Gay Alliance of Students v. Matthews, s. 75-2359 and 75-2360

• Decision Date: 28 October 1976
• Docket Number: Nos. 75-2359 and 75-2360,s. 75-2359 and 75-2360
• Citation: 544 F.2d 162
• Parties: GAY ALLIANCE OF STUDENTS, an unincorporated association, Appellant, v. Alfred T. MATTHEWS, Individually, and as Dean of Student Life at Virginia Commonwealth University, et al., Appellees. GAY ALLIANCE OF STUDENTS, an unincorporated association, Appellee, v. Wyndham B. BLANTON, Jr., Individually and as a present member of the Board of Visitors at Virginia Commonwealth University, et al., Appellants, and Alfred T. Matthews, Individually, and as Dean of Student Life at Virginia Commonwealth University, et al., Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 162

544 F.2d 162

GAY ALLIANCE OF STUDENTS, an unincorporated association, Appellant, v. Alfred T. MATTHEWS, Individually, and as Dean of Student

Life at Virginia Commonwealth University, et al.,

Appellees.

GAY ALLIANCE OF STUDENTS, an unincorporated association, Appellee, v. Wyndham B. BLANTON, Jr., Individually and as a present

member of the Board of Visitors at Virginia

Commonwealth University, et al., Appellants,

and

Alfred T. Matthews, Individually, and as Dean of Student

Life at Virginia Commonwealth University, et al.,

Defendants.

Nos. 75-2359 and 75-2360.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1976.

Decided Oct. 28, 1976.

Richard E. Crouch, Arlington, Va. (John M. McCarthy, Richmond, Va., on brief), for appellant in 75-2359 and for appellee in 75-2360.

Walter H. Ryland, Asst. Atty. Gen. of Virginia, Richmond, Va. (Andrew P. Miller, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellees in 75-2359 and for appellants in 75-2360.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and MARKEY, ^* Associate Judge.

WINTER, Circuit Judge:

The Gay Alliance of Students (GAS), an unincorporated association of students at Virginia Commonwealth University (VCU), sued the Board of Visitors and certain administrative officers of VCU, seeking to obtain registration as a student organization and the attendant privileges of registration, which it alleged that defendants had declined to grant. The district court concluded not to decree registration, but it did direct that GAS be given certain privileges of registration, but not all. Both parties appeal.

To the extent that the district court granted relief, we affirm except in a minor respect. To the extent that the district court denied relief, we reverse. We remand for the entry of an appropriate decree.

I.

GAS is an association of students, organized September 1, 1974, the stated purposes of which are (a) to develop a supportive community among individuals who believe in the right of self-determination with regard to sexual orientation, (b) to convene educational situations for members of GAS and for members of the university community regarding homosexual life, and (c) to advocate "gay" rights in concert with the civil liberties of all people. GAS disavows any purpose to provide professional counseling or therapy for persons having emotional or psychological problems arising out of or exhibited by specific sexual proclivities or patterns of sexual behavior. While the majority of its members are bisexual or homosexual in orientation, there is no membership requirement of a particular sexual orientation. Together with providing educational activities and discussion opportunities, GAS conducts social activities, including dances.

After GAS was formed, its members submitted to the VCU Office of the Dean of Student Affairs an application for registration as a student organization. The application, with revisions suggested by VCU's administration, was filed at the beginning of the fall term of 1974 in accordance with VCU's rules and regulations governing the registration of student organizations. Registration, if granted, carries with it these rights and privileges:

(a) Inclusion in a directory, furnished to each student, setting forth the names and activities of student organizations which a student may join;

(b) the furnishing of VCU consultation services on financial management, budget preparation and financial records;

(c) the use of VCU buildings for meetings and activities;

(d) the use of the campus newspaper, the campus radio station, ¹ and the VCU bulletin boards to advertise the time and place of meetings and activities; and

(e) eligibility to seek and obtain VCU funding for carrying on activities. ²

The application was not processed in the usual manner. It was referred to the Vice President for Student Affairs who forwarded it to VCU's governing body, The Board of Visitors, for ultimate decision. That body, by a split vote, rejected it without assigning reasons for its action. The GAS application was the only application to have been rejected, and it is the only application to have been submitted to the Board of Visitors. Currently, VCU has registered approximately 95 student organizations and in its history it has recognized 125-130 student organizations, some having political objectives.

