Gay and Lesbian Students Ass'n v. Gohn, s. 87-1486
| Decision Date | 18 August 1988 |
| Docket Number | 87-1569,Nos. 87-1486,s. 87-1486 |
| Parties | , 47 Ed. Law Rep. 500 GAY AND LESBIAN STUDENTS ASSOCIATION, an Unincorporated Association, Appellee, v. Lyle GOHN, Individually and in his Official Capacity as Vice-Chancellor for Student Services at The University of Arkansas, Fayetteville; Hugh B. Chalmers; Jack L. Williams; Hall McAdams; Kaneaster Hodges; Gus Blass; Morris Andrew Jackson; W. Sykes Harris, Sr.; W. Maurice Smith, Jr.; Jim Blair; and Sandy Ledbetter, in their Official Capacities as Members of the Board of Trustees of the University of Arkansas, Appellants. GAY AND LESBIAN STUDENTS ASSOCIATION, an Unincorporated Association, Appellant, v. Lyle GOHN, Individually and in his Official Capacity as Vice-Chancellor for Student Services at The University of Arkansas, Fayetteville; Hugh B. Chalmers; Jack L. Williams; Hall McAdams; Kaneaster Hodges; Gus Blass; Morris Andrew Jackson; W. Sykes Harris, Sr.; W. Maurice Smith, Jr.; Jim Blair; and Sandy Ledbetter, in their Official Capacities as Members of the Board of Trustees of the University of Arkansas, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Nan D. Hunter, New York City, for GLSA.
Fred H. Harrison, Little Rock, Ark., for Gohn et al.
Before LAY, Chief Judge, and McMILLIAN and ARNOLD, Circuit Judges.
The Gay and Lesbian Students Association of the University of Arkansas at Fayetteville brought this Sec. 1983 action after its funding request was denied by the Student Senate. The GLSA alleged that it was denied funds because of the content of its message, in violation of the First Amendment. The District Court ruled that while the case was not moot, and state action was present, the GLSA's First Amendment right of free speech was not violated by the Senate's action. 656 F.Supp. 1045. The GLSA now appeals the Court's decision on the speech issue, and the University appeals its rulings on mootness and state action. 1 We hold for the GLSA on all three questions.
In brief, we hold that a public body that chooses to fund speech or expression must do so even-handedly, without discriminating among recipients on the basis of their ideology. The University need not supply funds to student organizations; but once having decided to do so, it is bound by the First Amendment to act without regard to the content of the ideas being expressed. This will mean, to use Holmes's phrase, that the taxpayers will occasionally be obligated to support not only the thought of which they approve, but also the thought that they hate. That is one of the fundamental premises of American law.
The University of Arkansas is a publicly funded university governed by a Board of Trustees. 2 Student government is carried out through an organization called the Associated Student Government (ASG), which was created by a constitution adopted by the Board of Trustees in 1943. Under this constitution the Student Senate, the legislative branch of the ASG, has been delegated the function of appropriating money from student service funds to student organizations, subject to administrative approval. These funds come from tuition, state tax money, and general fees collected from students.
The GLSA has been a registered student organization on the Fayetteville campus of the University since 1983. Its stated purpose then and now is to educate people about homosexuality and to provide a support group for homosexuals. The group's typical activities include sponsoring workshops, films, and panel discussions on homosexuality. As a registered student organization, the GLSA is entitled to certain benefits, such as using University facilities for its meetings and projects, and being listed in University publications.
Registered student organizations also have the right to petition the Student Senate for University funds. A group may apply for "A" funds to supply large, ongoing enterprises like the school newspaper, or "B" funds to support special needs or projects. "B" funds are often granted for speech-related purposes. For example, Amnesty International used "B" funds to sponsor films, and the Nuclear Awareness Group used them to bring in a speaker. The denial of "B" funds is at issue in this case.
