Rehearing and Rehearing En Banc Denied August 18, 1988.
ARNOLD, Circuit Judge.
The Gay and Lesbian Students Association of the University of Arkansas at Fayetteville brought this § 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.
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.
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.
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, "The key word is `support.' ... This is a group that supports gay and lesbian homosexuality. We cannot use state money to support a homosexual group. What if a group of students/arsonists wanted to start an arsonists club and start fires. Would you fund them? ... It's the same thing as funding homosexuals." 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.
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.
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.
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 workshops as long as the segment on gays and lesbians was included. Plaintiff's Exhibit 48. Apparently, Gatewood insinuated that University support would be withdrawn as well. Plaintiff's Exhibit 49.
In the fall of 1985, the GLSA once more submitted an application for "B" funds. The group planned to show a historical documentary, "Before Stonewall," and sponsor two workshops, one on racism and one on homophobia. The GLSA initially requested $295.00, but after conferring with the Finance Committee trimmed its request to $165.00. The Finance Committee found the GLSA met all the funding criteria, and recommended that it receive "B" funds.
The student chairman of the Committee, though confident the GLSA deserved funding, was apprehensive about presenting the Committee's recommendation to the Senate. Fearing a repeat of the events from the year before, Transcript at 35, she sought Gohn's advice. He told her to handle it as best she could. She decided to present the funding requests individually, as had been done before 1984.
After some initial confusion,
The GLSA was the only group recommended by the Finance Committee that was not funded. The Finance Committee chairman believed it was the first time a recommended group had been denied money.
The GLSA appealed to Vice Chancellor Gohn. Gohn conceded that the GLSA had met all technical requirements, while other groups which had not were nevertheless given funds, but denied the appeal, arguing that the decision of the Student Senate should be respected. Plaintiff's Exhibit 12. Though in his letter to the GLSA Gohn claimed not to know why the Senate voted as it did, he later seemed to admit the GLSA had been discriminated against. Transcript at 41-42. The GLSA then appealed to Chancellor Ferritor, who upheld Gohn's decision in a brief statement. Finally, the GLSA wrote to the President for help. He too denied relief, stating first that he lacked jurisdiction to reverse funding decisions, as that was within the province of the Vice Chancellor, and second that in any case he agreed with Gohn's analysis. Plaintiff's Exhibit 18.
The GLSA then brought this lawsuit, alleging its First Amendment rights were violated when it was denied "B" funds because of the content of its speech. Before we reach this question, we must deal with two preliminary issues.
The District Court held that this case involves a live controversy, since the funding denial was an issue capable of repetition yet evading review. The University contests this conclusion, arguing that the problem might not recur, and, if it did, there would be ample time to seek judicial review. In support of its first contention, the University notes that the composition of the Student Senate has changed since 1985; senators have graduated or retired. It is possible that a subsequent Senate would vote to fund the GLSA. After all, a Senate did so in 1984. The University claims no one can accurately predict the vagaries of student government.
We observe first that the funding cycle for student organizations is one year. That is too short a period for the GLSA to appeal to the proper University officials and then fully litigate its claim. Second, we note that it need not be proved with certainty that the situation will recur; GLSA must show only a reasonable expectation of repetition. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975) (per curiam). The District Court laid out a litany of facts that point to a probable recurrence: University officials continue to support the Senate's denials of funding; the Senate has a policy of granting funds to all organizations who meet the requirements, yet has denied funding to a properly qualified GLSA on two occasions; and the one time the GLSA received funds, the Senate tried to enact a proposal that would prevent it from ever again receiving funds. Gay & Lesbian Students Assoc. v. Gohn, 656 F.Supp. 1045, 1051 (W.D.Ark.1987). The case is not moot.
The University contests the District Court's determination that state action was present in the denial of funding to the GLSA. Conceding that the University and through it the Student Senate are creations of the State, and that "B" funds originate in state coffers, the appellees nonetheless contend that because University officials had no control over the Student Senate, state action was not present. The University relies on Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir.1987), a case in which state action was held to be lacking where a university exercised no editorial control over a student newspaper.
However, a review of the facts in this case demonstrates that the University did have final say over Senate funding decisions. The student handbook, which discusses,
The GLSA appeals the District Court's holding that the Student Senate's denial of funding to the group did not violate its First Amendment rights. Because we believe the record is replete with evidence that the Senate's action was based on viewpoint discrimination, we reverse.
The District Court aptly concluded that the GLSA had no right to receive "B" funds. First, the Court observed that while student organizations have the right to university recognition and to use of university facilities on a nondiscriminatory basis, see Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Gay Lib v. University of Missouri, 558 F.2d 848 (8th Cir.1977) cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 789 (1978), they have no clearly established right to receive university funds. See Healy, supra, 408 U.S. at 182 n. 8, 92 S.Ct. at 2346 n. 8. Second, the Court reasoned that since "B" funds are finite, student organizations logically could not have a right to receive them, at least not in whatever amounts they may request. Resource constraints necessarily impose some limit.
