Christian Legal v. Walker, James E. , 453 F.3d 853 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3239
CHRISTIAN LEGAL SOCIETY, Chapter
at Southern Illinois University School of Law,
a Student Organization at the Southern Illinois
University School of Law on behalf of itself
and its individual members,
Plaintiff-Appellant,
v.
JAMES E. WALKER, in his official capacity of
President of Southern Illinois University,
PETER C. ALEXANDER, in his official capacity as
Dean of Southern Illinois University School of Law,
JESSICA J. DAVIS, in her official capacity as
Director of Law Student Development, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 C 4070—G. Patrick Murphy, Chief Judge.
____________
ARGUED OCTOBER 19, 2005—DECIDED JULY 10, 2006
____________
Before KANNE, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. The dean of Southern Illinois
University’s School of Law (“SIU”) revoked the official
student organization status of the Christian Legal Society
2 No. 05-3239
(“CLS”) chapter at SIU because he concluded that CLS’s
membership policies, which preclude membership to
those who engage in or affirm homosexual conduct, violate
SIU’s nondiscrimination policies. CLS sued SIU for violat-
ing its First Amendment rights to free speech, expressive
association, and free exercise of religion, and its Fourteenth
Amendment rights of equal protection and due process. CLS
moved for a preliminary injunction, asking that its official
student organization status be restored, but the district
court denied the motion. We reverse.
I. Background
Southern Illinois University at Carbondale and its School
of Law, a public university and law school, encourage and
support a wide variety of student organizations and invite
them to apply for official recognition. The benefits of
recognition are several. If an organization is officially
recognized by the law school, benefits include access to the
law school List-Serve (the law school’s database of e-mail
addresses), permission to post information on law school
bulletin boards, an appearance on lists of official student
organizations in law school publications and on its website,
the ability to reserve conference rooms and meeting and
storage space, a faculty advisor, and law school money.
During the 2004-2005 school year, SIU School of Law
recognized seventeen student organizations—among them,
the Black Law Student Association, the Federalist Society,
the Hispanic Law Student Association, Law School Demo-
crats, Lesbian and Gay Law Students and Supporters, SIU
Law School Republicans, the Student Animal Legal Defense
Fund, Women’s Law Forum, and CLS. Recognition by the
law school does not automatically bestow upon an organiza-
tion recognition by the larger university, however. For that,
organizations must make separate application to SIU; the
upside is even more benefits. Groups that register with the
No. 05-3239 3
university also get university money (it is not clear how
much) and access to meeting space at the SIU student
center. In June 2005 SIU had 404 registered student
organizations.
CLS is a nationwide association of legal professionals and
law students who share (broadly speaking) a common
faith—Christianity. Members are expected to subscribe to
a statement of faith and agree to live by certain moral
principles. One of those principles, the one that has caused
the dispute in this case, is that sexual activity outside of a
traditional (one man, one woman) marriage is forbidden.
That means, in addition to fornication and adultery, CLS
disapproves active homosexuality. CLS welcomes anyone to
its meetings, but voting members and officers of the
organization must subscribe to the statement of faith,
meaning, among other things, that they must not engage in
or approve of fornication, adultery, or homosexual conduct;
or, having done so, must repent of that conduct.
In February 2005 someone complained to SIU about
CLS’s membership and leadership requirements that
preclude active homosexuals from becoming voting mem-
bers or officers. SIU informed CLS of the complaint and
asked to see a statement of CLS’s membership and leader-
ship policies. CLS obliged. It explained that while “[a]ny
student is welcome to participate in CLS chapter meetings
and other activities,” voting members and officers must
subscribe to certain basic principles and beliefs contained in
CLS’s statement of faith, “including the Bible’s prohibition
of sexual conduct between persons of the same sex.” CLS
also told SIU that a person “who may have engaged in
homosexual conduct in the past but has repented of that
conduct, or who has homosexual inclinations but does not
engage in or affirm homosexual conduct, would not be
prevented from serving as an officer or member.”
In response, the law school dean revoked CLS’s registered
student organization status, telling CLS that the “tenets of
4 No. 05-3239
the national CLS” violated two university policies. The first
is SIU’s Affirmative Action/Equal Employment Opportunity
Policy. In pertinent part, the policy states that SIU will
“provide equal employment and education opportunities for
all qualified persons without regard to race, color, religion,
sex, national origin, age, disability, status as a disabled
veteran of the Vietnam era, sexual orientation, or marital
status.” The second is a policy of the SIU Board of Trustees
which provides that “[n]o student constituency body or
recognized student organization shall be authorized unless
it adheres to all appropriate federal or state laws concern-
ing nondiscrimination and equal opportunity.” As a result
of derecognition, CLS was no longer able to reserve law
school rooms for private meetings. CLS could use law school
classrooms to meet, but not privately—other students and
faculty were free to come and go from the room. CLS also
was denied access to law school bulletin boards, representa-
tion on the law school’s website or in its publications, and
the liberty to refer to itself as the “SIU Chapter of” the
Christian Legal Society. Finally, CLS was stripped of an
official faculty advisor, free use of the SIU School of Law
auditorium, access to the law school’s List-Serve, and any
funds provided to registered student organizations.
CLS brought suit against the dean and several other
SIU officials—we will use the shorthand “SIU” to refer to all
the defendants—and quickly moved for a preliminary
injunction. CLS claimed that SIU violated CLS’s First
Amendment rights of expressive association, free speech,
and free exercise of religion. CLS also alleged that it
was denied equal protection and due process. On the
basis of the record information we have recounted here, the
district court denied the motion, holding that CLS’s likeli-
hood of success on the merits was “at best . . . a close
question.” The district court also held that CLS had not
suffered irreparable harm because CLS still existed as an
organization, just without the official student organiza-
No. 05-3239 5
tion recognition and benefits conferred by the university. At
most, said the district judge, the harm from derecognition
was “speculative.” As the judge saw it, CLS would merely
have to “use other meeting areas and other ways to commu-
nicate” with students.
CLS appealed and moved for an injunction pending
appeal, focusing primarily on its expressive association
claim and its right of access to a speaking forum. Grant-
ing the injunction pending appeal, we concluded preliminar-
ily that CLS had a reasonable likelihood of success on the
merits and that it had shown irreparable harm. The matter
was expedited and has now been fully briefed and argued.
Our decision has not changed.
II. Discussion
To win a preliminary injunction, a party must show that
it is reasonably likely to succeed on the merits, it is suffer-
ing irreparable harm that outweighs any harm the
nonmoving party will suffer if the injunction is granted,
there is no adequate remedy at law, and an injunction
would not harm the public interest. Joelner v. Vill. of Wash.
Park, 378 F.3d 613, 619 (7th Cir. 2004). If the moving party
meets this threshold burden, the district court weighs the
factors against one another in a sliding scale analysis, id.,
which is to say the district court must exercise its discretion
to determine whether the balance of harms weighs in favor
of the moving party or whether the nonmoving party or
public interest will be harmed sufficiently that the injunc-
tion should be denied.
In a First Amendment case, we are required to make an
independent review of the record because “the reaches of
the First Amendment are ultimately defined by the facts it
is held to embrace,” and the reviewing court must decide
independently whether “a given course of conduct falls on
the near or far side of the line of constitutional protection.”
