, and test scores. Path 2: By ranking in the top four percent at participating California high schools. Path 3: By scoring exceptionally high on standardized tests. Path J: By demonstrating the potential to succeed at UC despite not falling in any other category. (Lynch Deck No. 1 Exs. 1 (describing Paths 1, 2, and 3), 19 (describing Path 4).) About eighty-two percent of California applicants who are admitted to UC qualify only through Path 1 or Path 2. (Pis.’ Exs. 62, 64.) To qualify through Path 1 or 2, the applicant must demonstrate proficiency in seven specific subjects: (a) history and social science; (b) English; (c) mathematics; (d) laboratory science; (e) foreign languages; (f) the visual or performing arts; and (g) electives. (Lynch Deck No. 1 Exs. 4, 17.) UC refers to these seven subjects as the “A-G Subjects.” A student may demonstrate proficiency in an A-G Subject by achieving a sufficiently high grade or score: (a) in UC-approved high school courses; (b) in a college course at an accredited university; (c) on the corresponding SAT II subject test; or (d) on the International Baccalaureate or Advanced Placement exam. (Wilbur Deck ¶ 8.) Nearly all of the applicants qualifying through Paths 1 and 2 demonstrate proficiency in the A-G Subjects by taking UC-approved high school courses. (Defs.’ MSJ 4.) Plaintiffs’ constitutional claims center on UC’s method for approving high school courses. B. The A-G Guidelines For an applicant to demonstrate proficiency in the A-G Subjects through high school courses, she must take a minimum number of UC-approved courses. The number of courses a student must take to demonstrate proficiency varies by subject, ranging from a year-long course in the arts to four year-long courses in English. (Lynch Decl. No. 1 Ex. 4.) UC requires applicants to take approved courses “to make [the UC] eligibility standards substantively meaningful and to ensure that the students whom it guarantees a spot have earned their relevant grades in courses that are sufficiently rigorous to prepare the students for study at UC.” (Defs.’ MSJ 2 (citing Rashid Decl. ¶ 7).) High schools seeking course approval must provide UC with a satisfactory course description. (Defs.’ Opp’n 6; see also Lynch Decl. No. 2 Ex. 93.) The typical course description is three to five pages in length. (Pis.’ MSJ 2.) UC evaluates this course description in light of the A-G Guidelines, which provide about one page of general principles per subject area (Pis.’ Ex. 61) and hundreds of pages of examples of approved course outlines for each subject (Lynch Decl. No. 1 Ex. 2). In deciding whether to approve a course, UC reviews the submitted course descriptions to determine whether the course challenges students academically, involves substantial reading and writing, teaches critical thinking skills, emphasizes both analytical thinking and factual content, and develops students’ oral and listening skills. (Lynch Decl. No. 1 Ex. 6, at 4; Wilbur Decl. ¶ 10.) UC also seeks to ensure that the course will sufficiently prepare students for UC study. (Lynch Decl. No. 1 Ex. 6, at 4.) Courses that meet these standards are approved. However, UC will not approve courses that “fail[ ] to teach topics with sufficient accuracy and depth” or “fail[] to teach relevant analytical thinking skills.” (Defs.’ Opp’n 7.) Occasionally, UC reviews individual textbooks where the subject area is one where “selected texts tend strongly to guide course content” (such as history, mathematics, and science) and the “course outline! ] raise[s] concerns about whether the course meets faculty guidelines .... ” (Pis.’ Ex. 241.) UC does not interview the teachers, observe classroom instruction, or test the students. (Pis.’ MSJ 2.) UC does not review courses taken by applicants from out-of-state high schools (Pis.’ MSJ 2), which comprise approximately fourteen percent of the applicant pool and about nine percent of admitted students (Pis.’ Ex. 80; Wilbur Decl. No. 2 ¶ 53). C. The “A-G Policies” Plaintiffs allege that Defendants, in applying the A-G Guidelines, have established a set of binding “A-G Policies” that are used to routinely deny courses submitted by religious high schools. The official-sounding term “A-G Policies” is a label Plaintiffs created to describe what they believe are secret rules by which Defendants deny Plaintiffs’ courses. (Pis.’ Opp’n 3.) The extent to which these “A-G Policies” exist is discussed in Part II.A of this Order. Plaintiffs contend that “[t]hese policies require rejection of courses, regardless of their standard content, that add a single religious viewpoint, any instance of God’s guidance of history, or any alternative ... to evolution.” (Pis.’ Reply 1.) As evidence of these “policies,” Plaintiffs submit numerous UC Position Statements regarding the A-G Guidelines. For example, the UC Position Statement concerning history courses notifies Christian schools that they “can develop and submit for UC approval a secular history curriculum with a text and course outline that addresses course content / knowledge generally accepted in the History / Humanities / Social Sciences community.” (Pis.’ Ex. 242.) Further, Plaintiffs contend that Defendants use form language when rejecting a course because of religious perspectives. For example, when UC rejects a religious school’s biology course, it notifies the school that “[t]he content of the course outlines submitted for approval is not consistent with the viewpoints and knowledge generally accepted in the scientific community.” (Pis.’ Exs. 1, 246, 305.) Finally, Plaintiffs rely on the depositions of multiple witnesses who are responsible for reviewing courses or otherwise interpreting the A-G Guidelines. Plaintiffs claim that these depositions reveal that “UC follows a policy rejecting any course in any subject, even if it teaches standard content, if it adds teaching of the school’s religious viewpoint.” (Pis.’ MSJ 6 (citing the depositions of Susan Wilbur, Robert Sharf, James Given, Gary Nash, Mark Petracca, and Francisco Ayala).) Plaintiffs assert that religious school courses are approved at a lower rate than secular school courses because of these discriminatory policies. For example, for the 2004 school year, 56.3 percent of courses submitted by Christian schools were approved (Pis.’ Ex. 287, at 928), while 86.3 percent of courses submitted by secular schools were approved (Pis.’ Exs. 286-87). Defendants disagree, providing evidence that religious school courses are denied at about the same rate as other secular private schools. (Wilbur Decl. No. 2 Ex. 1 (graphing course approval rates for various categories of schools, including ACSI schools, “non-Catholie” private schools, and public schools).) Defendants admit to creating UC Position Statements and form rejection language, but deny Plaintiffs’ assertion that UC has a policy of “denfying] students a-g credit for otherwise acceptable courses that teach standard content and that add religious viewpoints____” (Defs.’ Opp’n 1.) D. The Parties’ Motions for Summary Judgment Now, both parties move for summary judgment. Plaintiffs seek summary judgment that the UC course review process is unconstitutional on its face and as applied to Plaintiffs. Defendants seek summary judgment on Plaintiffs’ facial claims, reserving for trial their proof that they constitutionally applied their regulations to Plaintiffs’ courses. II. DISCUSSION Summary judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A “material” fact is one that could affect the outcome of the case, and an issue of material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When evaluating a motion for summary judgment, the Court “construes the evidence in the light most favorable to the nonmoving party.” Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). Plaintiffs argue that the UC course review process on its face and as applied to Plaintiffs’ courses is unconstitutional because the review process: (1) discriminates against religious viewpoints and regulates speech based on content; (2) is overbroad; (3) provides course reviewers with “unbridled discretion”; (4) shows “hostility toward religious schools”; (5) prescribes what shall be orthodox in religion; and (6) abridges equal protection. Plaintiffs’ six claims require examination of the A-G Guidelines and the purported “A-G Policies” under the Free Speech Clause, the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause. A. The Scope of Plaintiffs’ Facial Challenge The parties disagree as to the scope of Plaintiffs’ facial challenge. Defendants argue that a facial challenge is limited to the text of the A-G Guidelines, while Plaintiffs contend that a facial challenge must include analysis of the A-G Policies. Neither party supports its argument with legal authority. In some circumstances, courts have considered the government’s authoritative interpretation of its guidelines and ordinances in a facial challenge. See, e.g., Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1035 (9th Cir.2006); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (“In evaluating respondent’s facial challenge, we must consider the county’s authoritative constructions of the ordinance, including its own implementation and interpretation of it.”). “To affect the constitutional analysis, [an authoritative interpretation] must ‘be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.’ ” Food Not Bombs, 450 F.3d at 1035 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). Through significant documentation and testimony, Plaintiffs have shown that Defendants have a well-established practice of using policies outside of the A-G Guidelines to evaluate courses. Defendants have created UC Position Statements and form language rejection letters by which they consider themselves bound. See also Ward v. Rock Against Racism, 491 U.S. 781, 795, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“[T]he city has interpreted the guideline in such a manner as to provide additional guidance to the officials charged with its enforcement.”); cf. Lakewood, 486 U.S. at 770, 108 S.Ct. 2138 (“This Court will not write nonbinding limits into a silent state statute.”). In addition, Plaintiffs ask the Court to find that Defendants have three specific A-G Policies. 1. The “Single Religious Viewpoint Policy” First, Plaintiffs contend that Defendants have a policy of rejecting courses that contain standard content, but add a single religious viewpoint. (Pis.’ MSJ 6; Pis.’ Opp’n 2; Pis.’ Reply 1.) Yet, the evidence establishes otherwise. Defendants have approved many high school courses that include religious material and viewpoints, including courses such as “The Prophetic Voice” (Hargrove Decl. Ex. 3, at 430), “Western Civilization: The Jewish Experience” (Hargrove Deck Ex. 6, at 574), and “The Bible as Literature” (Hargrove Deck Ex. 3, at 535). Western Christian Academy submitted its “Language Arts 12” course for approval as an English course. (Hargrove Decl. Ex. 3, at 459.) This course relies on a Christian textbook published by Alpha Omega Publications. (Hargrove Decl. Ex. 3, at 461.) The course description includes assignments such as “Write an essay on the Christian view of nature as demonstrated in Jesus’ use of elements of nature in His parables” and “Write an essay contrasting the Byronic manner of facing guilt with the way the Bible says Christians should deal with guilt.” (Hargrove Decl. Ex. 3, at 462.) Despite its religious content, this course was approved. (Hargrove Decl. ¶10.) Although Defendants disapprove of some Christian “science” textbooks that “prioritize religion over science” when used as the primary or sole text in an A-G Subject course (Hargrove Decl. ¶ 10), they do approve many courses that utilize these texts as secondary texts (Hargrove Decl. ¶ 14; Wilber Decl. No. 2 ¶ 7). Further, Defendants reviewed and approved some Christian textbooks for use as the primary or sole text, including Chemistry for Christian Schools and Physics for Christian Schools. (Pis.’ Ex. 100.) This indicates that Defendants are not withholding approval solely because the course includes a religious viewpoint. For example, Defendants have approved biology, physics, and chemistry courses using Christian texts, including a chemistry course taught at Calvary that utilized two texts — Modem Chemistry and Chemistry for Christians (Hargrove Decl. Ex. 5, at 565) and a biology course taught by Kings Christian High School that utilized three texts' — Biology: God’s Living Creation, Biology, and Health Biology (Hargrove Decl. Ex. 3, at 540-44). Finally, Defendants provide declarations from religious school administrators who have not perceived the discrimination about which Plaintiffs complain. For example, the Assistant Principal for Curriculum at Loyola High School of Los Angeles, a self-described “Jesuit College Preparatory” school, does not believe that “UC discriminates against Catholic high schools by denying [A-G course approval] for courses that otherwise meet UC’s academic