558 F.2d 848 (8th Cir. 1977), 76-1656, Gay Lib v. University of Missouri

Docket Nº:76-1656.
Citation:558 F.2d 848
Party Name:GAY LIB, Lawrence A. Eggleston, Individually and as an employee of the University of Missouri and as a member of the Executive Board of Gay Lib, Darrell Napton, Individually and as a graduate student of the University of Missouri and as a member of the Executive Board of Gay Lib, Sarah MacNamara, Individually and as an undergraduate student of the
Case Date:June 08, 1977
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 848

558 F.2d 848 (8th Cir. 1977)

GAY LIB, Lawrence A. Eggleston, Individually and as an

employee of the University of Missouri and as a member of

the Executive Board of Gay Lib, Darrell Napton, Individually

and as a graduate student of the University of Missouri and

as a member of the Executive Board of Gay Lib, Sarah

MacNamara, Individually and as an undergraduate student of

the University of Missouri and as a member of the Executive

Board of Gay Lib, and Doug Hudson, Individually and as an

undergraduate student of the University of Missouri and as a

member of the Executive Board of Gay Lib, Appellants,


The UNIVERSITY OF MISSOURI, C. Brice Ratchford, Individually

and as President of the University of Missouri, Irwin Fane,

Pleasant R. Smith, Mrs. William C. Tucker, Howard Woods,

William C. Myers, Jr., William F. Thompson, John S.

Williamson and Van O. Williams, Individually and as members

of the Board of Curators of the University of Missouri, Appellees.

No. 76-1656.

United States Court of Appeals, Eighth Circuit

June 8, 1977

Submitted Feb. 17, 1977.

As Amended on Denial of Rehearing En Banc Aug. 8, 1977.

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Lawrence Kaplan, St. Louis, Mo., for appellants.

James S. Newberry, Columbia, Mo., for appellees; Jackson A. Wright, Marvin E. Wright and Ted D. Ayres, St. Louis, Mo., on brief.

Before LAY and WEBSTER, Circuit Judges, and REGAN, [*] District Judge.

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LAY, Circuit Judge.

The issue before us is whether officials of a state university may lawfully withhold formal recognition of a student organization, comprised largely of homosexuals, whose basic purpose is to provide a forum for discussion about homosexuality. Gay Lib, an organization at the University of Missouri, and four of its members appeal from the denial of their request for injunctive relief by the United States District Court for the Western District of Missouri, the Honorable Elmo T. Hunter, presiding. 1 In denying the 42 U.S.C. § 1983 claim the district court sustained the University administration's refusal to recognize Gay Lib as a campus organization. 2 The court conceded that the question was a close one, but ruled that the school officials justified their action on the ground that recognition of Gay Lib would probably result in the commission of felonious acts of sodomy in violation of Missouri law. 3 The district court also rejected plaintiffs' claim that nonrecognition denied them equal protection of the laws.

On appeal, plaintiffs contend: (1) that the district court erred in holding that plaintiffs' First Amendment rights were not impermissibly infringed; and (2) that the action of the defendants deprived plaintiffs of equal protection of the law. We reverse.

Factual Background.

Formal recognition of a student organization by the University of Missouri entitles the group to use campus facilities for meetings and to apply for financial support from student activities funds. Written University policies with respect to recognition of campus groups provide that:

Groups are recognized on the basis of their own statements as to name, aims, nature and program. $ $ $

Recognition of an organization by the Committee does not constitute approval or endorsement of the organization's aims and activities * *.

Gay Lib began its efforts to gain formal recognition in early 1971. In accordance with established University procedures, the group submitted a petition for recognition to the Missouri Students Association (MSA). A statement of purposes accompanying the petition set forth the proposed organization's aims as follows:

(a) To provide a dialogue between the homosexual and heterosexual members of the university community.

(b) To dispel the lack of information and develop an understanding of the homosexual at the University of Missouri.

(c) To alleviate the unnecessary burden of shame felt by the local homosexual population.

(d) To help education, the community and the homosexual to understand the social roles that the homosexual now plays in the community.

(e) To work closely with established university and community groups for a broader sharing of knowledge and information.