6 No. 05-3239
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 567 (1995); see also Boy Scouts of Am.
v. Dale, 530 U.S. 640, 648-49 (2000). On a review of the
district court’s denial of a preliminary injunction, legal
conclusions are reviewed de novo, findings of historical or
evidentiary fact for clear error, and the balancing of the
injunction factors for an abuse of discretion. Joelner, 378
F.3d at 620. Our task is simplified here because only the
first two injunction factors are disputed. The loss of
First Amendment freedoms is presumed to constitute an
irreparable injury for which money damages are not
adequate, and injunctions protecting First Amendment
freedoms are always in the public interest. Id.; see also
Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”).
A. Likelihood of Success on the Merits
The district court concluded that because derecognition
did not preclude CLS from meeting and expressing itself (it
just had to do so without the benefits that official student
organization status brings), CLS had not shown a likelihood
of success on the merits. We disagree. There are three
reasons CLS is reasonably likely to succeed on the merits,
and any one of them is enough to carry CLS’s burden. First,
it is not clear CLS actually violated any SIU policy, which
was the justification offered for revoking its recognized
student organization status. Second, CLS has shown a
likelihood that SIU impermissibly infringed on CLS’s right
of expressive association. Finally, CLS has shown a likeli-
hood that SIU violated CLS’s free speech rights by ejecting
it from a speech forum in which it had a right to remain.1
1
There are other claims in this lawsuit, but we do not address
(continued...)
No. 05-3239 7
1. Whether CLS Violated a University Policy
As an initial matter, it is doubtful that CLS violated
either of the policies SIU cited as grounds for derecognition.
One is a Board of Trustees policy providing that “[n]o
student constituency body or recognized student organiza-
tion shall be authorized unless it adheres to all appropriate
federal or state laws concerning nondiscrimination and
equal opportunity.” Through two rounds of briefing in this
Court—one for the injunction pending appeal and one on
the merits—SIU failed to identify which federal or state law
it believes CLS violated. We pointed out SIU’s shortcoming
in our order granting the injunction pending appeal. (Order
of Aug. 22, 2005, at 3.) But when invited once again at oral
argument to identify a federal or state law CLS had vio-
lated, SIU was still unable to answer the question. This
raises the specter of pretext; at the least, this asserted
ground for derecognition simply drops out of the case.
SIU also claims CLS violated the university’s Affirmative
Action/EEO policy, which states that SIU will “provide
equal employment and education opportunities for all
qualified persons without regard to[, among other things,]
sexual orientation.” We are skeptical that CLS violated this
1
(...continued)
them on this appeal because the parties have focused their
energies on the expressive association and free speech claims. CLS
argues that SIU violated the unconstitutional conditions doctrine
by conditioning recognized student organization status on the
relinquishment of constitutional rights. In addition, CLS claims
SIU violated the Free Exercise Clause of the First Amendment,
the Equal Protection Clause of the Fourteenth Amendment
(alleging that SIU does not apply its nondiscrimination policies in
an evenhanded way), and the Due Process Clause of the Four-
teenth Amendment. These claims have not been waived; indeed
the parties are free, and as we understand it likely, to pursue
them when the case is back in district court.
8 No. 05-3239
policy. CLS requires its members and officers to adhere to
and conduct themselves in accordance with a belief system
regarding standards of sexual conduct, but its membership
requirements do not exclude members on the basis of sexual
orientation. CLS’s statement of faith specifies, among other
things, a belief in the sinfulness of “all acts of sexual
conduct outside of God’s design for marriage between one
man and one woman, which acts include fornication,
adultery, and homosexual conduct.” Those who engage in
sexual conduct outside of a traditional marriage are not
invited to become CLS members unless they repent the
conduct and affirm the statement of faith.
In response to the law school’s inquiry about its member-
ship policies, CLS explained that it interprets its statement
of faith to allow persons “who may have homosexual inclina-
tions” to become members of CLS as long as they do not
engage in or affirm homosexual conduct. The same is true
of unmarried heterosexual persons: heterosexual persons
who do not participate in or condone heterosexual conduct
outside of marriage may become CLS members; those who
engage in unmarried heterosexual conduct and do not
repent that conduct and affirm the statement of faith may
not. CLS’s membership policies are thus based on belief and
behavior rather than status, and no language in SIU’s
policy prohibits this.
There are other reasons we are skeptical that CLS
violated SIU’s Affirmative Action/EEO policy. First, CLS
does not employ anyone. Second, it is not readily apparent
(though certainly an argument could be made) that CLS
should be considered an SIU “education opportunity” for
purposes of applying the policy. On this latter point, the
Affirmative Action/EEO policy by its terms applies to
SIU, and there is no support in the record for the proposi-
tion that CLS is an extension of SIU. CLS is a private
speaker, albeit one receiving (until it was derecognized) the
public benefits associated with recognized student organiza-
No. 05-3239 9
tion status. But subsidized student organizations at public
universities are engaged in private speech, not spreading
state-endorsed messages. See Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 833-34 (1995) (ex-
plaining the difference between government funding of
private groups to spread a government-controlled message
and government funding of private groups simply to
encourage a diversity of views from private speakers); see
also Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529
U.S. 217, 229, 233 (2000). It would be a leap, and one SIU
does not take, to suggest that student organizations are
mouthpieces for the university.
Accordingly, CLS has demonstrated a likelihood of
success on the threshold question of whether either of SIU’s
stated grounds for derecognition actually applies. Regard-
less, even accepting at face value SIU’s conclusion that
CLS’s membership policies violated the university’s
antidiscrimination policy, CLS has shown a likelihood
of success on both its expressive association and free speech
claims, and we move to those now.
2. Expressive Association
Implicit in the First Amendment freedoms of speech,
assembly, and petition is the freedom to gather together
to express ideas—the freedom to associate. Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 126 S. Ct.
1297, 1311-12 (2006) (“FAIR”); Dale, 530 U.S. at 647-48;
Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984);
Healy v. James, 408 U.S. 169, 181 (1972). The freedom to
associate assures that the majority (or a powerful or vocal
minority) cannot force its views on groups that choose to
express unpopular ideas. Dale, 530 U.S. at 647-48. Govern-
ment action may impermissibly burden the freedom to
associate in a variety of ways; two of them are “impos[ing]
penalties or withold[ing] benefits from individuals because
10 No. 05-3239
of their membership in a disfavored group” and
“interfer[ing] with the internal organization or affairs of the
group.” Roberts, 468 U.S. at 623.
The Supreme Court has held that “[t]here can be no
clearer example of an intrusion into the internal structure
or affairs of an association than a regulation that forces the
group to accept members it does not desire.” Id. Freedom to
associate “plainly presupposes a freedom not to associate.”
Dale, 530 U.S. at 648 (quoting Roberts, 468 U.S. at 623).
When the government forces a group to accept for member-
ship someone the group does not welcome and the presence
of the unwelcome person “affects in a significant way the
group’s ability to advocate” its viewpoint, the government
has infringed on the group’s freedom of expressive associa-
tion. Dale, 530 U.S. at 648. However, “the freedom of
expressive association, like many freedoms, is not absolute.”
Id.; see also Roberts, 468 U.S. at 623. Infringements on
expressive association are subject to strict scrutiny; the
right of expressive association “may be overridden ‘by
regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of
associational freedoms.’ ” Dale, 530 U.S. at 648 (quoting
Roberts, 468 U.S. at 623).
