Christian Student Group May Require Officers to Abide by “Christian Tenets,” For Now
 
February 15, 2006
 

The Seventh Circuit recently issued an injunction against a state university, the Southern Illinois University at Carbondale, forcing the University to recognize the Christian Legal Society (CLS) as a student organization (Christian Legal Society v. Walker). CLS requires its members to agree to and affirm a Statement of Faith that CLS interprets as precluding a person from being a member or officer of CLS if that person engages in homosexual conduct or adheres to the viewpoint that homosexual conduct is not sinful.

The University claimed that CLS’ stance on homosexuality violated the university’s affirmative action policy and, alternatively, unspecified federal/state antidiscrimination laws. The University’s affirmative action policy stated: “It is the policy of Southern Illinois University at Carbondale to provide equal employment and education opportunities for all qualified persons without regard to … religion, … sexual orientation, or marital status.” Additionally, the University had the policy that “no student constituency body or recognized student organization shall be authorized unless it adheres to all appropriate federal or state laws concerning nondiscrimination and equal opportunity.”

As a consequence of CLS’ alleged violations, the University revoked CLS’ student organization status, a status that allowed CLS access to law school bulletin boards, private meeting space within the law school, storage space within the law school, law school Web site and publication access, email access on the law school’s list-serve, eligibility for certain funding through the law school and use of the University’s name.

Subsequently, CLS sued the University claiming violations of its First Amendment rights. Additionally, it sought preliminary injunctive relief to restore its status as a recognized student organization pending the resolution of its underlying claims. The United States District Court for the Southern District of Illinois denied CLS’ request for a preliminary injunction and CLS appealed.

On appeal, the Seventh Circuit reversed the lower court, holding that CLS was reasonably likely to succeed on the merits of the underlying lawsuit, that CLS had no adequate remedy at law, and that CLS was suffering irreparable injury.

In determining that CLS was suffering irreparable injury, the Court relied on the holding in Healy v. James, 408 U.S. 169 (1972), where the U.S. Supreme Court held that a public university’s refusal to confer official student organization status on a Students for a Democratic Society chapter violated the students’ First Amendment right to free association. In Healy, the Supreme Court held that a public university must bear the “heavy burden” of justifying a denial of recognition because such denial constituted a “form of prior restraint.” The Court emphasized that the loss of the right to use campus facilities for meetings was the “primary impediment to free association flowing from nonrecognition.” Additionally, the Supreme Court noted that the loss of access to campus bulletin boards and the student newspaper as modes of communication were “impediments [that] cannot be viewed as insubstantial.”

Regardless of the fact that CLS was permitted use of the law school’s classrooms, campus coffee shops, or any other facilities it chose, with the exception of use of the auditorium for which CLS would have had to pay a small fee (facts that the lone dissenting judge, Judge Wood, relied on in his dissent), the Seventh Circuit found that CLS was suffering irreparable injury because it did not have access to campus bulletin boards, private meeting space, storage space, a faculty advisor, the University Web site, university publication, and email access. The Seventh Circuit held that the University had not met its burden of justifying this irreparable injury. The Court noted that while a university’s interest in maintaining order and preventing disruption or violence might constitute a sufficient justification for such an injury, an affirmative action/antidiscrimination policy does not rise to that level.

The Seventh Circuit also held that CLS was reasonably likely to succeed on the merits of its underlying lawsuit because, in part, it was unclear what law or policy CLS violated. The Court noted that CLS was not an “employer” and did not constitute an “educational opportunity” offered by the University, the terms used in the Affirmative Action Policy. The Court also noted that the University did not inform CLS which federal and/or state law CLS was accused of violating. In dicta, the Court stated that if the university considered CLS in violation of a public accommodations/antidiscrimination law, then requiring compliance “on pain of revocation of student organization status” was violative of Boy Scouts of America v. Dale, 530 U.S. 640 (2000), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

Ultimately, the Seventh Circuit granted CLS’ request for an injunction; however, the outcome of the underlying case is yet to be decided. It is the underlying lawsuit that will have the most effect on educational institutions; however, the Seventh Circuit’s analysis regarding CLS’ likelihood of success on the merits and its dicta regarding a violation of a public accommodations/antidiscrimination law are telling. It appears that the Seventh Circuit feels that a public university’s prohibition of an organization’s use of any school-sponsored method of communication or expression constitutes a cognizable infringement of that organization’s First Amendment rights and, therefore, the university bears the heavy burden of justifying that infringement, a burden that may not be satisfied by an affirmative action/antidiscrimination policy.

For more information, e-mail Kirsten Brown at kirsten.brown@hklaw.com or call toll free, 1-888-688-8500.