Academic journal article Harvard Law Review

Constitutional Law - First Amendment - Seventh Circuit Holds That Public University Cannot Refuse to Recognize Student Group Based on Group's Violation of School Nondiscrimination Policy

Academic journal article Harvard Law Review

Constitutional Law - First Amendment - Seventh Circuit Holds That Public University Cannot Refuse to Recognize Student Group Based on Group's Violation of School Nondiscrimination Policy

Article excerpt

CONSTITUTIONAL LAW--FIRST AMENDMENT--SEVENTH CIRCUIT HOLDS THAT PUBLIC UNIVERSITY CANNOT REFUSE TO RECOGNIZE STUDENT GROUP BASED ON GROUP'S VIOLA-TION OF SCHOOL NONDISCRIMINATION POLICY.--Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).

Universities have struggled in recent years to accommodate the conflicting goals of facilitating free association among students and eradicating discrimination on campus. (1) In an effort to provide equal access to campus resources for all students, many universities have established nondiscrimination policies. (2) Courts have repeatedly grappled with the intersection of these nondiscrimination policies and student organizations' desires to shape the composition of their memberships. (3) Recently, in Christian Legal Society v. Walker, (4) the Seventh Circuit faced this conflict directly: when a public university withdrew recognition from a Christian student organization that excluded homosexuals from full membership in possible violation of the university's nondiscrimination policy, the organization filed suit, arguing that the university unconstitutionally infringed upon the organization's rights of expressive association and free speech. On appeal from the preliminary injunction decision, the court determined that Christian Legal Society was likely to prevail on its expressive association and free speech claims. (5) Although the court had the commendable aim of preventing the exclusion of religious student groups from campus life, it dramatically overstated the effects of derecognition in an effort to find a constitutional violation and thereby avoided considering to what extent public universities may condition the receipt of state funds on adherence to a nondiscrimination policy.

Southern Illinois University's School of Law (SIU), a public law school, invites student organizations to apply for official recognition. (6) Recognition provides several benefits to student groups: access to the law school e-mail list and campus bulletin boards, inclusion in the law school's list of official student organizations, permission to reserve campus space for meetings and storage, and funding from the law school budget. (7) Christian Legal Society (CLS), one chapter of which is an SIU student group, is an association of Christian lawyers and law students who agree to abide by the moral principles espoused in the organization's statement of faith. (8) Although any student may attend CLS's meetings, full voting membership in the organization is subject to the student's adherence to CLS's moral principles, which include a prohibition against engaging in or approving of homosexual activity. (9) After receiving a complaint that active homosexuals could not become voting members of CLS, SIU revoked CLS's student organization status on the ground that CLS violated SIU's Affirmative Action/Equal Employment Opportunity (AA/EEO) policy to "provide equal employment and education opportunities for all qualified persons without regard to ... sexual orientation" and the SIU Board of Trustees' policy that required all recognized student organizations to "adhere[] to all appropriate federal or state laws concerning nondiscrimination and equal opportunity." (10)

CLS filed suit against SIU claiming violation of its First Amendment rights of expressive association and free speech and moved for a preliminary injunction to restore its student organization status pending a decision on the merits. (11) The District Court for the Southern District of Illinois denied the preliminary injunction on the ground that CLS did not meet two of the requirements for a preliminary injunction. First, CLS did not demonstrate that it was reasonably likely to succeed on the merits--"at best it is a close question." (12) Second, CLS did not show that it would suffer irreparable harm if the injunction were denied--"the organization exists, will continue to exist, and will meet and carry-on its business. …

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