Dale and Hurley were “forced inclusion” expressive
association cases. The Supreme Court held in Dale that
a New Jersey law prohibiting discrimination in public
accommodations could not be constitutionally applied to the
Boy Scouts to force the Scouts to accept an openly gay
scoutmaster. The Court held that the presence of an openly
gay scoutmaster “would significantly burden the organiza-
tion’s right to oppose or disfavor homosexual conduct” and
“[t]he state interests embodied in New Jersey’s public
accommodations law do not justify such a severe intrusion
on the Boy Scouts’ rights to freedom of expressive associa-
No. 05-3239 11
tion.” Dale, 530 U.S. at 659. Similarly, in Hurley, the Court
held that Massachusetts’ public accommodations law could
not be constitutionally applied to force a Boston St. Pat-
rick’s Day parade organization to accept a parade unit
marching under the banner of an Irish gay and lesbian
group. The Court held that “[w]hen the law is applied to
expressive activity in the way it was done here, its apparent
object is simply to require speakers to modify the content of
their expression to whatever extent beneficiaries of the law
choose to alter it with a message of their own.” Hurley, 515
U.S. at 578. This, the Court said, “is a decidedly fatal
objective.” Id. at 579.
CLS alleges that SIU’s application of its anti-
discrimination policy as a justification for revocation of
CLS’s student organization status unconstitutionally
intrudes upon its right of expressive association. The
likelihood of success on this claim turns on three questions:
(1) Is CLS an expressive association? (2) Would the forced
inclusion of active homosexuals significantly affect CLS’s
ability to express its disapproval of homosexual activity?
and (3) Does CLS’s interest in expressive association
outweigh the university’s interest in eradicating discrimina-
tion against homosexuals? See Dale, 530 U.S. at 648-59.
It goes without saying that a group must engage in
expressive association in order to avail itself of the First
Amendment’s protections for expressive association. Id. at
648. CLS is a group of people bound together by their
shared Christian faith and a commitment to “[s]howing the
love of Christ to the campus community and the community
at large by proclaiming the gospel in word and deed” and
“[a]ddressing the question, ‘What does it mean to be a
Christian in law?’ ” Members must dedicate themselves to
the moral principles embodied in CLS’s statement of faith;
one of those principles is affirmance of “certain Biblical
standards for sexual morality.” CLS interprets the Bible
12 No. 05-3239
to prohibit sexual conduct outside of a traditional mar-
riage between one man and one woman. As such, CLS
disapproves of fornication, adultery, and homosexual
conduct, and believes that participation in or affirmation of
such sexual activity is inconsistent with its statement
of beliefs. It would be hard to argue—and no one does—
that CLS is not an expressive association.
Our next question is whether application of SIU’s
antidiscrimination policy to force inclusion of those who
engage in or affirm homosexual conduct would significantly
affect CLS’s ability to express its disapproval of homosexual
activity. Dale, 530 U.S. at 648. To ask this question is very
nearly to answer it. As we have noted, while voting mem-
bers and officers of CLS must affirm and abide by the
standards of sexual conduct contained in its statement of
faith, CLS meetings are open to all. SIU’s enforcement of its
antidiscrimination policy upon penalty of derecognition can
only be understood as intended to induce CLS to alter its
membership standards—not merely to allow attendance by
nonmembers—in order to maintain recognition. There can
be little doubt that requiring CLS to make this change
would impair its ability to express disapproval of active
homosexuality.
CLS is a faith-based organization. One of its beliefs is
that sexual conduct outside of a traditional marriage is
immoral. It would be difficult for CLS to sincerely and
effectively convey a message of disapproval of certain types
of conduct if, at the same time, it must accept members who
engage in that conduct. CLS’s beliefs about sexual morality
are among its defining values; forcing it to accept as
members those who engage in or approve of homosexual
conduct would cause the group as it currently identifies
itself to cease to exist. We have no difficulty concluding that
SIU’s application of its nondiscrimination policies in this
way burdens CLS’s ability to express its ideas. See Roberts,
468 U.S. at 623; see also Dale, 530 U.S. at 659; Hurley, 515
No. 05-3239 13
U.S. at 576 (“[W]hen dissemination of a view contrary to
one’s own is forced upon a speaker[,] . . . the speaker’s right
to autonomy over the message is compromised.”); cf. FAIR,
126 S. Ct. at 1312 (holding that law school’s associational
rights are not burdened by law requiring that military
recruiters be allowed the same campus access other recruit-
ers are given because military recruiters do not become
“members of the school’s expressive association”).
Our final question is this: Does SIU’s interest in prevent-
ing discrimination against homosexuals outweigh CLS’s
interest in expressing its disapproval of homosexual
activity? Dale, 530 U.S. at 658-59. In order to justify
interfering with CLS’s freedom of expressive association,
SIU’s policy must serve a compelling state interest that is
not related to the suppression of ideas and that cannot
be achieved through a less restrictive means. Id. at 648.
Certainly the state has an interest in eliminating discrimi-
natory conduct and providing for equal access to opportuni-
ties. See, e.g., Roberts, 468 U.S. at 624. But the Supreme
Court has made it clear that antidiscrimination regulations
may not be applied to expressive conduct with the purpose
of either suppressing or promoting a particular viewpoint.
Dale, 530 U.S. at 659-61; Hurley, 515 U.S. at 578-79.
“While the law is free to promote all sorts of conduct in
place of harmful behavior, it is not free to interfere with
speech for no better reason than promoting an approved
message or discouraging a disfavored one, however en-
lightened either purpose may strike the government.”
Hurley, 515 U.S. at 579; see also Dale, 530 U.S. at 661.
What interest does SIU have in forcing CLS to accept
members whose activities violate its creed other than
eradicating or neutralizing particular beliefs contained
in that creed? SIU has identified none. The only apparent
point of applying the policy to an organization like CLS is to
induce CLS to modify the content of its expression or suffer
the penalty of derecognition.
14 No. 05-3239
On the other side of the scale, CLS’s interest in exercising
its First Amendment freedoms is unquestionably substan-
tial. “The First Amendment protects expression, be it of the
popular variety or not,” Dale, 530 U.S. at 660, and “public
or judicial disapproval of a tenet of an organization’s
expression does not justify the State’s effort to compel the
organization to accept members where such acceptance
would derogate from the organization’s expressive mes-
sage.” Id. at 661. CLS has carried its burden of proving a
likelihood of success on its claim for violation of its right of
expressive association.
SIU objects that this is not a “forced inclusion” case like
Dale or Hurley because it is not forcing CLS to do anything
at all, but is only withdrawing its student organization
status. SIU argues, and the district court held, that the
consequences of derecognition are too insignificant to
constitute a constitutional violation. The Supreme Court
rejected this argument in Healy, a case that parallels
this one in all material respects.
Healy involved an expressive association claim by col-
lege students who attempted to form a Students for a
Democratic Society (“SDS”) chapter at Central Connecticut
State College. The college refused to confer official student
organization status on the chapter, believing that the
organization’s philosophy conflicted with university policy.
Healy, 408 U.S. at 174-76. As a result of nonrecognition,
SDS was not allowed to meet on campus or make announce-
ments about meetings and rallies through university
channels like newspapers and bulletin boards. Id. at 176.
The court of appeals held the university had not violated
SDS’s constitutional right of association because the
university had not forced SDS to do anything. Id. at 182.
SDS was still able to meet as a group, but off campus and
without the attendant benefits of recognition.
The Supreme Court reversed. The protections of the
Constitution, the Court said, are not limited to direct
No. 05-3239 15
interference with First Amendment freedoms. Id. at 183.
The Constitution also protects against indirect interference.
Id. Recalling that “ ‘[t]he vigilant protection of constitu-
tional freedoms is nowhere more vital than in the commu-
nity of American schools,’ ” id. at 180 (quoting Shelton v.
