Christian Legal v. Walker, James E.

III. Cоnclusion more one than susceptible terms v. Ethyl Corp. Forcum- interpretation.” reasons, For the above stated we Affirm Inc., Assocs., N.E.2d Lannom judg- grant summary court’s of the district omitted). (citations (Ind.App.1982) 1217-18 in favor of the ment defendants. of The Sellars’ settlement plain language not include health insurance

agreement did gives The no indica- agreement

benefits. include benefits

tion of an intent to pension. to the

addition

Furthermore, we to find even were ambiguous, agreement Sellars settlement Chap- SOCIETY, LEGAL CHRISTIAN timely request make for bene- failed to University ter at Southern Illinois quoted para- fits. The district court Law, Organiza- a Student School of Em- “City Gary, of Indiana graph of tion at the Illinois Universi- Southern Plan,” governs which ployee Health Care ty of Law on behalf of itself School members, alleges he is due. This the benefits Sellars individual Plaintiff- and its Appellant, paragraph states: Firefighters & Police Of- sworn

Retired ficers, City of who are members of the WALKER, E. in his official ca- James fund, are Gary pension Fire or Police pacity Illi- of President of Southern coverage The eligible to continue under University, Alexander, in Peter C. nois Plan City Gary Health Care capacity Dean his official as of South- time retire- insured persons University Law, ern Illinois School Davis, capaci- ... decision to continue the ment. J. her official Jessica ty Devel- date as Director of Law Student be made on or before the plan must al., Defendants-Appellees. opment, et retirement, coverage(s) will otherwise cannot be reinstated. terminated No. 05-3239. date of retire- undisputed It is that Sellars’ of Appeals, States Court United He not re- April ment 1997. did was Circuit. Seventh time, nor has quest health benefits Argued 2005. Oct. was insured under the he shown that he Gary Plan on that date. City of Health July Decided requested health insurance Sellars first January only after a

benefits plan was offered retirees

discounted already participating the plan.