standards but that add religious content or a religious viewpoint.” (Kozakowski Decl. ¶¶ 5-6, 9.) Also, the Director of College Guidance at New Community Jewish High School notes that “[i]n [his] experience, UC has treated New Community and its students fairly and in a non-discriminatory manner.” (Lindner Decl. ¶¶ 6-8.) Even administrators at schools that are members of ACSI have admitted that “I can’t think of any areas where I felt — I feel like Valley Christian has been treated differently because we’re a Christian institution compared to any other school.” (Lynch Decl. No. 2 Ex. 115.) Although such anecdotal evidence is of minimal value, it does lend some support to Defendants’ assertion that they hold all schools — religious or secular — to the same rigorous standards. The evidence establishes that Defendants do not have a policy of rejecting courses solely because the courses add a religious viewpoint. Plaintiffs provide no evidence of an actual policy. Instead, Plaintiffs rely on the existence of course rejections and abstract hypothetical situations posed to course reviewers and experts, and ask the Court to draw an inference of a “policy” that can be challenged facially. For example, Plaintiffs cite the deposition of Defendants’ government expert as evidence that “UC follows the policy of rejecting any course in any subject, even if it teaches standard content, if it adds teaching of the school’s religious viewpoint.” (Pis.’ MSJ 6.) The actual deposition testimony illustrates Plaintiffs’ error. Defendants’ government expert, Professor Mark Petracca, testified that any government course that presents a “single, unassailable standard for evaluating government, truth, civic and political leaders, culture, and justice” would not be considered “conventional social science” and fails to “prepare students adequately for study at UC.” (Petracca Dep. 20-21.) Professor Petracca explains in his expert report that a “single, unassailable standard,” regardless of its perspective, contradicts “the pluralistic and inquisitive approach” to the study of government “used by professors and expected of students at UC.” (Petracca Decl. Ex. A, at 2.) Indeed, Petracca elaborates that “I am not saying, either here or elsewhere, that it is inappropriate for the textbook or a course to present a Bible-based or Christian perspective on American government.” (Petracca Decl. Ex. A, at 8.) However, it is inappropriate for a college preparatory government course to present a single perspective in a manner that fails to even acknowledge that other analytical frameworks exist. (Petracca Decl. Ex. A, at 3.) Upon inspection, Plaintiffs’ conclusion premised on a few lines of Professor Petracca’s deposition does not hold. Petracca’s deposition testimony is completely consistent with his expert report. Plaintiffs must show more than the “mere existence of a scintilla of evidence ...; there must be evidence on which the jury could reasonably find” for Plaintiffs. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“[Plaintiffs] must do more than simply show that there is some metaphysical doubt as to the material facts.... ”). Accordingly, there is no genuine issue of material fact as to this issue. Defendants do not have a “well-established practice” of rejecting courses that contain standard content, but add a single religious viewpoint. 2. The “History and Social Science Policy” Second, Plaintiffs contend that Defendants have a policy of rejecting history and social science courses that “add a Christian god” or that are “limited to one denomination or viewpoint.” (Pis.’ MSJ 9-13.) To the contrary, Defendants provide evidence of approved history courses taught from the perspective of a single religious denomination. (Wilbur Decl. No. 2 ¶¶ 33, 42; Hargrove Decl. ¶ 16, Ex. 6.) In addition to the “Western Civilization: The Jewish Experience” course described above, UC approved courses such as Sierra Christian Academy’s “World History” course, which seeks to “understand!] and appreciate[] the beginnings of Western Civilization from a Judeo-Christian point of view” (Hargrove Decl. Ex. 6, at 592), and Valley Christian High School’s “Ancient World History” course, which “eover[]s the time frame of Creation through the Reformation” (Hargrove Decl. Ex. 6, at 597 (emphasis added)). Further, Defendants explain that the mention of God in the explanation of a historical event does not “automatically disqualify a course for approval.” (Given Decl. ¶ 5 (noting that supernatural-based explanations of history do not “automatically disqualify a course for approval,” but “excessive reliance” on these explanations may prevent approval).) Rather, the focus is on whether the course as a whole meets the UC standards. (Wilbur Decl. No. 2 ¶ 32 (“[T]he mention of God as the explanation of [a] historical event may or may not cause rejection of a course for [history] credit, depending on whether the course, as a whole, meets the UC faculty’s expectations for college preparatory history....”).) Again, there is no genuine issue of material fact as to this issue. Defendants do not have a “well-established practice” of rejecting history courses because they “add a Christian god” or “one religious perspective.” 3. The “Science Policy” Finally, Plaintiffs contend that Defendants have a policy of rejecting biology courses that, in addition to evolution, contain topics such as theistic evolution, intelligent design, creation, or weaknesses of evolution. (Pis.’ MSJ 13-17.) Again, Defendants deny this allegation, explaining that biology courses may include scientific discussion of the weaknesses of evolution, creationism, or intelligent design. (Wilbur Decl. No. 2 ¶ 43 (“A biology course could be approved for [science] credit if it included both an adequate treatment of the theory of evolution and discussion of creationism.”).) For example, biology courses that use Christian texts that discuss perceived weaknesses of evolution, creationism, and intelligent design as supplemental texts can and have been approved. (Wilbur Decl. No. 2 ¶ 7; Hargrove Decl. Ex. 3, at 540-44 (approving Kings Christian High School’s biology course, which used A Beka’s Biology: God’s Living Creation as a supplemental text).) Once more, there is no genuine issue of material fact as to this issue. Defendants do not have a “well-established practice” of rejecting biology courses that add theistic evolution, intelligent design, creation, or weaknesses of evolution. In evaluating Plaintiffs’ facial challenge, the