Tucker, 364 U.S. 479, 487 (1960)), the Court held in Healy
that SDS’s associational rights had been impermissibly
infringed because the school refused to confer student
organization status and its attendant benefits on SDS. Id.
at 181-84. Although the Court recognized the university’s
interest in maintaining order and enforcing reasonable
campus rules, the Court drew a distinction between rules
directed at a student organization’s actions and rules
directed at its advocacy or philosophy; the former might
provide permissible justification for nonrecognition, but the
latter do not. Id. at 188-94.
This case is legally indistinguishable from Healy, and
no principled factual distinction appears in the present
record that would justify a contrary conclusion. CLS was
deprived of the same benefits as the student group in Healy.
Both were frozen out of channels of communication offered
by their universities; both were denied university money
and access to private university facilities for meetings. SDS
in Healy, like CLS here, could turn to alternative modes of
communication and alternative meeting places, but the
Supreme Court held that the student group’s “possible
ability to exist outside the campus community does not
ameliorate significantly the disabilities imposed by”
nonrecognition. Id. at 183.
The same is true here. SIU may not do indirectly what it
is constitutionally prohibited from doing directly. Healy, 408
U.S. at 183. Read together, the Supreme Court’s holdings in
Dale, Hurley, and Healy provide substantial support for
CLS’s expressive association claim. CLS has demonstrated
a reasonable likelihood of success on its claim for violation
of its right of expressive association.
16 No. 05-3239
3. Free Speech
The government violates the Free Speech Clause of the
First Amendment when it excludes a speaker from a speech
forum the speaker is entitled to enter. See Rosenberger, 515
U.S. at 829-30; Hosty v. Carter, 412 F.3d 731, 737 (7th Cir.
2005). SIU has created a speech forum for student organiza-
tions and has bestowed certain benefits on those who are
qualified to enter the forum. CLS alleges that SIU violated
its free speech rights by ejecting it from that speech forum
without a compelling reason.
The level of scrutiny applicable to the government’s
actions in this type of free speech case differs depending on
the nature of forum from which the speaker has been
excluded. Good News Club v. Milford Cent. Sch., 533 U.S.
98, 106 (2001); see also Anderson v. Milwaukee County, 433
F.3d 975, 979 (7th Cir. 2006). The Supreme Court has
identified three different types of speech fora for purposes
of First Amendment analysis. In an open or traditional
public forum, state restrictions on speech get strict scrutiny.
Good News Club, 533 U.S. at 106; Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 391 (1993);
Widmar v. Vincent, 454 U.S. 263, 269-79 (1981); Hosty, 412
F.3d at 736-37. The government may “exclude a speaker
from a traditional public forum ‘only when the exclusion is
necessary to serve a compelling state interest and the
exclusion is narrowly drawn to achieve that interest.’ ” Ark.
Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677
(1998) (quoting Cornelius v. NAACP Legal Def. & Educ.
Fund., Inc., 473 U.S. 788, 800 (1985)). The same standard
applies to a “designated public forum,” which is created
when the government opens a nontraditional public forum
for public discourse. Forbes, 523 U.S. at 677; DeBoer v. Vill.
of Oak Park, 267 F.3d 558, 565-66 (7th Cir. 2001).
Finally, a nonpublic forum—public property that “is not
by tradition or designation a forum for public communica-
No. 05-3239 17
tion”—is subject to less rigorous scrutiny than a traditional
open or designated public forum. Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 46 (1983); Good News
Club, 533 U.S. at 106. Speech restrictions in a nonpublic
forum must not discriminate on the basis of viewpoint and
“must be ‘reasonable in light of the purpose served by the
forum.’ ” 2 Good News Club, 533 U.S. at 106-
2
The forum nomenclature is not without confusion. Court
decisions also speak of “limited public” fora; most recently this
phrase has been used interchangeably with “nonpublic” fora,
which means both are subject to a lower level of scrutiny. See, e.g.,
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001)
(identifying limited public fora as subject to the same test as
nonpublic fora described in, for example, Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 392 (1993)). But
“limited public forum” has also been used to describe a subcate-
gory of “designated public forum,” meaning that it would be
subject to the strict scrutiny test. See, e.g., R.A.V. v. City of St.
Paul, Minn., 505 U.S. 377, 427 (1992) (Stevens, J. concurring);
Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788,
796 (1985) (noting that appellate court did not decide whether
forum in question was a limited public forum or nonpublic forum);
DeBoer v. Vill. of Oak Park, 267 F.3d 558, 566 (7th Cir. 2001).
That confusion has infected this litigation. At oral argument
both parties described the student organization forum at SIU as a
“limited public forum,” but we think they meant different things.
CLS noted the diverse array of groups that have recognized
student organization status at SIU and maintained that, like
those other groups, CLS is entitled to presence in that forum. CLS
went on: “[W]hat the law says is that when a public university
sets up such a forum and excludes a group that is otherwise
eligible for that forum[,] that it can only do so with reference to a
compelling state interest.” Given the reference to the strict
scrutiny test (compelling state interest), CLS was probably
thinking of “limited public forum” as “designated public forum.”
See Cornelius, 473 U.S. at 800 (“[W]hen the government has
(continued...)
18 No. 05-3239
07 (quoting Cornelius, 473 U.S. at 806); Forbes, 523 U.S. at
682; Rosenberger, 515 U.S. at 829; Lamb’s Chapel, 508 U.S.
at 392-93.
Once the government has set the boundaries of its forum,
it may not renege; it must respect its own self-imposed
boundaries. Rosenberger, 515 U.S. at 829; Hosty, 412 F.3d
at 737 (noting that when a forum is “declared open to
speech ex ante, [participants] may not be censored ex post”
when government decides the speech is not welcome).
Though recognized student organization status is a forum
of the theoretical rather than the physical kind—a street
corner or public square is the physical kind—the same rules
apply. See Rosenberger, 515 U.S. at 830.
Whether SIU’s student organization forum is a public,
designated public, or nonpublic forum is an inquiry that will
require further factual development, and that is a task
properly left for the district court. But even assuming at
this stage of the litigation that SIU’s student organization
forum is a nonpublic forum—making the lowest level of
scrutiny applicable—we believe CLS has the better of the
argument.
There can be little doubt that SIU’s Affirmative Ac-
tion/EEO policy is viewpoint neutral on its face, but as the
record stands, there is strong evidence that the policy has
2
(...continued)
intentionally designated a place or means of communication as a
public forum[,] speakers cannot be excluded without a compelling
governmental interest.”). SIU, on the other hand, focuses on the
“limited public forum” test articulated by Good News Club:
viewpoint neutrality and reasonableness. Accordingly, while the
parties appeared to agree at oral argument that we are probably
dealing with a “limited public forum,” we will not hold them to
that agreement because they were plainly arguing for different
levels of scrutiny and the “forum” terminology has not always
been clear.
No. 05-3239 19
not been applied in a viewpoint neutral way. According to
the present record evidence, CLS is the only student group
that has been stripped of its recognized status on the basis
that it discriminates on a ground prohibited by SIU’s
Affirmative Action/EEO policy. CLS presented evidence that
other recognized student organizations discriminate in their
membership requirements on grounds prohibited by SIU’s
policy. The Muslim Students’ Association, for example,
limits membership to Muslims. Similarly, membership in
the Adventist Campus Ministries is limited to those
“professing the Seventh Day Adventist Faith, and all other
students who are interested in studying the Holy Bible and
applying its principles.” Membership in the Young Women’s
Coalition is for women only, though regardless of their race,
color, creed, religion, ethnicity, sexual orientation, or
physical ability. There are other examples, but we need not
cite them all.