who were “City requirements

Under the Employee Health Care

Gary, Indiana Bargaining

Plan” the 2003 Collective to elect

Agreement, which allowed retirees plan health care within

participate retirement, days application Sellars’ eligibility expired. his

was made well after organization

cial student status be re- stored, the district court but denied motion. reverse. We Background I. University Illinois Southern Carbon- Law, public dale and its School univer- school, sity encourage and support and law variety organizations a wide of student apply recognition. invite them to for official recognition are If The benefits of several. officially school, the law include access to benefits (the the law law school List-Serve school’s addresses), permission database of e-mail post information on school law bulletin boards, appearance an on lists official organizations publi- student in law school website, ability cations on its the to and meeting reserve conference rooms and and advisor, storage space, faculty and law money. During the school 2004-2005 Law year, school SIU School of Baylor Springfield, Gregory (argued), S. organizations among seventeen student — VA, Plaintiff-Appellant. for Association, them, Black Law the Student Tueth, (argued), Keeney, P. Cooper Ian Hispanic Law Society, the Federalist the Jackstadt, Louis, Cooper, Mohan & St. Association, Demo- Student Law School MO, Defendants-Appellees. crats, and and Law Students Gay Lesbian KANNE, WOOD, SYKES, Republicans, Supporters, and Before SIU Law School Fund, Judges. Circuit Legal Animal Defense Student Forum, Recogni- Law and CLS. Women’s SYKES, Judge. Circuit by law does not automati- tion school The dean of Southern Illinois Universi- cally recogni- upon organization bestow (“SIU”) Law revoked the ty’s School of university, larger however. by tion organization status official student that, sepa- organizations For must make (“CLS”) Society Legal chapter Christian SIU; upside to is even application rate at SIU because he concluded CLS’s register with Groups more benefits. membership policies, preclude which mem- (it university money university get also affirm engage to those who or bership much) and access to meet- is not clear how conduct, homosexual violate SIU’s nondis- center. ing space at the student policies. crimination CLS sued SIU registered had student June 2005 SIU rights to violating its First Amendment organizations. association, and speech, free legal association CLS is nationwide religion, and its free exercise of Four- who share and law students professionals rights protec- equal teenth Amendment a common faith —Chris- (broadly speaking) moved for a process. tion and due CLS to sub- tianity. expected that its Members are injunction, asking offi- preliminary agree opportunities quali- of faith to education for all to a statement scribe color, race, principles. regard moral One of persons live certain fied without sex, origin, the one that has caused principles, religion, age, those national disabili- case, sexual dispute in this is that ty, status as a disabled veteran of (one man, era, activity orientation, a traditional outside of marital Vietnam sexual or woman) marriage is forbidden. That one a policy status.” The second is of the SIU means, in adul- addition fornication and provides Board Trustees which tery, disapproves active homosexuali- CLS constituency recog- body or “[n]o anyone ty. meetings, CLS to its welcomes organization shall be author- nized voting of the but members officers to all appropriate ized unless it adheres to the state- must subscribe concerning federal state laws nondiscri- faith, among other meaning, ment equal opportunity.” mination and As a things, they must not in or engage longer of derecognition, result CLS was no fornication, approve adultery, or homo- рri- to reserve able law school rooms for conduct; or, so, having done must sexual meetings. vate could use law school repent of that conduct. meet, privately— but not classrooms faculty other students and were free In February complained 2005 someone and go come from the room. also to SIU about and lead- membership CLS’s was denied access to law school bulletin ership requirements preclude active boards, representation on the law school’s voting homosexuals becoming mem- or in lib- publications, website and the bers or officers. SIU informed CLS erty refer to Chapter itself as “SIU complaint and asked to see a statement of Society. Finally, of’ the Christian Legal policies. membership leadership faculty was an stripped CLS of official obliged. explained CLS It while that advisor, free use of the SIU School of Law “[a]ny student is participate welcome auditorium, access to the law List- school’s chapter meetings CLS and other activi- Serve, ties,” provided regis- funds voting members and must officers organizations. tered student subscribe to basic principles certain beliefs contained CLS’s statement of against brought CLS suit the dean and faith, “including prohibition the Bible’s of other several SIU officials—we will use sexual of persons conduct between the shorthand “SIU” refer to аll the same sex.” also that CLS told quickly defendants' —and moved for a pre- person may “who have engaged in homo- liminary injunction. CLS claimed that past sexual conduct in the repent- but has SIU violated First Amendment conduct, of that or ed who has homosexual association, rights expressive free engage inclinations but does not in or af- speech, and free of religion. exercise CLS conduct, firm homosexual not would alleged that it equal pro- also was denied prevented serving an as officer process. tection due On the basis of member.” the record information we have recounted here, motion, district court denied the response, the law school re- dean holding that CLS’s likelihood success registered organiza- voked CLS’s status, merits ... was “at best a close telling ques- tion CLS that “tenets of the national tion.” The district court also university CLS” violated two held policies. irreparable is CLS had not suffered harm The first SIU’s Affirmative Action/Equal Employment because CLS still as an Opportunity organiza- existed Policy. tion, In pertinent part, just states without or- the official student “provide equal SIU will employment ganization recognition and con- benefits

859 most, Gay, At Irish-American Lesbian & Bisexual university. said ferred judge, derecog- Boston, harm from Group the district 515 U.S. 115 judge As the “speculative.” nition was 2338, (1995); L.Ed.2d 487 see it, merely have to “use would saw Dale, Boy also Am. v. Scouts of meeting ways and other areas other 2446, 648-49, 120 S.Ct. 147 L.Ed.2d communicate” with students. (2000). On a review of the district an injunc- moved for appealed and preliminary injunction, court’s denial of a appeal, focusing primarily on pending tion novo, legal are de conclusions reviewed claim and its association findings evidentiary of historical or fact for speaking access to a forum. right of error, in balancing clear and the injunction appeal, pending we Granting junction for an abuse of discretion. factors preliminarily CLS had concluded Joelner, F.3d at 620. Our task is success on the likelihood of reasonable simplified here because the first two irreparable had shown merits and injunction disputed. are The loss factors expedited The matter was and has harm. of First presumed Amendment freedoms is fully argued. briefed and Our now been irreparable injury constitute changed. has not decision damages adequate, which are money injunctions Amend protecting First II. Discussion always ment in the freedoms preliminary injunction, To win Burns, Id.; interest. see also Elrod v. reasonably must show that it is like party L.Ed.2d merits, ly suffering on the it is to succeed (1976) (“The Amendment loss First outweighs any harm harm irreparable freedoms, periods minimal for even if nonmoving party suffer the in will time, irrepara constitutes unquestionably junction no granted, adequate there is injury.”). ble law, injunctiоn and an would not remedy at public interest. Joelner v. harm the Vill. (7th Park, 613, 619 378 F.3d Wash. A. on the Merits Likelihood Success Cir.2004). moving party If the meets court The district concluded burden, court weighs the district threshold preclude did derecognition because not against sliding in a