Court will consider the A-G Guidelines, the UC Position Statements, and form rejection language (collectively referred to as the “A-G Guidelines and Policies”). B. Plaintiffs’ Facial Constitutional Claims Plaintiffs have brought a variety of constitutional claims against Defendants. They claim that the A-G Guidelines and Policies are unconstitutional on their face because these regulations violate rights guaranteed to religious schools under: (1) the Free Speech Clause; (2) the Free Exercise Clause; (3) the Establishment Clause; and (4) the Equal Protection Clause. Each clause is addressed in turn. 1. The Free Speech Clause Plaintiffs allege that the A-G Guidelines and Policies abridge their freedom of speech because the regulations: (1) discriminate based on viewpoint and content; (2) are overbroad; and (3) grant Defendants unbridled discretion. a. Viewpoint Discrimination and Content Regulation Plaintiffs vigorously attack the A-G Guidelines and Policies as viewpoint discrimination and content regulation. According to Plaintiffs, “UC policies, confirmed by hundreds of course rejections, discriminate by viewpoint and are content-based in regulation.” (Pis.’ Reply 3.) Plaintiffs’ briefs rely on Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and other public forum cases as the cornerstone of their argument, insisting that “ ‘[viewpoint discrimination is ... an egregious form of content discrimination’ ” (Pls.’ MSJ 4 (quoting Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510)) and that “ ‘[discrimination against speech because of its message is presumed to be unconstitutional’ ” (Pls.’ MSJ 21 (quoting Rosenberger, 515 U.S. at 828, 115 S.Ct. 2510)). Yet, not all content-based regulations are subject to strict scrutiny. The Supreme Court has repeatedly rejected a heightened standard where the government is providing a public service that by its nature requires evaluations of, and distinetions based upon, the content of speech. See, e.g., United States v. Am. Library Ass’n, 539 U.S. 194, 204-05, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998); cf. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-73, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) (generalizing that governmental functions that require content-based judgments, such as selecting programming for a public television station, are not subject to heightened scrutiny). Instead, these regulations are constitutional if they are reasonably related to the government’s goal of providing the public service and are not the product of government animus. See Am. Library, 539 U.S. at 208, 123 S.Ct. 2297 (“It is entirely reasonable for public libraries ... to exclude certain categories of content....”); Finley, 524 U.S. at 587, 118 S.Ct. 2168 (“The [government’s] mandate is to make aesthetic judgments, and the inherently content-based ‘excellence’ threshold for [government] support sets it apart from the subsidy at issue in Rosenberger ....”); Forbes, 523 U.S. at 673-75, 118 S.Ct. 1633 (cautioning against heightened scrutiny when the government necessarily makes content-based determinations). In Arkansas Education Television Commission v. Forbes, the Supreme Court stressed that public television stations generally hold broad editorial discretion to select their content. 523 U.S. at 674, 118 S.Ct. 1633 (“[T]he nature of editorial discretion counsels against subjecting [public] broadcasters to claims of viewpoint discrimination.”). Public broadcasters are required to schedule programming that serves the “public interest, convenience, and necessity.” Id. at 674, 118 S.Ct. 1633 (citing 47 U.S.C. § 309(a)). In fulfilling this duty, a public broadcaster engages in speech activity by “facilitating the expression of some viewpoints instead of others.” Forbes, 523 U.S. at 674, 118 S.Ct. 1633. The Supreme Court identified additional situations in which a public entity’s action necessarily facilitates the expression of some viewpoints to the exclusion of others. For example, “a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, [and] a public school prescribing its curriculum ....” Id. In these situations, heightened scrutiny “would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.” Id. Scrutinizing a public station’s discretionary decisions would be particularly problematic because “even principled exclusions rooted in sound journalistic judgment can often be characterized as viewpoint-based.” Id. In United States v. American Library Ass’n, the Supreme Court recognized that public libraries “must have broad discretion to decide what material to provide to their patrons.” 539 U.S. at 204, 123 S.Ct. 2297 (holding that libraries may reasonably refuse to provide patrons with pornography). In exercising their broad discretion, public libraries necessarily make content-based judgments. Id. (“[Libraries collect only those materials deemed to have requisite and appropriate quality.”). Therefore, public libraries may exclude materials based upon content. Id. at 208, 123 S.Ct. 2297 (“The librarian’s responsibility ... is to separate out the gold from the garbage, not preserve everything.”). In National Endowment for the Arts v. Finley, the Supreme Court held that a government agency could make aesthetic judgments in allocating competitive funding for art projects that demonstrated “excellence.” 524 U.S. at 586, 118 S.Ct. 2168. After all, determinations of “excellence” are “inherently content-based.” Id. Because limited funding was allocated according to a competitive process, the Supreme Court specifically noted that reliance on Rosenberger was “misplaced.” Id. The distribution of grants in Finley is the closest parallel to the UC admissions process. In both scenarios, the government is providing a public benefit that is allocated to a limited number of persons through a competitive process. Like the government agency that must judge the excellence of prospective art projects, UC must judge the excellence of prospective students who apply for a guaranteed spot at UC. It is undisputed that the content of an applicant’s high school courses is an important factor in evaluating the merit of that applicant. According to defense expert Dr. Michael Kirst, the content of high school courses is a “crucial variable in predicting whether students will succeed at very selective post-secondary institutions such as the University of California.” (Kirst Decl. Ex. A, at 2.) Plaintiffs’ experts concur that it is “educationally reasonable” for Defendants to condition