For whatever reason, SIU has applied its antidiscrim-
ination policy to CLS alone, even though other student
groups discriminate in their membership requirements on
grounds that are prohibited by the policy. SIU contends
there is no evidence that other groups would continue to
discriminate if threatened with nonrecognition, but that
argument is a nonstarter. SIU’s Affirmative Action/EEO
policy, which SIU insists applies to all student organiza-
tions, is a standing threat of nonrecognition; assuming it
applies, that is the whole point of the policy.
Whether the policy is reasonable in light of the purposes
the forum serves cannot be determined on this record
because we do not know precisely what those purposes are
(we could speculate, but that would be inappropriate). We
need not reach this aspect of the inquiry, however, given
our conclusion that CLS has demonstrated a likelihood of
success on its claim that SIU is applying its policy in a
viewpoint discriminatory fashion. SIU has singled out CLS
20 No. 05-3239
for derecognition. The record may be spartan, but every
part of it right now points to success for CLS.
B. Balancing of Harms
The district court also held that CLS was not suffering
irreparable harm as a result of derecognition, focusing on
the fact that CLS could still hold meetings on campus and
could communicate with students by means other than
university bulletin boards and listservs. The district court
believed that CLS was not being forced to include anyone,
but was simply being told that if it desires the benefits of
recognized student organization status, it must abide by
SIU’s antidiscrimination policy. We have already explained
the flaws in this analysis; violations of First Amendment
rights are presumed to constitute irreparable injuries,
Elrod, 427 U.S. at 373; Joelner, 378 F.3d at 620, and Healy
holds that denying official recognition to a student organi-
zation is a significant infringement of the right of expres-
sive association. Healy, 408 U.S. at 181. CLS has shown a
reasonable likelihood of success on its expressive associa-
tion claim under Healy, Dale, and Hurley. CLS has also
demonstrated a likelihood of success on its claim that SIU
has unconstitutionally excluded it from a speech forum in
which it is entitled to remain. One way or the other, CLS
has shown it likely that SIU has violated its First Amend-
ment freedoms.
The district court simply misread the legal standards, and
that is necessarily an abuse of discretion. Koon v. United
States, 518 U.S. 81, 100 (1996); MacDonald v. Chi. Park
Dist., 132 F.3d 355, 357 (7th Cir. 1997). The district court
did not address the question whether SIU would be harmed
by the issuance of a preliminary injunction. On appeal, the
only harm SIU claims is the hardship associated with being
required to recognize a student organization it believes is
violating the university’s antidiscrimination policy. But if
No. 05-3239 21
SIU is applying that policy in a manner that violates CLS’s
First Amendment rights—as CLS has demonstrated is
likely—then SIU’s claimed harm is no harm at all.
For the foregoing reasons, we REVERSE the district court’s
decision and REMAND this case with directions to enter a
preliminary injunction against SIU.
WOOD, Circuit Judge, dissenting. My colleagues have
concluded that the district court erred when it refused to
grant a preliminary injunction requiring Southern Illinois
University School of Law (SIU) in Carbondale to recognize
a local chapter of the Christian Legal Society (CLS) as an
official student organization. That conclusion is possible,
however, only by asking the wrong questions, and thus
arriving at the wrong answers. The problem is compounded
by the state of the record, which the majority acknowledges
is “spartan,” ante at 20. I would dissolve the temporary
injunction that this court issued pending appeal and allow
SIU to enforce its nondiscrimination policy while the case
proceeds through a full exploration of the merits.
If, in the end, the facts show that the nondiscrimination
policy does not apply to student organizations, or that SIU
is discriminating against CLS based upon its evangelical
Christian viewpoint, the district court should certainly
enjoin SIU from enforcing its policy. If on the other hand
SIU, as it claims, is merely applying its Affirmative Ac-
tion/Equal Employment Opportunity Policy (AA/EEO) to an
“education opportunity” in a neutral and even-handed
manner to religious and nonreligious groups alike, and it is
not taking any actions that “force” CLS to accept members
22 No. 05-3239
with views that do not comport with CLS’s interpretations
of the Bible, then SIU is entitled to prevail.
At the outset, it is important to review what is in this
record and what is not. With the facts (established and not)
in mind, I then turn to the standard of review that this
court ought to be applying. Finally, I discuss the important
differences between the present case and Healy v. James,
408 U.S. 169 (1972)—differences that have a dispositive
effect on the way in which the First Amendment rights that
CLS is asserting intersect with SIU’s own constitutional
rights and obligations.
I
The record contains only a brief description of CLS, other
student organizations, and the way that SIU interacts with
them. We know only that there is an organization called
CLS at SIU; that it is a local chapter of an organization
called the Christian Legal Society; that it was a registered
student organization at SIU’s Law School until March 25,
2005; and that registered student organization status
carried with it privileges such as access to space on Law
School bulletin boards, private meeting space within the
Law School, storage space within the Law School, access to
the Law School’s website and publications, email access on
the Law School’s List-Serve, eligibility for certain funding
through the Law School, and use of the SIU name. The
record also includes the following statement made by CLS:
CLS interprets its Statement of Faith to require that
officers and members adhere to orthodox Christian
beliefs, including the Bible’s prohibition of sexual
conduct between persons of the same sex. A person who
engages in homosexual conduct or adheres to the
viewpoint that homosexual conduct is not sinful would
not be permitted to serve as a CLS chapter officer or
member. A person who may have engaged in homosex-
No. 05-3239 23
ual conduct in the past but has repented of that con-
duct, or who has homosexual inclinations but does not
engage in or affirm homosexual conduct, would not be
prevented from serving as an officer or member.
Fairly read, this statement reveals that CLS would prevent
a person who openly affirmed his or her right to engage in
homosexual conduct, as part of an intimate relationship
with another person, from serving as an officer or member
of the organization. Furthermore, Article IV, Section 4.1, of
the CLS chapter constitution provides:
Equal Opportunity and Equal Access. In the conduct of
all aspects of its activities, the Chapter shall not
discriminate on the basis of age, disability, color,
national origin, race, sex or veteran status.
Conspicuous by its absence from this list is sexual orienta-
tion. The constitution at Section 4.2 also provides that
membership “shall be open to all students at the School who
agree with the mission and purposes . . . [and] who sign,
affirm, and endeavor to live their lives in a manner consis-
tent with the Statement of Faith.”
Finally, the record reveals that the Dean of the Law
School, Peter C. Alexander, informed CLS that it was in
violation of the policy of SIU-Carbondale “to provide equal
employment and education opportunities for all qualified
persons without regard to race, color, religion, sex, national
origin, age, disability, status as a disabled veteran or a
veteran of the Vietnam era, sexual orientation, or marital
status.” (This policy is referred to in the record as the
Affirmative Action/Equal Employment Opportunity Policy.
While the majority criticizes SIU for failing to state specifi-
cally what policy CLS violated, Dean Alexander’s letter to
CLS makes clear by quoting it that the policy in question is
the Affirmative Action/Equal Employment Opportunity
Policy. I address this policy in more detail below.) Dean
Alexander also said that recognized student organizations
24 No. 05-3239
must adhere to “all appropriate federal or state laws
concerning nondiscrimination and equal opportunity.”