Both the MSA Rules Committee and the Senate approved Gay Lib's petition. The matter was then referred to the Committee

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on Student Organizations, Government and Activities (SOGA), which was comprised of students and faculty. While the matter was pending before SOGA, Gay Lib submitted a revised, more detailed statement of purposes. 4

In December, 1971, SOGA voted to recommend recognition of Gay Lib. The recommendation, however, was vetoed by Edwin Hutchins, then Dean of Student Affairs. Hutchins based his veto on "a concern for the impact of recognition on the general relationship of the University to the public at large." 5

Gay Lib appealed the nonrecognition decision to successive levels of the University hierarchy, ending with the President of the University. Each level sustained Hutchins' ruling. 6 Thereafter, Gay Lib appealed the decision to the University's Board of Curators. The Board consolidated the appeal with a related matter arising out of the University of Missouri at Kansas City, and appointed a hearing officer, Cullen Coil, a Jefferson City attorney and former Commissioner of the Missouri Supreme Court, to develop the facts. At the hearings substantial lay and expert testimony was adduced. Following the hearings, Coil recommended that the University deny formal recognition to the organization. 7 Subsequently, the

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Board denied Gay Lib's appeal, adopting the following resolution:

Be it hereby resolved that the Board of Curators of the University of Missouri concurs with and hereby adopts the Hearing Officer's Recommended Findings of Fact made by the Honorable Cullen Coil and further makes the following specific findings of fact:

  1. The Gay Lib movement as exemplified by the Gay Lib Organization at UMC and the Gay People's Union at UMKC is premised upon homosexuality being normal behavior, contrary to the further findings herein.

  2. A homosexual is one who seeks to satisfy his or her sexual desires by practicing some or all of the following: fellatio, cunnilingus, masturbation, anal eroticism and perhaps in other ways.

  3. Homosexuality is a compulsive type of behavior.

  4. There are potential or latent homosexuals, i. e. persons who come into adolescence or young adulthood unaware that they have homosexual tendencies, but who have fears of sexual relations with a member of the opposite sex.

  5. What happens to a latent or potential homosexual from the standpoint of his environment can cause him to become or not to become a homosexual.

  6. That homosexuality is an illness and should and can be treated as such and is clearly abnormal behavior.

  7. Certain homosexual practices violate provisions of Section 563.230 of the Revised Statutes of Missouri.

  8. That formal recognition by the University of either or both the proposed Gay Lib and Gay People's Union will:

    (The Board of Curators here adopted verbatim Mr. Coil's above-cited conclusions as to the effect of formal recognition.)

    Plaintiffs filed this civil rights action to compel the University to formally recognize Gay Lib, alleging that nonrecognition infringed their First Amendment freedom of association and denied them equal protection. By stipulation of the parties, the transcript of the hearings held at the direction of the Board of Curators, as well as the exhibits introduced at those proceedings, were admitted into evidence. The district court also received depositions of three medical doctors taken by the parties. No other evidence was presented.

    First Amendment.

    Although the district court denied plaintiffs relief, Judge Hunter, recognizing Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), stated:

    (T)he University, acting here as an instrumentality of the State, has no right to restrict speech or association "simply because it finds the views expressed to be abhorrent."

    416 F.Supp. at 1370, quoting Healy, supra 408 U.S. at 187, 92 S.Ct. 2338. 8

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    Since the Supreme Court's decision in Healy, the First and Fourth Circuits have sustained the rights of groups similar to Gay Lib to sponsor social functions involving the use of university facilities, Gay Students Org. of Univ. of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974); and to register as a student organization. Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976). The analytical discussion offered by these two courts strongly supports recognition of Gay Lib here. 9

    Notwithstanding these decisions, defendants assert that the record in this case contains expert medical testimony which provides a legal justification for withholding formal recognition from Gay Lib. They argue, and the district court found, that recognition of Gay Lib would likely result in imminent violations of Missouri sodomy laws. 10

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    The district court placed reliance on the testimony of two psychiatrists, Dr. Harold Voth and Dr. Charles Socarides. Dr. Voth testified that formal recognition would tend to "perpetuate" or "expand" homosexual behavior. However, on cross-examination, Dr. Voth further testified that his conclusion was "an inference," and "(t)here is no way in the world for me or anyone else to know." Dr. Socarides stated that he believed "that wherever you have a convocation of homosexuals, that you are going to have increased homosexual activities which, of course includes sodomy." He concluded that "any gathering would certainly promote such sexual contact."

    Also relevant to the district court's determination was the medical opinion proffered by defendants' experts that homosexual behavior is compulsive. However, as...

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