the factors one another (it expressing itself meeting CLS from id., analysis, say is to the scale which just had without the benefits to do so must its court exercise discretion district brings), official status student of harms to determine whether the balance had a likelihood of success CLS not shown moving party or weighs favor disagree. There are on the merits. We nonmoving party or whether likely to reasonably sufficiently three reasons CLS will be harmed interest merits, injunction should be denied. one succeed on the carry burden. enough them is CLS’s case, In a we First Amendment First, actually violated is not clear CLS independent re required make an justification was any SIU which policy, “the of the record because reaches view revoking offered for its de ultimately First Amendment are Second, has CLS organization status. embrace,” facts held to by the it is fined impermissibly shown likelihood SIU reviewing decide court must inde and the as infringed right on CLS’s pendently given whether “a course of con a likeli Finally, CLS shown sociation. far side of line duct falls on the near or speech free hood that violated CLS’s protection.” Hurley v. SIU of constitutional conduct, rights by ejecting speech it from a fornm al but its membership require- in which it had a to remain.1 ments do not exclude members on the basis of sexual orientation. CLS’s state- Whether CLS Violated Universi- specifies, ment of faith among other ty Policy things, a belief sinfulness “all acts matter, As an initial it is doubtful that of sexual conduct design outside of God’s CLS violated either of policies marriage for between one man and one grounds derecognition. cited as One is woman, fornication, which acts include of Trustees providing Board adultery, homosexual conduct.” constituency body recog- “[n]o Those who engage sexual conduct out- student organization nized shall be author- side of a traditional marriage are not invit- ized unless it adheres to all appropriate ed to become they CLS members unless federal or state concerning laws nondiscri- repent the conduct and affirm the state- equal mination opportunity.” ment of faith. Through two rounds of briefing in this In response to inquiry the law school’s injunction Court—one for the pending ap- policies, about its membership CLS ex- peal and one on the merits —SIU failed to plained that it interprets its statement of identify which federal or state law it be- faith to persons may allow “who have ho- lieves pointed CLS violated. We out mosexual inclinations” tо become members shortcoming in our granting order long they CLS as as do not engage in or injunction (Order pending appeal. affirm homosexual conduct. The same is 3.) Aug. But when invited once true of unmarried persons: heterosexual again at oral argument identify a feder- persons heterosexual who do not partici- al or violated, state law CLS had SIU was pate in or condone heterosexual conduct still unable to question. answer the This marriage may outside of become CLS specter least, raises the of pretext; at the members; engage those who in unmarried this ground asserted derecognition sim- heterosexual conduct and do repent ply drops out of the case. that conduct and affirm the statement of SIU also claims CLS violated the faith may not. membership policies university’s Affirmative poli Aetion/EEO are thus based on belief and behavior rath- cy, which states that “provide SIU will status, er than language and no in SIU’s equal employment and education opportu policy prohibits this. qualified nities for all persons without re There are other reasons skeptical we are gard to[, among things,] other sexual or that CLS violated SIU’s Affirmative Ac- ientation.” skeptical We are that CLS First, policy. violated policy. does not em- requires tion/EEO ploy anyone. Second, members and readily officers to adhere it is not to and conduct apparent themselves (though accordance with a certainly argument system belief regarding made) standards of sexu- could be that CLS should be consid- lawsuit, 1. There are Amendment, other claims in this but Exercise Clause of the First the we do not address appeal Equal them on this be- Protection Clause of the Fourteenth parties cause the have energies focused (alleging their Amendment apply that SIU does not expressive on the speech association and free its policies nondiscrimination in an evenhand- argues claims. CLS way), SIU violated the ed and the Due Process Clause of the unconstitutional conditions doctrine condi- Fourteenth Amendment. These claims have tioning recognized organization waived; student free, status parties not been indeed the are relinquishment on the of rights. constitutional likely, and as we pursue understand it to them addition, CLS claims SIU violated the Free when the case is back in district court.