Because of the procedural posture of this case, including
the fact that SIU has not yet submitted any evidence, many
critical questions remain unexplored. Indeed, some of the
supplemental filings this court has received underscore how
important these unresolved facts may be. For example, the
Center for Law and Religious Freedom, which represents
CLS, argues in a letter filed pursuant to Federal Rule of
Appellate Procedure 28(j) that CLS does not discriminate
“on the basis of ‘sexual orientation’ ” when it insists that its
members refrain from “unrepentant sexual conduct outside
of traditional marriage,” whether that conduct be homosex-
ual or heterosexual. Argument by counsel in a supplemental
letter, or even in a brief, is a poor substitute indeed for facts
on the ground. When the time comes for permanent relief,
solid answers to the following questions, among others, will
be essential:
1. How has CLS’s policy been applied in the past to
students who failed to live up to its Biblically-based
code of conduct (whether sexually or otherwise)? Has it
banned from membership, for example, heterosexual
students who have had sexual relations outside mar-
riage? Has it actually admitted any gays who choose not
to be sexually active?
2. How has the SIU-Carbondale AA/EEO policy been
applied in the past? When, if ever, has it been applied
to student organizations, as opposed to employees of the
University or in classroom situations?
3. Does the evidence show that the SIU-Carbondale
AA/EEO policy, which the district court found was
facially neutral, has been applied neutrally? How are
investigations of violations of the policy initiated?
4. What are the membership and leadership require-
ments for other recognized student organizations,
No. 05-3239 25
including the Muslim Students’ Association, the Adven-
tist Campus Ministries, the Chi Alpha Christian
Fellowship, the Young Women’s Coalition, the Republi-
cans, the Democrats, and the Lesbian and Gay Law
Students and Supporters? Does SIU vet student organi-
zations’ constitutions to see if their membership policies
are compliant with the AA/EEO policy?
5. Have any other student organizations been denied
recognition? If so, under what circumstances? If not,
then what justification does SIU-Carbondale have for
starting with CLS?
If it turns out that CLS is the only student organization
that both (a) espouses views that are inconsistent with the
AA/EEO policy and (b) has been denied recognition as a
student organization, then there would be reason to fear
unlawful discrimination. See Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819 (1995). If, on the other
hand, the other organizations have accommodated their
rules and trusted to individual preference to attract the
desired participants, we would have a different case. It is
virtually impossible to evaluate the Law School’s action
with respect to CLS without knowing whether it conforms
or not to the treatment of similar organizations. CLS has
made extensive allegations about these other organizations
in its moving papers, but it gives us no reason to think that
it has direct knowledge of the internal policies of those
organizations. CLS has also included a smattering of
constitutions from other groups, but no one from those
groups has testified about the accuracy of those documents,
nor do we have anything that would tell us anything about
the interpretation or application of those constitutions.
II
The question remains whether CLS is entitled to a
preliminary injunction restoring its status as a recognized
26 No. 05-3239
student organization, pending a more complete investiga-
tion of these issues. In order to answer that question, we
must consider both the standard the district court was
obliged to follow in evaluating CLS’s request for a prelimi-
nary injunction and the standard of review that this court
applies on appeal. In Goodman v. Illinois Department
of Financial and Professional Regulation, 430 F.3d 432 (7th
Cir. 2005), a case in which a chiropractor brought a First
Amendment challenge against a state rule that prohibited
telemarketing of professional medical services, this court
had the following to say about the two relevant standards:
As the Supreme Court has observed, “[A] preliminary
injunction is an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quot-
ing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE
§ 2948, pp. 129-30 (2d ed. 1995)). To justify this relief,
movants must show that (1) they have a reasonable
likelihood of success on the merits; (2) no adequate
remedy at law exists; (3) they will suffer irreparable
harm which, absent injunctive relief, outweighs the
irreparable harm the respondent will suffer if the
injunction is granted; and (4) the injunction will not
harm the public interest. Joelner v. Vill. of Washington
Park, 378 F.3d 613, 620 (7th Cir. 2004) (citing Erickson
v. Trinity Theatre, Inc., 13 F.3d 1061, 1607 [sic] (7th
Cir. 1994)). A district court’s denial of a preliminary
injunction is reviewed for abuse of discretion. Ashcroft
v. Am. Civil Liberties Union, 542 U.S. 656, 664 (2004)
[(citations omitted)].
430 F.3d at 437.
The majority acknowledges this well-established law
briefly, ante at 5-6, but, citing Hurley v. Irish-American
No. 05-3239 27
Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557
(1995), it moves quickly to the observation that the review-
ing court must make an independent review of the record in
cases involving allegations of harm to interests protected by
the First Amendment. As Hurley makes clear, however, the
independent review of which the Court was speaking has to
do with the ascertainment of the underlying facts, not the
broader standard of review. See id. at 567. For example, the
reviewing court does not give the normal deference to
matters of witness credibility, nor does the usual “clearly
erroneous” standard of review cabin the examination of the
facts. Id. Thus, in Hurley, where the parties disagreed
whether a parade had the element of expression necessary
to implicate the First Amendment, the Court decided this
issue for itself. This does not mean that the Court aban-
doned the abuse of discretion standard of review for appel-
late courts in cases involving First Amendment rights. If
there was any doubt about that, the Court put it to rest in
Ashcroft v. American Civil Liberties Union, which involved
a First Amendment challenge to a statute designed to
protect minors from exposure to sexually explicit materials
on the internet. 542 U.S. at 659-60. Reviewing a decision by
the lower courts to enjoin that statute because it probably
violated the First Amendment, the Court wrote:
This Court, like other appellate courts, has always
applied the abuse of discretion standard on review of a
preliminary injunction. The grant of appellate jurisdic-
tion under [28 U.S.C.] § 1252 does not give the Court
license to depart from established standards of appel-
late review. If the underlying constitutional question is
close, therefore, we should uphold the injunction and
remand for trial on the merits. Applying this mode of
inquiry, we agree with the Court of Appeals that the
District Court did not abuse its discretion in entering
the preliminary injunction.
Id. at 664-65 (internal quotations and citations omitted).
28 No. 05-3239
It is important to note that the existence of a close
question logically implies that the district court does not
abuse its discretion when it chooses one result over another.
A pair of cases in this court in which an alarming pattern
of prosecutorial misconduct emerged in criminal trials of
high-level drug dealers affiliated with the notorious El
Rukn gang illustrates this point well. In United States v.
Boyd, 55 F.3d 239 (7th Cir. 1995), the district court judge
had decided that some of the defendants were entitled to a
new trial; applying the abuse of discretion standard to that
decision, this court affirmed. See id. at 246 (“The issue is
judgmental. The responsibility for the exercise of the
requisite judgment is the district judge’s and we are to
intervene only if strongly convinced that he judged wrong.
We are not strongly convinced.”). Later, in United States v.
Williams, 81 F.3d 1434 (7th Cir. 1996), another district
court judge responsible for a different group of defendants
concluded that no new trial was necessary. Once again, this
court affirmed, with the following comments:
Another point that is difficult for nonlawyers to under-
stand or accept is that because the question whether to
grant a new trial is committed to the discretion of the
district judge, as the defendants rightly concede, it is
possible for two judges, confronted with the identical
record, to come to opposite conclusions and for the
appellate court to affirm both. That possibility is im-
plicit in the concept of a discretionary judgment. If the
judge could decide only one way he would not be able
lawfully to exercise discretion; either he would be
following a rule, or the circumstances would be so
one-sided that deciding the other way would be an
abuse of discretion. If the judge can decide either way
because he is within the zone in which he has discre-
tion—can decide either for or against the grant of a new
trial—this implies that two judges faced with the
identical record could come to opposite conclusions yet
both be affirmed.