Because the Board of Visitors assigned no reasons for its resolution denying registration, the parties have stipulated that the Board was motivated by the following:

1. As a matter of logic, the existence of GAS as a recognized campus organization would increase the opportunity for homosexual contacts.

2. Recognition of GAS would tend to encourage some students to join the organization who otherwise might not join.

3. Some students may benefit from membership in GAS and some may not, and to some it would confer neither benefit nor detriment.

4. The existence of GAS would tend to attract other homosexuals to VCU. ³

In stipulating VCU's reasons for denying registration, the parties stipulated further that the record (depositions, affidavits and admissions in pleadings) contained evidence to support these conclusions and that the district court should not substitute its appraisal of the evidence for that of VCU. The stipulation also recited that "(t)he trial court may consider any beneficient (sic) effects flowing from registration."

The district court found that there was no cognizable constitutional deprivation imposed by the withholding of recognition per se. However, the court did order that VCU provide GAS with access to VCU physical facilities for organizational meetings and activities; access to the campus newspaper space and campus radio broadcast time for advertisements pertaining to group activities, meetings, etc.; use of VCU official bulletin boards for posting notices pertaining to organizational activities; sufficient space for the operation of an orientation booth during semester registration; and a listing of the name and description of GAS in the student directory. In view of the fact that VCU was not to be required officially to recognize GAS, the Court added that "(w)e defer to the Board's discretion (in) resolution of the practical difficulties involved with properly designating GAS in the Student Directory and otherwise, in such a way as to conform to the Court's holding." The district court refused to require VCU to provide GAS with two other concomitants of formal recognition the right to consultation services on financial management, budget preparation, etc., and the right to make application for funds through the Appropriations Board.

II.

At the outset, we state what this case is not. There is neither claim nor evidence that GAS as such engages in unlawful activities. So far as this record establishes, it is, at most, a "pro-homosexual" political organization advocating a liberalization of legal restrictions against the practice of homosexuality and one seeking, by the educational and informational process, to generate understanding and acceptance of individuals whose sexual orientation is wholly or partly homosexual.

GAS correctly posits its claim to registration upon the first amendment associational rights of its members. Healy v. James, 408 U.S. 169, 183, 92 S.Ct. 2338, 2347, 33 L.Ed.2d 266 (1972), makes clear that, in the context of the scope of protection which the first amendment affords to associational rights on a state-supported college campus, "the Constitution's protection is not limited to direct interference with fundamental rights." Quoting from Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960), the Court added: "(f)reedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference."

Consistent with Healy and Bates, we thus reject VCU's argument that the members of GAS have suffered no infringement of their associational rights because all that has been withheld is VCU's official seal of approval. Absent registration, there are admittedly no direct barriers to the members of GAS continuing to meet, to discuss the problems which homosexuals face, and to take lawful action to ameliorate some of these problems. But VCU concedes that a lack of recognition will hinder its recruitment efforts as well as to deny it VCU's services which are afforded to other registered student organizations. These denials are within the scope of Healy, ⁴ and therefore we conclude that there has been a denial of first amendment rights unless there is justification for the refusal of registration.

We turn therefore to VCU's purported justification for denying registration and the sequelae of registration.

III.

One of VCU's reasons for denying the application was that granting recognition to GAS would increase the number of students who would join the organization. The premise of the argument is that registration of GAS would indicate VCU approval of GAS's aims and objectives and thus serve as an encouragement to students to join who might otherwise be disinterested in becoming members. Factually and legally, we disagree that registration would connote VCU approval of GAS's aims and objectives. First, VCU's registration of the large variety of other political, social and cultural organizations carries with it no approval by VCU of their aims and objectives. Indeed, an administrator of VCU testified flatly that "the registration and recognition of an organization does not, in any sense, carry with it approval or endorsement of the organization's aims." Second, we held in National Socialist White People's Party v. Ringers, 473 F.2d 1010, 1015 (4 Cir. 1973) (in banc), that when, under the compulsion of the first amendment, the state provides state-supported facilities to groups having discriminatory membership policies, state approval or support of those policies is not thereby...