Gay and Lesbian Students Ass'n v. Gohn

• Decision Date: 23 March 1987
• Docket Number: Civ. No. 86-5052.
• Citation: 656 F. Supp. 1045
• Parties: GAY AND LESBIAN STUDENTS ASSOCIATION, An Unincorporated Association, Plaintiff, 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, Defendants.
• Court: U.S. District Court — Western District of Arkansas

656 F. Supp. 1045

GAY AND LESBIAN STUDENTS ASSOCIATION, An Unincorporated Association, Plaintiff, 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, Defendants.

Civ. No. 86-5052.

United States District Court, W.D. Arkansas, Fayetteville Division.

March 23, 1987.

COPYRIGHT MATERIAL OMITTED

Clayton Blackstock and Marcia Barnes, of Mitchell and Roachell, Little Rock, Ark., for plaintiff.

Fred H. Harrison, Gen. Counsel, University of Arkansas, Little Rock, Ark., Ginger P. Crisp, Associate Gen. Counsel, University of Arkansas, Fayetteville, Ark., C.R. McNair, III, Asst. Atty. Gen., Little Rock, Ark., for defendants.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This is an action for declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. The court has jurisdiction under the provisions of these sections and 28 U.S.C. § 1343(3) and (4).

Plaintiff is the Gay and Lesbian Students Association (GLSA).¹ Defendant, Lyle Gohn, is sued in his individual and official capacity as Chancellor for Student Services at the University of Arkansas, Fayetteville. Defendants, 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, are sued in their official capacities as members of the Board of Trustees of the University of Arkansas.

GLSA brought this action after they were denied funding by the student senate. Plaintiff asserts that funding is a basic benefit that stems from the constitutional right of registration as a student organization. In addition, plaintiff contends that the denial of funding constitutes a "content based" discrimination against GLSA for its exercise of its rights of association and free speech under the First and Fourteenth Amendments. Finally, GLSA contends that its right to Equal Protection under the Fourteenth Amendment has been violated.

The University of Arkansas is a publicly funded university governed by a Board of Trustees.² Campus governance of students is generally by means of the Associated Student Government (ASG) which was established and its organization adopted by members of the student body. ASG exists pursuant to a constitution, approved at its inception by the Board of Trustees. ASG was formed to accord students the opportunity to participate in decisions affecting them, to provide needed services for students and to further the best interests of the University of Arkansas and its student body. Under article 2, section 4, of the ASG Constitution, the student senate has the power to appropriate all monies and to require an accounting of funds received and appropriated from the student service funds, which consists of all monies allocated thereto by the Board of Trustees.

GLSA is a properly registered student organization at the University of Arkansas, Fayetteville. A registered student organization has the use of university facilities, is listed in university publications, and is allowed to use the university name in publicity and press releases.³ Registration is a prerequisite to eligibility to request "B" funds.⁴ Basically the process consists of filing a request for appropriation of funds with the finance committee, the finance committee then makes a recommendation to the senate, which by vote approves or denies the funding requests. Groups requesting funds are required to have a member present at the senate meeting when the vote is taken. The "A" Book provides for an appeal from the funding decision to the Vice-Chancellor for Student Services.

Both parties agree to the following facts: In January, 1983, the student senate did not appropriate "B" funds for GLSA and on appeal to the Vice-Chancellor for Student Services, Lyle Gohn, this action was upheld.⁵ In 1984, GLSA requested and received "B" funds. This funding was apparently in a "package" with other student organizations. In the spring of 1985, the student senate passed a bill which was vetoed by the president. The bill would have prohibited any future funding of GLSA.⁶ In the fall of 1985, GLSA was denied funding by a vote of the senate.⁷ On appeal, the denial was upheld by Lyle Gohn.⁸ At trial and through its briefs, plaintiff relates and relies on various other allegedly discriminatory acts carried out by members of the student body or community.⁹

Upon these facts the plaintiff asserts that the University, through its Vice-Chancellor, the Board of Trustees and the ASG, curtailed its fundamental rights of free association and free speech and violated the Equal Protection Clause.

