In our
representation of CLS chapters, we have consistently invoked Healy.
Healy is cited in the Seventh Circuit's grant
of our motion for injunction pending appeal of a federal district court's
denial of our motion for preliminary injunction in our lawsuit against Southern
Illinois University officials. (The appeal itself was argued
Wednesday.)
In the
wake of Healy, a number of lower federal courts held in the '70s and
'80s that public universities (UNH, VCU, Texas A&M, etc.) violated the
constitutional rights of gay student groups and ACLU student chapters by denying
them recognition and benefits. It is no small irony that these cases
support the legal claims of theologically conservative Christian groups that
have been de-recognized in recent days.
Greg
Baylor
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Thursday, October 20, 2005 10:16 PM
To: religionlaw@lists.ucla.edu
Subject: Faith tests okayed for campus Christian group at ASUIn all the posts on the issue of imposing nondiscrimination rules on campus religious groups, no one has mentioned Healy v. James, 408 U.S. 169 (1972). That case held unanimously (Rehnquist concurred with reservations) that withholding official recognition and use of university facilities from a proposed campus chapter of SDS substantially burdened the right to freely associate for expressive purposes, and that recognition could be withheld only on the basis of the substantial disruption standard in Tinker v. Des Moines Community School District (U.S. 1969).There are a couple of references to the college's authority to require SDS to agree to comply with reasonable campus rules, but the context for those statements was rules about physical disruption, not rules about nondiscrimination. And of course the Court could only mean constitutionally valid rules. Boy Scouts v. Dale suggests a broad right of expressive associations to control their membership; so do some of the cases on internal affairs of political parties (although their rights are more limited because of their perform state functions and and the two big parties often get special privileges in the election process). The right of churches to control their own membership has not been litigated, but surely that is because they so obviously must have such a right.Healy v. James does not directly answer the question about discrimination rules, but it does answer the questions about what right is at stake here and whether the claim to recognition depends upon a forum, etc.For those too young too remember, SDS was Students for a Democratic Society, a leftist student group formed in 1964 with high ideals, some of whose members soon turned violent -- some of them seriously violent. When I once mentioned Healy v. James in answer to a question from the legal counsel to a very senior United States Senator, he asked, "What's SDS?" I was initially dumbstruck, but I learned. Some of us on this list are getting old.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341512-471-6988 (fax)
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