admittance on content and skill requirements. For example, Dr. Donald Erickson, one of Plaintiffs’ education experts, finds it reasonable for UC to expect admitted students to know, among other things, about “plants,” “evolution,” “accurate carbon dating,” and “the roles of Latinos in United States history.” (Lynch Decl. No. 1 Ex. 57.) Dr. Derek Keenan, another of Plaintiffs’ education experts, testified that “critical thinking and analysis skills are legitimate concerns of [UC] in evaluating student preparation.” (Lynch Decl. No. 1 Ex. 63.) According to Dr. Keenan, “it’s educationally appropriate for [UC] to set standards for the content and skills that need to be mastered for students to attend” (Keenan Dep. 46-47), and “high school course content is an important factor in student preparation for college work” (Keenan Dep. 47). Still, Plaintiffs argue that Forbes, American Library, and Finley “do not apply to [UC] admissions decisions and do not apply to [UC’s] rejections of private school courses,” yet provide no principled reason to depart from the reasoning of these cases. First, Plaintiffs argue that Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004), in which a speech regulation was declared unconstitutional, essentially overruled American Library. To the contrary, the Ashcroft opinion cites American Library with approval. Id. at 669, 124 S.Ct. 2783. Although both the Ashcroft and American Library regulations concerned Internet speech, that is the sole similarity. The differences are instructive. The statute in Ashcroft criminalized private speech made in a context in which there is no need for content-based judgments. Id. at 660, 124 S.Ct. 2783 (“Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.”). On the other hand, the regulations in American Library did not prohibit or criminally punish speech; they merely limited the speech that a public library made available to the public in a manner consistent with its duty to funnel limited resources toward the most beneficial materials. 539 U.S. at 208, 123 S.Ct. 2297. The A-G Guidelines and-Policies also do not prohibit or criminally punish speech, and the need to evaluate the excellence of each UC applicant requires content-based judgments. Next, Plaintiffs argue that Finley “involved government ... regulation of its own grant standards, not private speech.” (Pls.’ Opp’n 26 n. 8.) Yet, the regulations that Plaintiffs challenge impact private speech in precisely the same manner as Finley. One could just as easily frame the A-G Guidelines and Policies as “government regulation of its own college admissions standards, not private speech.” Both here and in Finley, the government evaluates, but does not prohibit, private speech in an effort to award benefits based upon a competitive process. Finally, Plaintiffs futilely attempt to distinguish Forbes by incorrectly characterizing the decision as one involving “a public school prescribing its curriculum.” (Pis.’ Opp’n 26 n. 10.) Forbes did not involve a public school; it involved a public television station. 523 U.S. at 674, 118 S.Ct. 1633. In Forbes, the Supreme Court analogized a public television station’s selection of its programming to a public school’s selection of its curriculum, recognizing that both scenarios require the government to make content-based evaluations of private speech. Id. The importance of Forbes is not its specific factual scenario, but its general principles related to content-based judgments and the problems inherent in scrutinizing those discretionary judgments. Accordingly, the A-G Guidelines and Policies must be analyzed under Finley, while heeding the Supreme Court’s warning in Forbes that judicial forays into the exercise of discretion are problematic. Heightened scrutiny is inappropriate here. If the A-G Guidelines and Policies are rationally related to the goal of selecting the most qualified students for admission, they do not violate the First Amendment’s guarantee of free speech. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n. 12, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (“Discretion to determine, on academic grounds, who may be admitted to study [is] one of ‘the four essential freedoms’ of a university.”) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978)). i. The A-G Guidelines and Policies Must Be Rationally Related to UC’s Educational Goal of Admitting Qualified Students. It is undisputed that UC can reasonably reject courses that either (1) fail to teach important topics with sufficient accuracy and depth of coverage or (2) fail to teach relevant analytical skills. Now, the Court must consider whether the contested A-G Guidelines and Policies reasonably apply this standard, both substantively and procedurally. Because the test of reasonableness “is not capable of precise definition or mechanical application,” its proper application “requires careful attention to the facts and circumstances of each particular case.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Still, the rational basis test is extremely deferential to the government and the states. Rational basis review “is not a license for courts to judge the wisdom, fairness, or logic” of government regulation. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (“[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.”). Accordingly, government regulation is “accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). “[T]he burden is on the one attacking the [regulation] to negative every conceivable basis which might support it.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). (a) Are the A-G Guidelines and UC Position Statements Substantively Reasonable? Plaintiffs challenge the text of the A-G Guidelines and the following UC Position Statements: (1) the UC Position Statement on Religion and Ethics Courses; (2) the UC Position Statement on Science Courses; and (3) the UC Position Statement on History and Social Science Courses. (1) UC Position Statement on Religion and Ethics Courses UC advises schools that, in order to receive A-G Subject credit, courses in religion or ethics should “treat the study of religion or ethics from the standpoint of scholarly inquiry rather than in a manner limited to one denomination or viewpoint” and “should not include among its primary goals the personal religious growth of the student.” (Pis.’ Ex. 243.) Defendants have offered expert testimony from Professor Sharf defending this policy. Professor Sharf explains that the UC policy reflects the scholarly approach taken in the discipline of religious studies. “One of the methodological foundations of the [discipline] is the ability to step back and gain intellectual and emotional distance from the subject matter. (Sharf Deck Ex. A, at 3.) By focusing on their own personal religious growth, students lack the “basic critical skill” required for academic study of religion — the ability to take a more observer-independent view. (Sharf Deck Ex. A, at 13.) Professor Sharf finds the Position Statement on Religion and Ethics Courses to be reasonable because “scholarly detachment is requisite for the unbiased analysis into the nature of religious phenomena.” (Sharf Deck Ex. A, at 4.) Plaintiffs provide no evidence that the Position Statement on Religion and Ethic Courses is facially unreasonable, submitting only deposition testimony from Professor Daniel Guevara. While Professor Guevara opines that several rejected religion courses are “excellent” or “amazing” (Guevara Dep. 88, 93), he never challenges Professor Sharf s support for the Position Statement. Instead, Professor Guevara only claims “I don’t see that [a goal of religious growth] would spoil” a course for UC approval. (Guevara Dep. 124.) This conclusion with no factual basis does not meet Plaintiffs’ burden to show a genuine issue as to whether they can negate “every conceivable basis which might support” the Position Statement. See Lehnhausen, 410 U.S. at 364, 93 S.Ct. 1001. Other evidence submitted by Plaintiffs recognizes that “it is crucial that the distinction between religious studies and theology — between teaching and preaching — be maintained in higher and secondary education.” (Pls.' Ex. 414, at 141.) “It is important to draw a sharp distinction ... between studying a religion as an academic enterprise and thinking about the divine on behalf of one’s religious community.” (Pls.’ Ex. 414, at 141.) Accordingly, there is no genuine issue of material fact as to this issue. The UC Position Statement on Religion and Ethics Courses is reasonable. (2) UC Position Statements on Science and History Courses Plaintiffs base their claims against the UC Position Statements on Science and History Courses on the false assertion that these Position Statements require a secular curriculum without religious viewpoints. (Pis.’ MSJ 11 (“In other words, there must be a ‘secular history curriculum’ without religious viewpoints.”), 16 (“The [Science] Position Statement also means that only a ‘secular science curriculum’ (no religious viewpoint added) is approved.”).) Yet, the Position Statements do not use the word “must”; rather, they use the word “can” (Pis.’ Exs. 241-42), indicating that a “secular” curriculum is not mandatory for approval. Indeed, as discussed in Part II.A, Defendants have approved numerous science and history courses that incorporate religious viewpoints. The rest of the Position Statements reinforce the purpose of the A-G Guidelines: Admitted students must attain “essential critical thinking and study skills,” “the necessary preparation for courses, majors, and programs offered at [UC],” and “a body of knowledge that will provide breadth and perspective to new, more advanced studies.” (Pls.’ Exs. 241-42.) There is no genuine issue of material fact as to this issue. The UC Position Statements on Science and History Courses are reasonable. (b) Are the Reviewers Qualified? Plaintiffs insinuate that the UC employees charged with reviewing high school courses are not sufficiently qualified to implement the A-G Guidelines and Policies. According to Plaintiffs, “[course] review is by staff reviewers in the Office of the President, who with one exception have only college degrees and not more than a single college course in each subject. UC’s review is not by faculty members except in rare cases when they are sent a questioned course.” (Pis.’ MSJ 2.) Defendants counter that each reviewer is provided with guidance for course review decisions, such as “subject matter descriptions, interpretive notes elaborating on these descriptions, [examples] of approved courses, competency standards and more.” (Defs.’ Opp’n 25 (citing Lynch Decl. No. 1 Ex. 2).) Further, UC reviewers can and do obtain additional guidance by consulting with other UC employees with specialized subject-area knowledge, including faculty. (Hargrove Decl. ¶¶ 3, 6 (“UC faculty members with PhDs review courses and textbooks about which staff reviewers have questions.”); Lynch Decl. No. 2 Ex. 92.) In addition, Defendants contest Plaintiffs’ allegation that course reviewers have limited educations, noting that “[s]ome of the UC staff reviewers also have post-bachelor’s degrees, and most of the staff reviewers have had more than one college course in the subjects reviewed.” (Hargrove Decl. ¶ 6.) There is no genuine issue of material fact here. The course reviewers are reasonably guided and qualified to make course approval determinations. (c) Is the UC Course Review Process Unreasonably “Probabilistic”? Plaintiffs complain that the UC course review process is “only ‘probabilistic,’ approving some poor courses where students do not learn and rejecting some good courses where students do learn.” (Pls.’ MSJ 2.) “Because UC reviews only course descriptions, it cannot know how a teacher will teach a course; a bad outline could be taught well, or a good outline could be taught poorly.” (Pls.’ MSJ 2.) UC admits the probabilistic nature of its course review process. (Defs.’ Opp’n 6 (“Given the impracticability of observing all classes, the course review process is necessarily ‘probabilistic’ .... ”); Tr. Hr’g 62 (“There’s no certainty to [the course review process], ... but all of the experts agree that it’s a reasonable way to do it.”).) Under the deferential rational basis standard “courts are compelled ... to accept [the government’s] generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. The government may act if there is “a rational basis for doing so ..., even if it ‘is probably not true’ that those reasons are valid in the majority of cases.