UNPOPULAR STUDENT GROUP PREVAILS IN ALABAMA

Robert E. Manley, Manley & Burke

The Student Government Association of Auburn University voted to deny the Auburn Gay and Lesbian Association permanent status as an officially recognized campus organization in the fall of 1991. From this decision flowed a furious constitutional controversy.

The campus administration overruled the Student Government Association and recognized the Auburn Gay and Lesbian Association. People connected with the Auburn University lobbied the State Legislature. The State Legislature passed a resolution denouncing the University’s official recognition of this unpopular student group. The resolution stated: “That the House of Representatives of Alabama does not condone violations of the laws of the State of Alabama, nor does it recognize a homosexual lifestyle as an acceptable or legal alternative lifestyle, but rather acknowledges that the State of Alabama is and resolves that it shall remain historically traditional in its view of the family, and that the State of Alabama is a place where families can live and grow without being debased or immoralized.”

The political furor culminated in the adoption of Alabama Code Section 16-1-28 (1995), which prohibits the use of public funds or facilities by any college or university to “directly or indirectly, sanction, recognize, or support the activities or existence of any organization or group that fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws” of the State of Alabama.

The statute also says that no organization or group “that receives public funds or uses public facilities) directly or indirectly, at any college or university shall permit or en­ courage its members or encourage other persons to engage in any such unlawful acts or provide information or materials that explain how such acts may be engaged in or performed.”

The statute has an express exemption for groups that choose to lobby to amend the Alabama laws dealing with sex crimes.

The University of South Alabama has over one hundred registered student organizations. These student organizations are eligible to receive funding from the University, to receive on-campus banking services and the use of campus meeting rooms.

One such organization is the Gay, Lesbian, Bisexual Alliance (GLBA) that has as its stated purpose: “To provide a foundation for unification for homosexual and non-homosexual people of the student population, in order to draw support to further our efforts in educating all members of the University community on the fears and dangers of homophobia and to provide a support system for the University of South Alabama’s homosexual students.”

[The message of the Alabama cases is that state universities will have a hard time refusing to recognize Greek organizations because of official dislike of the purposes of the Greek organization.]

Because of the Alabama statute, the University denied on-campus banking services to the Gay, Lesbian, Bisexual Alliance and also denied funding for the GLBA to bring speakers on campus on two occasions. The Attorney General of the state issued a written opinion that GLBA could receive no support from the University. The opinion did not state how the GLBA violated the Alabama statute.

The United States District Court for the Middle District of Alabama held that the statute was an unconstitutional infringement on the students’ First Amendment rights in Gay, Lesbian, Bisexual Alliance, v. Jeff Sessions, ct al. 917 F. Supp. 1548 (1996) affirmed by the United States Court of Appeals at 110 F.3d 1543 (1997).

The courts relied upon the important decision in which the University of Virginia was found to violate the First Amendment rights of students by refusing to fund a newspaper that had a Christian viewpoint. The reasoning of the Supreme Court was that once the state creates a forum, it cannot discriminate based upon whether the state approves or disapproves of the viewpoint taken by people who are eligible to participate in the forum. Rosenberger v. Rector and Visitors of the University of Virginia l l 5 S.Ct. 2510 (1995). (See January 1997, Fraternal Law #59.)

The United States Court of Appeals in the Alabama case relied upon the words of Justice Kennedy in the University of Virginia case: “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. These principles provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation.” (115 S.Ct. at 2516.)

The Court of Appeals found that the University of South Alabama “prohibited funding to the GLBA based on the Attorney General’s unsupported assumption that GLBA fosters or promotes a violation of the sodomy or sexual misconduct laws. The statute discriminates against one particular viewpoint because state funding of groups which foster or promote compliance with the sodomy or sexual misconduct laws remains permissible. This is blatant viewpoint discrimination.”

The older case of Healy v. James 408 U.S. 169, 92S.Ct. 2338 (1972) was not cited by the courts in the Alabama decisions, but its fundamental principle that a state university may not refuse to recognize a student organization because of an unwillingness to allow the student organization to express its favored opinions is alive and well. In the Healy case, the university refused to recognize the Students For Democratic Society, an activist group in the sixties that was often characterized as being radically anti-government. The message of the Alabama cases is that state universities will have a hard time refusing to recognize Greek organizations because of official dislike of the purposes of the Greek organization.

In addition, the case shows that a student organization can afford to sue a state university to preserve its recognition status. In a follow–up decision, the trial court awarded the Gay, Lesbian, Bisexual Alliance from South Alabama University attorney fees and litigation expenses of $81,556.21.

A successful plaintiff who prevails in a lawsuit against defendants who use the color of state law to deprive the plaintiff of rights, privileges, or immunities under the constitution and laws of the United States is entitled to recover his attorney fees under the provisions of Title 42, Section 1988 of the United States Code. Not only did the State of Alabama lose the case, its university was required to pay the plaintiffs attorney fees.