861 (2006) (“FAIR”); Dale, 156 530 U.S. at opportunity” “education for an SIU ered 647-48, 2446; On policy. the applying of 120 v. purposes S.Ct. Roberts United Affirmative the point, 609, 622, 104 latter Action/EEO Jaycees, 468 States U.S. S.Ct. SIU, policy by applies its terms 3244, (1984); Healy 82 462 L.Ed.2d in the record for the support no there is James, 2338, 92 408 33 U.S. S.Ct. an extension of that ‍‌​​​‌‌​‌​‌​​‌‌​‌​​‌‌‌​​​‌​​​​‌​‌‌‌​​​‌‌‌​‌‌​‌‌‌​‍CLS is proposition (1972). L.Ed.2d The to asso 266 freedom albeit one private speaker, is a SIU. CLS (or majority pow ciate that the a assures (until derecognized) the receiving it was minority) or force its erful vocal cannot with public associated benefits express on groups views choose to But subsi- organization status. Dale, 647-48, unpopular 530 at ideas. U.S. organizations at uni- dized student may 120 S.Ct. 2446. action Government private speech, engaged are versities asso impermissibly burden freedom to messages. spreading state-endorsed not variety ways; in a are ciate of two of them & Rosenberger v. Rector Visitors See of or “imposing] penalties withold[ing] bene Va., 833-34, 819, 515 115 Univ. U.S. of fits from individuals because of their mem (1995) (ex- 2510, 132 L.Ed.2d S.Ct. bership in group” a disfavored and “inter- govern- plaining the difference between fer[ing] with the internal or spread a funding private groups of ment Roberts, affairs of at group.” 468 U.S. message and government-controlled gov- 623, 104 S.Ct. 3244. groups funding private simply of ernment views encourage diversity a Court has held private speakers); Regents also Bd. see example can be no clearer “[t]here Southworth, Sys. v. Univ. Wis. an intrusion into the internal structure 217, 229, 233, 120 S.Ct. U.S. than regulation affairs an association (2000). be a leap, It would L.Ed.2d group that forces to accept members take, suggest does and one SIU not Id. does desire.” Freedom to associ organizations mouthpieces not to “plainly prеsupposes ate freedom university. Dale, 530 U.S. at associate.” Accordingly, has demonstrated a Roberts, at (quoting 468 U.S. S.Ct. threshold ques- likelihood of success on the 3244). govern 104 S.Ct. When the of SIU’s stated tion of whether either accept member group ment forces a actually grounds applies. for derecognition group not welcome ship someone the does at face Regardless, accepting even value presence person unwelcome membership conclusion that CLS’s significant way group’s “affects university’s policies violated the antidis- viewpoint, gov ability to advocate” its policy, crimination has shown likeli- on free infringed group’s ernment has expressive on as- hood of success both Dale, 530 expressive association. dom claims, free speech and we sociation However, 648,120 “the 2446. now. to those move association, like expressive freedom of Id.; freedoms, see Expressive many 2. Association is not absolute.” Roberts, also Implicit in First Amendment associ Infringements speech, assembly, petition freedoms of scrutiny; subject ation are to strict together to ex gather is the freedom to “may be association right expressive press freedom to associate. ideas —the to ‘by regulations adopted overridden Academic & v. Forum Insti Rumsfeld — interests, stаte unrelated Inc., U.S.-,-- compelling serve Rights, tutional ideas, be 1297, 1311-12, that cannot -, suppression 164 to the 126 S.Ct. L.Ed.2d through significantly nificantly achieved means ability express less affect CLS’s to its ” (3) restrictive associational freedoms.’ disapproval activity? of homosexual Dale, 648, 120 (quot 530 U.S. at S.Ct. 2446 Does interest in expressive CLS’s associa- Roberts, 623, ing at outweigh tion university’s interest in 3244). eradicating against discrimination homo- Dale, 648-59,120 sexuals? See at U.S. Hurley