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). A regulation does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911)). “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913). Here, there is no dispute that it is reasonable for UC to ensure that its admitted students took courses likely to have prepared them adequately for academic study. (Kirst Decl. Ex. A, at 1 (“Studies have found that the most important college preparation is the acquisition of sufficient content and critical thinking skills in high school courses.”); Erickson Dep. 51-52 (“[UC has the right to determine] what content students should know before they come to UC.”); Keenan Dep. 47 (“[C]ritical thinking and analysis skills are legitimate concerns of [UC] in evaluating student preparation.”).) In addition, both parties agree it is better for UC to have more information about applicants than less, and that course descriptions give UC more information about course content than titles alone. UC “relies upon an adequate syllabus (prepared by the teacher) as an indicator that the course will adequately prepare students, and a poor syllabus (again, prepared by the teacher) as an indicator to the contrary.” (Defs.’ Opp’n 6 (citing Lynch Decl. No. 2 Ex. 93).) Although this process is not certain, it is reasonable. (See Kirst Decl. Ex. A, at 10 (concluding that the UC course review process “is a reasonable and effective way to bridge the gap between high school and college”).) There is no genuine issue of material fact here. The UC course review process is not unreasonably probabilistic. (d) Is Reviewing Only California High School Courses Reasonable? Plaintiffs claim that the unreasonableness of the A-G Guidelines and Policies are evident in Defendants’ failure to require out-of-state applicants to take UC-approved courses. (Pis.’ MSJ 3.) To the contrary, it is reasonable for UC to limit its course review on California schools. Graduates of California high schools make up more than ninety percent of UC applicants. (Wilbur Decl. No. 1 ¶ 4.) “It would be unreasonably burdensome to expect UC to review courses from all schools in the United States.” (Defs.’ Opp’n 6.) Just because UC does not make individualized determinations where it would not be feasible to do so, does not discredit the determinations UC does make. See Am. Library, 539 U.S. at 208, 123 S.Ct. 2297 (noting that a public library’s inability to evaluate all Internet content does not diminish its discretion to evaluate other materials). There is no genuine issue of material fact here. It is reasonable for UC to require approval for California high school courses, but not for out-of-state high schools. Accordingly, the A-G Guidelines and Policies survive rational basis review. ii. Defendants Cannot Implement Regulations Because of Animus Toward Religion. Even If Those Regulations Are Rationally Related to UC’s Educational Purpose. Even if the A-G Guidelines and Policies are rationally related to UC’s educational purpose, Plaintiffs can still prevail if they demonstrate that the regulations are the result of government animus towards religious viewpoints. In Finley, the Supreme Court repeatedly emphasized that the government may not punish disfavored viewpoints under the guise of legitimate regulations. 524 U.S. at 587, 118 S.Ct. 2168 (“[T]he Government may not ‘aim at the suppression of dangerous ideas’....”) (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 540, 550, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)); id. (“[A] more pressing constitutional question would arise if government [regulation was] calculated to drive ‘certain ideas or viewpoints from the marketplace.’ ”) (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)); id. (“If the [government] were to leverage its power to [regulate speech] into a penalty on disfavored viewpoints, then we would confront a different case.”). Although there is no guidance from the Ninth Circuit or the Supreme Court regarding government animus in the specific arena of free speech, two Supreme Court decisions have addressed the issue in the context of the Free Exercise Clause: Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), and Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004). In Lukumi, the plaintiffs challenged a city ordinance that targeted the Santería religion under the guise of a legitimate regulation on animal slaughter. 508 U.S. 520, 113 S.Ct. 2217. Leaning on “the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general,” the Supreme Court invalidated the ordinance because it was not neutral and it was not a law of general applicability. Id. at 532, 113 S.Ct. 2217. In Locke, the plaintiff challenged a state scholarship program that was available to all qualifying college students except for those “pursuing a degree in theology.” 540 U.S. at 716, 124 S.Ct. 1307. Over Justice Scalia’s vigorous dissent, the Supreme Court extended the Lukumi test to require an element of animus, even if the government regulation was not neutral. Id. at 724, 124 S.Ct. 1307 (“Far from evincing the hostility toward religion which was manifest in Lukumi, [the scholarship program] goes a long way toward including religion in its benefits.”); see also id. at 731, 124 S.Ct. 1307 (Scalia, J., dissenting) (“The Court makes no serious attempt to defend the program’s neutrality....”). Requiring strict scrutiny solely because a government regulation was not neutral “would extend the Lukumi line of cases well beyond not only their facts but their reasoning.” Id. at 720, 124 S.Ct. 1307. Although decided under the Free Exercise Clause, Lukumi and Locke guide this Court’s analysis of Plaintiffs’ claim under the Free Speech Clause. The animus requirement is equally applicable whether the government is punishing disfavored viewpoints or disfavored religious practices. In this case, importing the test used in free exercise cases is particularly appropriate because Plaintiffs complain of discrimination against religious speech. Cf. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 767, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (observing that “private religious expression receives preferential treatment under the Free Exercise Clause”); Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (invalidating restrictions on religious speech under both the Free Speech and Free Exercise Clauses). Here, the A-G Guidelines and Policies are more like the scholarship program in Locke than the criminal prohibition in Lukumi. In Locke, the Supreme Court noted that the challenged scholarship program was distinguishable from the invalidated criminal statute in Lukumi in three fundamental ways. First, the scholarship program imposed a “far milder” burden on religion. 