The University relies on a threefold defense. Initially, the defendants contend that the action is moot since each funding period is separate and distinct and plaintiff has not sought funds since the fall of 1985. Secondly, defendants argue that the state action prerequisite to a Fourteenth Amendment constitutional claim is not present. The defendants urge the court to find that the actions of the student government are distinct from those of the University itself, thus, there is no state action; that the only role played by administrators is creation of the source of funding as part of the overall University budget, and consideration of funding appeals. Finally, it is the University's contention that the First Amendment rights of the plaintiff were not infringed by the denial of funding and that the procedures as now set up serve legitimate state purposes. The procedure allows the student senate the ultimate decision in funding the projects of student organizations based on the senators' own evaluations as to how beneficial and educational the projects are to the University community as a whole.

I. Mootness

Article III operates as a limit on the jurisdiction of the federal courts; the courts may decide only actual cases or controversies. A case is regarded as moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." U.S. Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969)). It is from this requirement that the ban on advisory opinions has developed. The controversy requirement of the Declaratory Judgment Act is identical with that of Article III of the Constitution. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1974).

A case is regarded as moot if it raised a justiciable controversy at the time the complaint was filed, but subsequent events have deprived the litigant of a personal stake in the controversy. Nowak, Rotunda, Young, Constitutional Law § IV, at 65. In determining whether the case is moot the court looks to see whether the opinion will affect the rights of the litigants before it. Amalgamated Association of St. Elec. Ry. and Motor Coach Employees of America, Division 998 v. Wisconsin Employment Relations Board, 340 U.S. 416, 71 S.Ct. 373, 95 L.Ed. 389 (1951). Furthermore, the controversy must be one for which the court can fashion specific and conclusive relief. Aetna, supra, 300 U.S. at 240-41, 57 S.Ct. at 463-64. The Supreme Court in Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982), stated that "the question was no longer live because even a favorable decision on it would not have entitled Hunt the petitioner to relief." Id. at 481-82, 102 S.Ct. at 1183.

The mootness doctrine is regarded as a mixture of constitutional limitations and prudential considerations which are based largely on public policy. The Supreme Court has recognized several exceptions to this doctrine which operate to mitigate its harshness, to prevent either party from depriving the court of jurisdiction, and to enable certain cases involving controversies of relatively short duration to be heard by the court. The two main exceptions are voluntary cessation by the defendant and situations where the controversy is regarded as "capable of repetition, yet evading review." The latter exception applies in the context of this case.

Under this exception, to avoid being determined moot, there must be a "reasonable expectation" or a "demonstrated probability" that the petitioner will again be subjected to the same alleged violation. Murphy, supra, at 482, 102 S.Ct. at 1183; Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). Generally,

in the absence of a class action, the "capable of repetition, yet evading review" doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.

Weinstein, 423 U.S. at 149, 96 S.Ct. at 349.

Both parties cite the following cases: Carson v. Pierce, 719 F.2d 931 (8th Cir.1983); United Indians of Nebraska v. Donovan, 702 F.2d 673 (8th Cir.1983); Dyer v. SEC, 251 F.2d 512 (8th Cir.1958), vacated, 359 U.S. 499, 79 S.Ct. 1115, 3 L.Ed.2d 976, judgment recalled, 361 U.S. 803, 80 S.Ct. 40, 4 L.Ed.2d 52 (1959). Dyer involved the review of an order of the SEC which permitted the company involved to use a certain declaration in the solicitation of proxies for use at a shareholders meeting. Dyer, supra, at 513. As the Eighth Circuit notes, the sole purpose of the proceeding was to prevent the company from soliciting proxies for the April 20, 1957, meeting because of the alleged omission of certain proposals submitted by petitioners...