Dale and were “forced inclu- S.Ct. 2446. expressive sion” association cases. The held in Dale that a Court New goes It saying without that a Jersey prohibiting in law discrimination group engage must in expressive associa public accommodations could not con- tion in order to avail itself of the First stitutionally applied Boy to the Scouts to protections Amendment’s for expressive accept force the to an openly gay Scouts 648, association. Id. at 120 S.Ct. 2446. scoutmaster. The Court held that group CLS is a of people together bound presence openly gay of an scoutmaster by their shared Christian faith and a com “would significantly organiza- burden the “[s]howing mitment to the love of Christ to right oppose tion’s or disfavor homo- the campus community and community sexual conduct” and “[t]he state interests large by at proclaiming gospel in word in Jersey’s public embodied New accom- and deed” and “[a]ddressing question, justify modations law do not such a severe ‘What does mean to be a Christian Boy intrusion on the rights Scouts’ ” law?’ Members must dedicate them Dale, expressive freedom of association.” selves to the moral principles embodied U.S. S.Ct. 2446. Similar- faith; CLS’s statement of one of those ly, in Hurley, the Court held that Massa- principles is affirmance of “certain Biblical chusetts’ accommodations law could morality.” standards for sexual CLS in constitutionally not be applied to force a terprets prohibit the Bible to sexual con Day parade Boston St. Patrick’s organiza- duct outside of a traditional marriage be accept parade tion to unit marching un- such, tween one man and one woman. As der the gay banner of Irish and lesbian disapproves fornication, adultery, group. The Court held that “[w]hen the conduct, and homosexual and believes that applied expressive law is activity in the participation in or affirmation of such sex way here, it was done apparent object its activity ual is inconsistent with its state simply require speakers is modify ment of beliefs. It would be hard to ar the content of their expression to whatev- gue no one does—that CLS is not an —and er extent beneficiaries of the law choose expressive association. message tо alter it with a of their own.” Hurley, 515 U.S. at 115 S.Ct. 2338. question Our next is ap whether This, said, decidedly the Court “is a fatal plication of SIU’s antidiscrimination policy objective.” Id. at 115 S.Ct. 2338. to force inclusion of those who engage or affirm homosexual conduct signif would alleges application that SIU’s of its icantly affect ability to express its justification antidiscrimination as a disapproval Dale, of homosexual activity. for revocation of organiza- CLS’s student tion status S.Ct. 2446. To ask unconstitutionally intrudes upon question very nearly to answer it. expressive association. noted, As we have voting likelihood of success on while this claim members (1) turns on questions: three Is CLS an officers CLS must affirm and abide (2) association? Would the the standards of sexual conduct con forced inclusion of active sig- faith, homosexuals tained its statement of CLS meet-

863 fering expressive with freedom of all. SIU’s enforcement of CLS’s ings open are to association, upon policy penalty policy must serve a its antidiscrimination SIU’s com derecognition can be understood as pelling of state that is not interest related to CLS to alter its mem- intended to induce suppression of ideas and that cannot n merely to allow at- bership standards'—not through be achieved a less restrictive to by tendance nonmembers—in order 648, means. Id. at 120 S.Ct. 2446. Cer There can little recognition. maintain be tainly in the state an interest has eliminat CLS to make this requiring doubt that ing discriminatory providing conduct and ability to change impair express its would See, equal opportunities. e.g., access to homosexuality. disapproval active of Roberts, 624, 468 at 104 S.Ct. 3244. U.S. But the has made it Court clear organization. is a faith-based One regulations may that antidiscrimination of its is that sexual conduct outside beliefs applied to expressive be conduct with the marriage is It of a traditional immoral. purpose promot of or suppressing either sincerely to would be difficult Dale, ing particular viewpoint. 530 effectively message of U.S. convey disapprov- 659-61, 2446; if, Hurley, of conduct at 120 types al certain at S.Ct. 515 time, accept 578-79, 115 who at same it must members U.S. S.Ct. in CLS’s engage that conduct. beliefs promote “While the law is free to morality among about sexual its defin- place all sorts of in conduct harmful values; accept it to ing forcing as mem- behavior, it to interfere is not free with engage in or approve bers those who promot than speech for no reason better group would cause the homosexual conduct ing approved message or discouraging a itself to to currently as it identifies cease one, enlightened disfavored however either difficulty concluding no exist. We have purpose may government.” strike the application of its nondiscrimina- 579, 2338; Hurley, 515 at 115 S.Ct. U.S. way in policies tion burdens CLS’s Dale, 661, 120 see also at S.Ct. U.S. Roberts, ability to its ideas. See express in 2446. What interest does SIU have 3244; 623, 104 S.Ct. see also 468 U.S. at forcing accept CLS to members whose ac

