Gay Activists Alliance v. Board of Regents of University of Oklahoma, 52739

• Decision Date: 22 December 1981
• Docket Number: No. 52739,52739
• Citation: 638 P.2d 1116
• Parties: 2 Ed. Law Rep. 259, 1981 OK 162 The GAY ACTIVISTS ALLIANCE, Appellant, v. The BOARD OF REGENTS OF the UNIVERSITY OF OKLAHOMA, a body corporate; Paul Sharp, President of the University of Oklahoma; Bob Mitchell; K. D. Bailey; Richard Alan Bell; Dee A. Replogle, Jr.; Charles F. Engleman and Mack Braly, Appellees.
• Court: Oklahoma Supreme Court

Page 1116

638 P.2d 1116

2 Ed. Law Rep. 259, 1981 OK 162

The GAY ACTIVISTS ALLIANCE, Appellant, v. The BOARD OF REGENTS OF the UNIVERSITY OF OKLAHOMA, a body corporate; Paul Sharp, President of the University of Oklahoma; Bob Mitchell; K. D. Bailey; Richard Alan Bell; Dee A. Replogle, Jr.; Charles F. Engleman and Mack Braly, Appellees.

No. 52739.

Supreme Court of Oklahoma.

Dec. 22, 1981.

Appeal from the District Court, Cleveland County; Alma B. Wilson, District Judge, Presiding.

An action brought in District Court of Cleveland County to require the University of Oklahoma to recognize a student organization wherein it is alleged the association had fulfilled all prerequisites for recognition under the applicable rules of the University. Additionally, monetary damages for the subsequent failure to grant recognition was sought under 42 U.S.C. § 1983.

Glenn Rawdon, Rawdon & Salem, Norman, for appellant.

Kurt F. Ockershauser, Stanley M. Ward, Susan Seamans, Legal Counsel, Norman, for appellees.

HARGRAVE, Justice.

On October 5, 1976, the Gay Activists Alliance (GAA) an association of students duly enrolled in the University of Oklahoma, submitted an application for recognition as a student organization by the University of Oklahoma Student Association to the University's student Attorney General as required by Section 13 of the Constitution of the University of Oklahoma Student Code of Responsibility and Conduct (the Code). Section 13 of the Code provides:

Groups of students who wish to form an organization may do so by fulfilling the following requirements:

A. A group of ten or more students may apply for the recognition of a new student organization on the appropriate application form to be obtained from the attorney general.

B. The completed application form, together with two copies of the by-laws, is filed with the attorney general, who shall recommend action in the Student Congress.

C. All changes and amendments to the constitution or by-laws must be submitted within one week after they become effective.

D. Before any organization may be considered for recognition, it must obtain an advisor who is a fulltime member of the faculty or staff.

Pursuant to this section, the application was accompanied by a list of names of more than ten students, by the name of the faculty advisor, and by the copies of the GAA by-laws. The application was filed with and was accepted by the student Attorney General and was submitted for approval to the University of Oklahoma Student Association Congress (Student Congress). On October 26, 1976, the Student Congress refused to recognize the GAA as a student organization.

On November 16, 1976, the GAA was again refused recognition by the Student Congress, whereupon the GAA appealed the decision of the Superior Court to the University of Oklahoma Judicial Tribunal. The Tribunal issued a requested writ of mandamus, directed the Student Congress to recognize the GAA, and censured the Superior Court for failing to follow the order of the Tribunal.

On January 3, 1977, despite the Tribunal's directive to recognize the GAA, the Student Congress failed to grant recognition and the Congress itself appealed the Tribunal's order to the Office of the President. The then acting President, Barbara Vehling, referred the matter to the University's Board of Regents through the Student Affairs Committee. The Board of Regents is the authorized governing body of the University. Okla.Const.Art. 13, § 8; 70 O.S. §§ 3301 et seq.

On February 10, 1977, the Regents, meeting as a Board, heard a debate of the recognition issue and rejected a motion for recognition. The Board is the highest body of appeal within the university system and is the final administrative authority with regard to the university. The plaintiff GAA had then exhausted all administrative remedies. On February 15, 1977, relief was sought by the GAA in the District Court of Cleveland County, Oklahoma.