No. 05-3239 29
When we affirmed Judge (now Chief Judge) Aspen’s
grant of a new trial to the defendants in the Boyd case,
we went out of ur way to make clear that we were
affirming not because we thought he necessarily was
right but because we thought he was reasonable, that
he had not “abused his discretion.” Because we found no
abuse of discretion in his having granted a new trial we
had no occasion to decide whether we would also have
affirmed him had he denied a new trial or whether, on
the contrary, it was one of those one-sided cases where
only one ruling is possible. So the fact that Judge Mills
on a record very similar, though . . . not identical, to
that before Judge Aspen made the opposite ruling does
not necessarily require, as a matter of maintaining
consistency with our decision in Boyd, that we reverse
Judge Mills.
Id. at 1437-38 (internal citations omitted). Bearing this
in mind, the Supreme Court’s decision to affirm the issu-
ance of the preliminary injunction in Ashcroft v. ACLU in
no way suggests that the Court would have reversed had
the district court come to the opposite conclusion. The closer
the question, the more room there is for the exercise of
thoughtful discretion.
III
With the facts, such as they are, and these standards
in mind, all that remains is to consider whether the district
court’s decision to deny the injunction that CLS requested
was an abuse of discretion. The principal reasons why the
majority believes that the answer to this question is yes are
its conclusions that irreparable harm to CLS must be
presumed, that money damages will be inadequate, and
that an injunction automatically would be in the public
interest. Ante at 6. I do not take issue with those proposi-
tions in the abstract. Nevertheless, litigants must show
30 No. 05-3239
more than these points before they are entitled to a prelimi-
nary injunction. Specifically, they must demonstrate two
more elements: (1) likelihood of success on the merits, and
(2) the irreparable harm that the proponent of the injunc-
tion will suffer without it outweighs the irreparable harm
the opponent of the injunction will suffer with it. In my
view, CLS has not satisfied these burdens at this early
stage. I take the two points in turn.
A. Likelihood of Success on the Merits
The majority offers three reasons for its conclusion that
CLS is likely to succeed on the merits: first, that CLS may
not have violated any SIU policy; second, that SIU may
have infringed impermissibly on CLS’s right of expressive
association; and third, that SIU violated CLS’s free speech
rights by ejecting it from a speech forum in which it had
a right to remain. Ante at 6-7. The record as it now stands,
even interpreted independently, fails to support any of
those assertions.
The policy that applies to SIU’s action is the AA/EEO
policy, which promises that SIU will “provide equal employ-
ment and education opportunities for all qualified persons
without regard to . . . sexual orientation.” Recognized
student organizations play an integral role in the educa-
tional process offered by universities, as the Supreme Court
recognized in Board of Regents of University of Wisconsin
System v. Southworth, 529 U.S. 217, 222-23 (2000) (noting
that “[i]n the University’s view, the activity fees ‘enhance
the educational experience’ of its students by ‘promot[ing]
extracurricular activities,’ ‘stimulating advocacy and debate
on diverse points of view,’ enabling ‘participa[tion] in
political activity,’ ‘promot[ing] student participa[tion] in
campus administrative activity,’ and providing ‘opportuni-
ties to develop social skills,’ all consistent with the Univer-
No. 05-3239 31
sity’s mission”). The Court there held that “[t]he University
may determine that its mission is well served if students
have the means to engage in dynamic discussions of
philosophical, religious, scientific, social, and political
subjects in their extracurricular campus life outside the
lecture hall.” Id. at 233. Rosenberger also involved the
extracurricular part of the university experience. 515 U.S.
at 824 (noting that “the purpose of the [Student Activities
Fund] is to support a broad range of extracurricular student
activities that ‘are related to the educational purpose of the
University’ ”). SIU was therefore on well-trodden ground
when it notified CLS that its AA/EEO policy applied to
student organizations that sought official recognition
because such recognized student groups provide educational
opportunities. Given that SIU’s purpose in recognizing
student organizations is to provide educational opportuni-
ties for its law students, it follows that any recognized
organization must follow the rules for the school’s “educa-
tion opportunities.” If such an organization (here CLS)
discriminates on any basis forbidden by the policy, it is
subject to corrective measures. This is enough, in my view,
to tip the balance on “likelihood of success on the merits” to
SIU’s side.
The majority attempts to avoid this conclusion by drawing
a distinction between discrimination on the basis of sexual
orientation and discrimination on the basis of sexual
conduct. The record contains absolutely no evidence,
however, either supporting or refuting the notion that CLS
actively bans from membership or leadership positions
heterosexual students who may be sexually active outside
the boundaries of marriage. Likewise, the record is thor-
oughly devoid of evidence indicating that a gay or lesbian
who has chosen not to be sexually active has been permitted
to be a member or leader of CLS. Furthermore, in light of
the Supreme Court’s recognition in Lawrence v. Texas, 539
U.S. 558 (2003), that adult, homosexual, individuals “are
32 No. 05-3239
entitled to respect for their private lives,” that the “State
cannot demean their existence or control their destiny by
making their private sexual conduct a crime,” and that
“[t]heir right to liberty under the Due Process Clause gives
them the full right to engage in their conduct without
intervention of the government,” id. at 578, it seems
unlikely that a State that wishes to ban both forms of
discrimination is forbidden from making this choice. (This
is not to say that the State is required to take this step; the
military, for example, has not yet done so, and the Supreme
Court’s decision in Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 126 S. Ct. 1297 (2006) (FAIR),
indicates that its policy is permissible too.)
Next, the majority worries that SIU’s policy infringes on
CLS’s right of expressive association. But, unlike the rule
at issue in Boy Scouts of America v. Dale, 530 U.S. 640
(2000), SIU has in no way tried to compel CLS to admit
members or to elect officers that offend its precepts. It has
said only that CLS must content itself with the benefits and
support given to non-recognized student organizations,
rather than also receiving the additional perks that go
along with recognized status. The Supreme Court has often
drawn a line between rules that compel conduct and rules
that merely withhold benefits. In the area of abortion, for
example, Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 846 (1992) (plurality), reaffirms the
“central holding” of Roe v. Wade, 410 U.S. 113 (1973),
forbidding the states from banning abortion outright, but as
early as 1977, the Court recognized in Maher v. Roe, 432
U.S. 464 (1977), that the State was under no obligation to
provide affirmative financial support to indigent women
who sought abortions. It did so even as it reaffirmed the
woman’s fundamental right to choose whether or not to
terminate her pregnancy. See id. at 475 (“There is a basic
difference between direct state interference with a protected
activity and state encouragement of an alternative activity
No. 05-3239 33
consonant with legislative policy.”). The same principle
applies here: SIU has left CLS entirely free to adopt
whatever policies it wants; it has simply declined to give
certain additional assistance (financial and in-kind) to
organizations that violate its nondiscrimination policy.
Nothing SIU has done infringes on CLS’s freedom of
expressive association, and so this theory cannot support a
finding that CLS is likely to succeed on the merits.
In finding otherwise, the majority relies heavily on the
Supreme Court’s decision in Healy v. James, 408 U.S. 169.