The District Court went on to recognize that, while the GLSA has no right to receive "B" funds, it may not be denied them for a reason which violates its First Amendment rights:
656 F.Supp. at 1054, quoting Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972). Content-based discrimination can be justified only if the government demonstrates that its regulation is narrowly drawn and is necessary to effectuate a compelling state interest. Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 274-75, 70 L.Ed.2d 440 (1981). This is an extremely difficult standard for government to meet.
We agree with the District Court's enunciation of these two basic premises: that a group has no right to funding, but when funds are made available, they must be distributed in a viewpoint-neutral manner, absent other considerations. If these two principles had been applied to the facts in this case, the GLSA would have prevailed, as will be shown. Obviously, the District Court's analysis did not stop after these two steps.
The District Court erred in overemphasizing the first proposition, that the GLSA has no right to funding. Noting that the GLSA had no right to have its speech subsidized, the Court cited Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (TWR),
The District Court also overstated the role legitimate discretion played in the Senate's funding decision. Relying on Advocates for Arts v. Thomson, 532 F.2d 792 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976), the Court stated that "a [funding] decision can to a certain extent rest on intrinsic matters or the `value' of the subject matter itself." 656 F.Supp. at 1055. The Court went on to say that "[t]o date there has not developed any firm policy concerning the constitutional value in sexual preference nondiscrimination." Id. at 1056. Thus, the Court concluded, after weighing the merits of competing funding proposals, the Student Senate might choose not to fund the GLSA, concluding its message was less worthy than that of some other group. In its brief, the University argues along similar lines, claiming that the Senate may have chosen not to fund the group because it was not so educational and beneficial to the campus as other groups.
Advocates for Arts, however, dealt with state grants for literary magazines. The competition for funds was judged on artistic, not political or ideological grounds. The First Circuit recognized this distinction, noting that "distribution of arts grants on the basis of such extrinsic considerations as the applicants' political views, associations, or activities would violate the equal protection clause, if not the first amendment, by penalizing the exercise of those freedoms." 532 F.2d at 798 n. 8. What is at issue here is not the value of a short story or the constitutional status of sexual preferences, but speech on the subject of nondiscrimination.
The University claims the denial of funding was for a number of valid reasons related to the educational merit and benefit to the community of the GLSA's planned activities. But these reasons were not mentioned in the course of the denial of funds. Indeed, there is evidence that many senators voted against funding for other reasons, such as their disagreement with the GLSA's beliefs. In response to this, the University argues that the motive of the Student Senate is irrelevant, and in any case cannot be determined, since each senator may have a different rationale. Every claim of viewpoint discrimination requires, by its very nature, that the purposes or motives of governmental officials be determined. When the body involved has many members, the question is harder to answer, but it still must be faced. See Edwards v. Aguillard, ___ U.S. ___, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).
When the original two premises are applied to the facts in this case, the First Amendment violation is apparent. The GLSA met all objective criteria for funding and received the Finance Committee's recommendation, yet was denied funds twice. The one time the GLSA received funds, an unusual procedure was followed in presenting requests before the Senate. And, immediately after the granting of funds, the Senate voted never to fund the GLSA again. All other qualified groups received money. There was no shortage of resources, since unqualified organizations were given funds, and money was left over at the end of the appropriations period. Some student senators freely admitted they voted against the group because of its views. University officials were feeling pressure from state legislators not to fund the GLSA or to allow in any way the dissemination of opinions tolerant towards homosexuals. It is apparent that the GLSA was denied "B" funds because of the views it espoused. Nor is there a compelling state interest justifying the Senate's denial of funds. The University provides no argument,
We realize that the District Court made no explicit finding as to the reason for denial of funding, that this is a question of fact, and that appellate courts are not fact-finding forums. We think, though, that the District Court's opinion, when read in full and in context, includes an implicit finding that funds were denied because of distaste for the GLSA's ideas. Otherwise, there would have been no need to resort to the legal doctrines (e.g., that there is no "right" to public money) used by the Court to justify dismissing the complaint. A finding of fact that funds were denied for some content-neutral reason would have sufficed completely to dispose of the case. In any event, the facts of this case are so obvious that a remand for an explicit finding would be a waste of time. This record leaves no reasonable doubt that funds were denied because of disagreement with the GLSA's speech. A finding the other way would be clearly erroneous.
Because we hold the appellant's First Amendment rights were violated when the Senate refused to grant it "B" funds, we find it unnecessary to reach its due-process argument.
The judgment of the District Court is reversed, and the case is remanded with directions to provide the appellant with appropriate relief in accordance with this opinion.