To receive "B" funds, a student group must first submit an application to the Finance Committee of the Student Senate. The Committee reviews the application, checking to see whether the group complies with the criteria laid out in the constitution. If one of these technical requirements 3 is not met, the group's request is rejected, usually with an explanation attached. After this initial objective evaluation, the Committee then determines whether the group's planned events would be educational and would benefit the entire community. 4 Besides accepting or rejecting the funding requests, the Finance Committee may also modify them. For example, the Committee may strike from the application requests for office supplies, or change the estimate of the cost of obtaining a film. The Committee delivers its recommendations to the Senate, which then votes on them. Though time is set aside at the Senate meeting to discuss and debate the funding requests, receiving a recommendation from the Finance Committee has historically been tantamount to being funded.
The GLSA first applied for "B" funds in January of 1983 in order to present two films and hold a panel discussion. The Finance Committee recommended it receive $136.00. Senate debate on the measure was described as "heated." Transcript at 107. One Senator argued, Gohn Dep. Exhibit 15. However, another remarked, "Why is it that this group is being subjected to a review ... [when] [o]ther groups on campus who request funding are not treated like this." Id. The proposal was defeated by a vote of 35 to 17.
The GLSA appealed to Lyle Gohn, Vice Chancellor for Student Services and the official charged with oversight of student organizations. Gohn denied relief, stating "I would hope that you ... would accept the decision of your fellow student senators." Plaintiff's Exhibit 30. He disavowed knowledge of why the Senate voted the way it did. 5 The GLSA next appealed to then-Chancellor B.A. Nugent. He claimed to "have no evidence that discrimination was present among those who voted against funding," and that "[d]etermining the motives or rationale of the individual student senators ... has no relevancy." Plaintiff's Exhibit 33. He believed that the Senate made its choice on purely fiscal considerations. 6 Finally, the GLSA took its case to the Vice President for Academic Affairs, Charles Oxford. He too denied the appeal, finding no "procedural error." Plaintiff's Exhibit 34.
During this same period of time, the Arkansas State Legislature was in session. Representative Travis Dowd of Texarkana introduced two resolutions dealing with state universities and homosexuals. The first, House Resolution 16, urged the University "to refrain from assisting in any manner the gay community on campus." The second, House Resolution 25, went further, urging University officials "not only [to] refrain from assisting in any manner whatsoever the homosexual community of their campuses, but to institute any and all lawful measures to stem the tide of homosexuality on the campuses of our colleges and universities." Plaintiff's Exhibit 31. Both resolutions were narrowly defeated in committee. Gohn was aware of the resolutions, and kept copies of them in the same file where he stored his correspondence with the GLSA. Transcript at 105.
In the fall of 1984 the GLSA again applied for "B" funds and secured the approval of the Finance Committee. However, the procedure the Committee followed in submitting funding recommendations to the Senate was different that year. Funding requests were put before the Senate in packages, so that three or four were voted on at a time. Thus, the GLSA's application was presented along with several others. Various Senators did attempt to separate out the GLSA's request. However, despite what was described as a "horrible," "emotional," and "vulgar" debate, these parliamentary maneuvers failed, and the GLSA received $70.00 that fall. Transcript at 38, 48.
Campus reaction to the GLSA's receipt of $70.00 was swift and severe. The Student Senate passed a rule prohibiting the funding of any group organized around sexual preference. 7 The measure was vetoed by the ASG president, who called it discriminatory, and analogized it to seemingly reasonable laws once used to disenfranchise blacks. Plaintiff's Exhibit 24. She was particularly appalled that such an attitude would be found at a university, "traditionally [a] place[ ] of open-mindedness and growth." Id.
Events on campus did not escape the notice of University officials or state legislators. In June of 1985 University officials, including the President and two members of the Board of Trustees, met with a dozen state representatives and senators in Fayetteville. It appears that the funding of the GLSA was discussed, and that all present were concerned about the adverse publicity that funding the GLSA had brought to the University.
Later in June of 1985, Chancellor Willard Gatewood attended a meeting about the University's Staff Development Program. Discussion centered on a series of workshops on stereotyping and prejudice to be held in the fall. The workshops, designed around seven vignettes, were to be held for University faculty and staff. One of the scenarios was about homosexuality. Gatewood told members of the group that no state money would go to the...
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