But a closer look at Healy shows instead why SIU’s ap-
proach to CLS is permissible. In Healy, certain students
wanted to establish a chapter of the Students for a Demo-
cratic Society (SDS), which in the late 1960s and early
1970s was a self-styled “radical” campus group. Central
Connecticut State College decided that it did not want SDS
anywhere near it. It thus not only refused to confer “recog-
nized” status on the aspiring SDS chapter, it also refused to
allow the SDS group to meet on campus, or to make an-
nouncements about meetings and rallies through college
newspapers and bulletin boards. Still not satisfied, it took
the rather extraordinary step of refusing to let the SDS
students meet (i.e. sit together) in the campus coffee shop!
Id. at 181. SIU’s actions were nothing like this. SIU permit-
ted CLS to have free access to the law school’s classrooms
for its meetings; it never banned CLS from campus coffee
shops or other facilities. Although CLS would need to pay a
fee to use the auditorium, its activities as a practical matter
were unaffected by that rule, as CLS was a tiny group of six
to 12 students. The record says nothing about avenues such
as fee waivers or admission charges that might have been
available if CLS had wanted to sponsor a large program of
general interest to the SIU community. Moreover, the
importance that physical campus bulletin boards have today
is nothing like the situation in 1972. Most universities and
colleges, and most college-aged students, communicate
34 No. 05-3239
through email, websites, and hosts like MySpace®. Again,
although SIU might not have facilitated CLS’s efforts to set
up a website and to send emails to other potentially inter-
ested students, it did nothing to prohibit CLS from taking
advantage of electronic access methods. (If CLS had its own
website, any student at the school with access to
Google—that is, all of them—could easily have found it.)
Healy, in short, offers an example of real exclusion from
campus; our case presents a counterexample of neutrality
toward organizations that do not have formal recognition,
but that are otherwise welcome to operate on their own.
Finally, the majority accepts CLS’s argument that the
University violated its free speech rights by ejecting it from
a nonpublic forum without a compelling interest. The
majority concedes that the record does not contain enough
information to make a definitive decision on the nature of
the forum. It suggests that the record contains evidence
that SIU has applied its AA/EEO policy in a discriminatory
way, ante at 19, but the bare texts of a few other alleged
constitutions, unverified and without context, are too weak
a reed on which to rely. Not a single person from the
Muslim Students’ Association, or the Adventist Campus
Ministries, or the Young Women’s Coalition testified, or
even provided an affidavit, and so we have no way of
knowing whether those organizations were actively discrim-
inating on a prohibited basis. Such evidence, in my view, is
critical to the outcome of this case. I agree with the majority
that if SIU has somehow singled out CLS for adverse
treatment, while tolerating discriminatory practices in
violation of its policy for other similarly situated organiza-
tions, its position is far more tenuous. The record at this
point, however, gives us no reason to think that the Univer-
sity is behaving in such a foolish manner, and I
am unwilling to indulge in the presumption that a body that
is legally part of the State of Illinois is violating the federal
and state constitutions.
No. 05-3239 35
B. Balancing of Harms
The last point relates to the balancing of harms between
whatever detriments CLS will suffer if it is denied recogni-
tion pending the outcome of this case and the injury that
SIU will suffer if it is forced to recognize CLS. CLS un-
doubtedly has a strong interest in its associational freedom,
but, as I have already noted, nothing that SIU is doing
directly impedes that freedom, and the indirect effects of
SIU’s policies are mild. That alone distinguishes this case
from Dale and Healy. Another important difference between
our case and Dale stems from the fact that CLS is trying to
force an affiliation between itself and a state institution.
Dale was about the prerogative of a private institution to
set standards for members and leaders. Here, the State of
Illinois, through its universities, has a strong countervailing
interest—indeed, in many instances, a compelling constitu-
tional duty—in giving equal treatment to all of its citizens.
If CLS wanted to forbid membership to all African-Ameri-
cans, or to mixed-race wedded couples, or to persons of
Arabic heritage, surely SIU would be entitled at a minimum
to say that such an organization would have to sustain itself
without any state support—even if it could root such a
membership policy in a religious text. Furthermore, while
the direct impact of CLS’s membership policy might be to
exclude certain people from that student group, the indirect
impact of CLS’s recognition of a student group maintaining
such a policy is that SIU, intentionally or not, may be seen
as tolerating such discrimination. Given that universities
have a compelling interest in obtaining diverse student
bodies, requiring a university to include exclusionary
groups might undermine their ability to attain such diver-
sity. As the Supreme Court noted in Grutter v. Bollinger,
539 U.S. 306, 328-29 (2003) (internal citations omitted):
The Law School’s educational judgment that such
diversity is essential to its educational mission is one to
which we defer. The Law School’s assessment that
36 No. 05-3239
diversity will, in fact, yield educational benefits is
substantiated. . . . Our scrutiny of the interest asserted
by the Law School is no less strict for taking into
account complex educational judgments in an area that
lies primarily within the expertise of the university.
Our holding today is in keeping with our tradition of
giving a degree of deference to a university’s academic
decisions, within constitutionally prescribed limits.
We have long recognized that, given the important
purpose of public education and the expansive freedoms
of speech and thought associated with the university
environment, universities occupy a special niche in our
constitutional tradition. In announcing the principle of
student body diversity as a compelling state interest,
Justice Powell invoked our cases recognizing a constitu-
tional dimension, grounded in the First Amendment, of
educational autonomy: “The freedom of a university to
make its own judgments as to education includes the
selection of its student body.” . . . Our conclusion that
the Law School has a compelling interest in a diverse
student body is informed by our view that attaining a
diverse student body is at the heart of the Law School’s
proper institutional mission, and that “good faith” on
the part of a university is “presumed” absent “a show-
ing to the contrary.”
Thus, even if SIU’s AA/EEO policy somehow infringes upon
a First Amendment right of CLS or its members, that
infringement may be justified if it is in furtherance of a
compelling state interest, or, at the least, must be balanced
against the harm to SIU from being forced to accept into its
expressive association a group that undermines its message
of nondiscrimination and diversity. To take away SIU’s
ability to enforce its nondiscrimination policy
may undermine “[t]he freedom of a university to make its
own judgments as to education.”
No. 05-3239 37
Far from undermining this point, the Supreme Court’s
recent decision in FAIR, 126 S. Ct. 1297, underscores the
interest of SIU and its Law School in their own speech, and
their own associational rights. In FAIR, the Court drew a
sharp distinction between the speech of outsiders, including
the military recruiters whose policy toward gays and
lesbians conflicted with that of the law schools, and the
speech of members of the community:
But recruiters are not part of the law school. Recruiters
are, by definition, outsiders who come onto campus for
the limited purpose of trying to hire students—not to
become members of the school’s expressive association.
This distinction is critical. Unlike the public accommo-
dations law in Dale, the Solomon Amendment does not
force a law school to accept members it does not desire.
126 S. Ct. at 1312 (internal quotations and citations omit-
ted). Here, CLS is trying to do exactly that: it is trying to
force SIU’s Law School to accept a “member” (that is, a
recognized student organization) that SIU does not desire.
The whole point of this litigation is to transform CLS from
an outsider, like the military recruiters in FAIR, into an
insider.
In my view, the district court was entitled to conclude
that this is a weighty interest on the side of the University.
Because CLS has failed to show a likelihood of suc-
cess on the merits and because it has no fundamental right
to the benefits SIU believes should be withheld from it as
long as it does not comply with the affirmative action policy,
I would find that the district court did not abuse its discre-
tion when it refused to grant the preliminary injunction.
I therefore respectfully dissent.
38 No. 05-3239
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-10-06