Dale, 2446; than tivities violate its creed other eradi Hurley, S.Ct. 2338 cating neutralizing particular or beliefs (“[W]hen contrary of a view dissemination contained that creed? SIU identi upon a speaker[,] to one’s own is forced point only apparent fied none. autonomy ... over speaker’s organization to an like applying FAIR, compromised.”); message cf. modify the con CLS is induce CLS (holding that law 126 S.Ct. at 1312 school’s penalty tent of its or suffer expression are not rights associational burdened derecognition. military law recruiters be requiring campus allowed access other re- the same scale, On other side military given cruiters are because recruit- exercising its First CLS’s interest “members ers do not become unquestionably Amendment freedoms is association”). school’s pro Amendment substantial. “The First expression, ‍‌​​​‌‌​‌​‌​​‌‌​‌​​‌‌‌​​​‌​​​​‌​‌‌‌​​​‌‌‌​‌‌​‌‌‌​‍popular it of the vari tects question final is this: Does Our not,” Dale, ety U.S. at or preventing discrimination SIU’s interest judicial “public disap outweigh inter against homosexuals organization’s ex proval of tenet of an disapproval homо expressing est justify the State’s effort Dale, 658-59, pression does not activity? sexual 530 U.S. at accept mem- compel justify In order to inter- S.Ct. 2446. 864 acceptance community