540 U.S. at 720, 124 S.Ct. 1307. Second, the scholarship program went “a long way” to include religion. Id. at 724, 124 S.Ct. 1307. Finally, the history of the ordinance did not reveal animus toward religion. Id. at 725, 124 S.Ct. 1307. The Supreme Court upheld the scholarship program even though it expressly discriminated against theology majors. The A-G Guidelines and Policies share the same critical distinctions found in Locke. First, any burden on religious schools or their students is mild, particularly when compared to the heavy criminal penalties at stake in Lukumi. UC does not penalize students for taking non-approved courses or attending schools that teach non-approved courses. Should a student attend a religious school that does not offer approved courses in the A-G Subjects, that student may demonstrate proficiency in a number of alternative ways. Second, UC “goes a long way” to accommodate religious school students. Defendants offer students alternative ways of demonstrating proficiency in the A-G Subjects (see Part I.A) and offer religious schools personalized assistance in creating currículums that would earn approval. (Pls.’ Ex. 240 (UC Position Statement) (“[UC] is happy to provide additional assistance to high schools, including Christian schools, through a collaborative consultation process, in order to help the schools create course outlines that meet the faculty’s ‘a-g’ course requirements.”).) Finally, there is little in the history of the A-G Guidelines and Policies to demonstrate that Defendants were motivated by an improper purpose. Plaintiffs’ best evidence of animus is their characterization of the deposition testimony from the former chair of the UC board responsible for the A-G Guidelines and Policies, Michael Brown, that the “subtext” of Defendants’ discussion in adopting the UC Position Statement on science was “antagonism toward the Christian schools,” and that religious schools’ “right wing perspectives were highly objectionable.” Brown’s actual deposition testimony was as follows: Q: Did the emotional tenor of any others on the BOARS committee in your view reflect antagonism toward the Christian schools or what they taught? A: It was my assessment that that was the subtext. It wasn’t that anybody ever said they’re Christian schools, we ain’t approving them, but I had the sense that their feelings about radical or fundamentalist ... right wing perspectives were highly objectionable. (Brown Dep. 143 — 44.) Even construing this evidence in the light most favorable to Plaintiffs, Brown’s testimony is insufficient to create a genuine issue of material fact. Brown’s “assessment” and “sense” that the committee was antagonistic is of little value without concrete factual support. In addition, the power of Plaintiffs’ quotation is tempered by their omission of the words “radical” and “fundamentalist.” These adjectives suggest the Board’s “feelings” concerned extreme views inconsistent with knowledge generally accepted in the relevant academic community rather than antagonism toward religion. Further, Brown admitted in his deposition that his “assessment” did not apply to the entire board. (Brown Dep. 144 (“Most [board members] were quiet.... Trying to, in my view, reason it out.... I was actually honored by that. I really appreciated being in that context to see [board members] trying to grapple with it.”).) An email Brown sent to the board after the allegedly antagonistic discussion confirms his appreciation: “I remain deeply appreciative of the tenor of [the] discussion ... regarding the issue of approving science courses ... submitted from ‘Christian’ schools.... I thought the [board members] participated in a frank, thoughtful, and sensitive manner.” (Pis.’ Ex. 157.) These facts stand in stark contrast to those in Lukumi, where the animus was “manifest.” See Locke, 540 U.S. at 724, 124 S.Ct. 1307. There, “the record ... compelled] the conclusion that suppression of the central element of the Santería worship service was the object of the [city] ordinance.” 508 U.S. at 534, 113 S.Ct. 2217. First, the penalties were stiff. Violators of the ordinance could be imprisoned for up to sixty days and fined up to $500. Id. at 528, 113 S.Ct. 2217. Second, the ordinances were aimed at “one of the principal forms of devotion” in the Santería worship, animal sacrifice. Id. at 524, 113 S.Ct. 2217. Finally, “[t]he burden of the ordinance, in practical terms, [fell] on Santería adherents but almost no others.” Lukumi, 508 U.S. at 536, 113 S.Ct. 2217. The city had made no attempt to address the issue of animal killing until after a Santería church announced its plans to open within the city. Id. at 541, 113 S.Ct. 2217. Taped excerpts of a city meeting at which the issue was addressed “evideneefd] significant hostility [from] residents, members of the city council, and other city officials toward the Santería religion.” Id. A few examples of the comments in Lukumi provide a sharp distinction from Brown’s “sense” of antagonism: Crowd members cheered statements made by council members that were critical of Santería and taunted members of the Santería church. Id. One councilman said that Santería devotees “are in violation of everything this country stands for” and another asked “[w]hat can we do to prevent the Church from opening?” Id. A city official told the city council that Santería was a sin, “foolishness,” “an abomination to the Lord,” and the worship of “demons” and urged the city council “not to permit this Church to exist.” Id. at 541-42, 113 S.Ct. 2217. Also, the city attorney commented that the ordinance indicated that “[t]his community will not tolerate religious practices which are abhorrent to its citizens.” Id. at 542, 113 S.Ct. 2217. Given the Supreme Court’s caution against extending Lukumi too far beyond its facts, Locke, 540 U.S. at 720, 124 S.Ct. 1307, there is no genuine issue of material fact as to this issue. Defendants were not motivated by animus in setting the A-G Guidelines and Policies. b. Overbreadth Plaintiffs argue that the UC course review process is facially overbroad under the Free Speech Clause. The overbreadth doctrine is an “exception from general standing rules” that allows a plaintiff to seek facial invalidation of a law that “sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected,” even if that law is constitutional as applied to the plaintiff. Forsyth County, 505 U.S. at 129-30, 112 S.Ct. 2395. This doctrine recognizes that “the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court.” Id. at 129, 112 S.Ct. 2395. To succeed on their overbreadth claim, Plaintiffs must show that the A-G Guidelines and Policies “punish a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003