The GAA and its president, John Mehring, alleging a denial of constitutional rights and a violation of civil rights, brought suit against the Board of Regents, ¹ a body corporate, and the members of the Board of Regents as individuals, seeking alternatively a writ of mandamus requiring the defendants to recognize the GAA as an official student organization of the university or a mandatory injunction enjoining the defendant Board from failing to recognize the GAA. Actual damages in the amount of $10,000 and punitive damages in the amount of $100,000 were sought in addition to attorney's fees in the amount of $2,500. The only evidentiary hearing occurred on February 25, 1977, as a hearing on the issue of the propriety of a temporary injunction. The parties submitted the case on exhibits and written stipulations of fact.

On August 10, 1978, the presiding judge, The Honorable Alma Wilson, entered a memorandum opinion denying the injunction and the requested damages. Thereupon the GAA on September 11, 1978, appealed to this Court seeking a reversal of the District Court's decision and alleging that the denial of recognition of the GAA violated GAA members' First and Fourteenth Amendment rights and that the GAA members were entitled to damages for such violations.

Fourteenth Amendment equal protection rights were not presented or briefed by either party and therefore the Constitutional argument is limited to a discussion of First Amendment rights as incorporated through the due process clause of the Fourteenth Amendment. DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).

The GAA argues that the denial of recognition as a student organization by the University Regents violates its constitutionally guaranteed First Amendment rights of speech and assembly and as such the penumbral right of association, which does not trace its origin to the cultural or legal heritage of this country but rather owes its existence to Supreme Court interpretations of the First Amendment. See NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958). Although the Supreme Court has never addressed the question of the denial of recognition in the context presented today, it has addressed the question of the denial of recognition and its impact on these constitutionally-protected rights in Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), and has framed and determined what this Court considers the issue to be in the case at bar. It is not, as the District Court has stated, whether there is a constitutional guarantee against discrimination with reference to sexual orientation or sex preferences. It is instead whether constitutional guarantees found in the First Amendment are violated when student organizations, after complying with university procedural requirements, are denied recognition due to the content of the message espoused by the organization.

In Healy v. James, supra, a group of students attending Central Connecticut State College, a state-supported institution, desired to form a local chapter of Students for a Democratic Society (SDS), and sought recognition by the college. The institution's president disagreed strongly with the destructive and violent philosophies advocated by the national SDS and refused to recognize a local chapter. The Supreme Court ruled that "(t)he mere disagreement of the President with the group's philosophy affords no reason to deny its recognition. As repugnant as these views may have been ... the mere expression of them would not justify the denial of First Amendment rights. Whether petitioners did in fact advocate a philosophy of 'destruction' thus becomes immaterial. The college, acting here as the instrumentality of the state, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent." Id. at 187-88, 92 S.Ct. at 2349-50.

The language of the Healy opinion is instructive in resolving the constitutional issue at bar, since the language is applicable to all student organizations whether socially motivated or politically motivated or both when associational rights have been abridged. Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). In Healy, Mr. Justice Powell stated that "(a)mong the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs," 408 U.S. at 181, 92 S.Ct. at 2346, and that "(w)hile the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly and petition." Id.

Mr. Justice Powell added that "(t)here can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right." Id. (emphasis added). In Healy, the students were denied not only the use of campus facilities for meetings and other appropriate purposes but also the use of customary campus media for communicating with the administration, faculty members, and other students. The respondents in Healy argued that the students' ability to meet off campus demonstrated a lack of interference with the students' fundamental rights but the Supreme Court rejected the argument by not limiting the Constitution's protection to direct interference and by stating that "the group's possible ability to exist outside the campus community does not ameliorate significantly the disabilities imposed by the President's action." Id. at 183, 92 S.Ct. at 2347.

The Court, aware that the students had filed the application for recognition in conformance with the college's procedural requirements, stated that "the burden was upon the college administration to justify its decision of rejection." Id. at 184, 92 S.Ct. at 2347. "(T)he effect of the college's denial of recognition was a form of prior restraint ... (and that) (w)hile a college has a...