bers where such would dero- vital than in the of American ” schools,’ gate organization’s expressive 180, from the id. at (quoting S.Ct. 2338 661, message.” Tucker, Id. at 2446. S.Ct. Shelton v. 364 U.S. CLS has carried its burden of proving (1960)), 5 L.Ed.2d 231 the Court likelihood of success on its claim for viola- Healy held in that SDS’s associational right tion of its of expressive association. rights impermissibly had been infringed because the school refused confer stu objects SIU this is not a “forced organization dent status and its attendant inclusion” Hurley case like Dale or be- 181-84, benefits on Id. at SDS. 92 S.Ct. cause it is not forcing anything CLS to do Although 2338. Court all, at but is withdrawing its student university’s in maintaining interest order organization argues, status. SIU and the enforcing rules, campus reasonable held, district court consequences the Court drew a distinction between rules of derecognition insignificant are too directed at a student organization’s actions constitute a constitutional violation. The advocacy rules directed at its or phi Supreme rejected argument Court this in losophy; might provide the former permis Healy, a parallels case that in one all justification sible nonrecognition, but respects. material 188-94, the latter do not. Id. at 92 S.Ct. Healy expressive involved an associаtion claim by college attempted students who This legally indistinguishable case is form a Students for a Society Democratic Healy, principled and no factual dis- (“SDS”) chapter at Central Connecticut appears tinction present record that College. State college The refused to con- justify contrary would conclusion. CLS fer official status on deprived was of the same benefits as the the chapter, believing organiza- group Healy. Both were frozen tion’s philosophy university conflicted with out of channels of communication offered policy. 174-76, Healy, 408 at universities; by their both were denied 2338. As a nonrecognition, result of SDS university money private and access to was not allowed to campus meet on university facilities for meetings. SDS make meetings announcements about here, Healy, like CLS could turn to alter- through rallies university channels like native modes of communication and alter- newspapers and bulletin boards. Id. at meeting places, native Supreme but the 176, 92 S.Ct. appeals 2338. The court of Court held that group’s the student “possi- held the university had not violated SDS’s ability ble campus exist outside the com- right constitutional of association because munity does not ameliorate significantly the university had not forced SDS do imposed by” disabilities anything. nonrecogni- Id. 92 S.Ct. 2338. SDS tion. Id. at was still ablе S.Ct. 2338. to meet as a group, but off campus and without the attendant benefits The same is true here. may not do of recognition. indirectly what it is constitutionally prohib- Supreme doing directly. ited from Healy, Court pro- reversed. The Constitution, tections of together, S.Ct. 2338. Read the Court said, Dale, are not limited holdings to direct Court’s Hurley, interference with Healy provide First Amendment freedoms. Id. at substantial support for 183, 92 S.Ct. expressive 2338. The Constitution also association claim. CLS protects against indirect interference. Id. demonstrated a reasonable likelihood “ Recalling that vigilant protection ‘[t]he of of success on its claim for violation of its constitutional freedoms is nowhere more association. 2141, (1993); 124 L.Ed.2d 352 Wid S.Ct. Speech Free Vincent, 269-79, 263, mar v. 454 U.S. 102 violates government The (1981); 269, Hosty, 70 L.Ed.2d 440 S.Ct. First Amend Speech Clause Free government may 412 at 736-37. F.3d The a speaker a it excludes ment when a from a traditional speaker pub “exclude speaker is entitled forum the speech ‘only lic forum when the exclusion is neces Rosenberger, 515 U.S. at 829- enter. See sary compelling to serve a state interest Carter, 2510; narrowly v. 412 and the exclusion is drawn 30, Hosty 115 S.Ct. ” Ark. that interest.’ Educ. Tele achieve (7th Cir.2005). 731, SIU has 737 F.3d Forbes, 666, v. 523 U.S. vision Comm’n organi for student speech a forum created (1998) 677, 1633,140 118 S.Ct. L.Ed.2d 875 certain benefits has bestowed zations and Legal (quoting Cornelius v. NAACP Def. qualified enter on those who Fund., Inc., 788, 800,105 Educ. 473 U.S. & violated its alleges that SIU forum. CLS (1985)). 3439, 567 87 L.Ed.2d S.Ct. by ejecting it from that speech rights free “designated to a applies same standard compelling reason. forum without speech forum,” is created when the public which public government opens a nontraditional scrutiny applicable of The level Forbes, 523 public forum for discourse. type actions in of government’s this 677, 1633; at 118 DeBoer v. Vill. U.S. S.Ct. depending on the case differs speech free (7th Park, 558, 267 F.3d 565-66 Oak speaker which the forum from nature of .2001). Cir News Club v. has been excluded. Good public Finally, nonpublic forum— Sch., 98, 106, 121 533 U.S. Cent. Milford desig tradition or property that “is not (2001); 2093, L.Ed.2d 151 see 150 S.Ct. public communica nation a forum County, 433 v. Milwaukee also Anderson subject rigorous scrutiny to less tion”—is (7th Cir.2006). 975, The Su 979 F.3d open designated pub or than a traditional three different has identified preme Court Perry Educ. Ass’n v. Perry lic forum. purposes of First speech fora for types of Ass’n, 37, 46, 460 U.S. Local Educators’ tradi analysis. open In an or Amendment (1983); 948, 74 L.Ed.2d 794 Good 103 S.Ct. forum, on state restrictions public tional Club, 106, at 121 S.Ct. 2093. 533 U.S. News scrutiny. News get strict Good speech nonpublic in a forum restrictions Speech 106, 2093; Club, 121 at S.Ct. 533 U.S. of view not discriminate on the basis must light v. Ctr. Moriches Union Chapel Lamb’s “must ‘reasonable point ”2 Dist., 384, 391, by the forum.’ purpose served 508 U.S. 113 Free Sch. Paul, See, City e.g., St. ny R.A.V.v. con- test. nomenclature is not without 2. The forum 2538, 377, 427, Minn., speak “limited 120 Court decisions also U.S. 112 S.Ct. fusion. 505 fora; recently phrase (Stevens, (1992) concurring); public” most J. L.Ed.2d 305 “nonpublic” Fund., interchangeably with been used Legal v. & Educ. Cornelius NAACP Def. fora, subject 3439, both are to lower 796, which means Inc., 788, S.Ct. 87 473 U.S. 105 See, scrutiny. e.g., Good News Club v. level (1985) (noting appellate L.Ed.2d 567 Sch., 98, 106, U.S. 121 S.Ct. Cent. 533 ques- Milford whether forum in court did not decide (2001) 2093, (identifying 151 150 L.Ed.2d nonpublic public was a limited forum tion subject test public as to the same limited fora Park, forum); F.3d Oak 267 DeBoer Vill. of in, example, nonpublic fora described as Cir.2001). 558, (7th Union Free Chapel v. Ctr. Moriches Lamb's litigation. has infected this That confusion Dist., 113 S.Ct. Sch. 508 U.S. parties argument both described At oral (1993)). public But “limited 124 L.Ed.2d 352 at SIU as “limit forum used to describe a sub- forum” has also been forum,” they forum,” we think meant ed but “designated public category mean- array things. the diverse CLS noted ing subject the strict scruti- different that it would be Club, 106-07, stands, strong 533 U.S. at there is evidence that the Good News Cornelius, 473 at (quoting applied S.Ct. 2093 U.S. has not been in a viewpoint Forbes, 3439); at 105 S.Ct. U.S. way. According present neutral to the 1633; Rosenberger, evidence, record CLS is 2510; Chapel, Lamb’s that has group stripped recog- been 392-93, 113 S.Ct. 2141. that it nized status the basis discrimi- ground by on a prohibited nates SIU’s government Once the has set the bound policy. pre- Affirmative Action/EEO forum, may renege; aries of its it it recognized sented evidence that other stu- respect self-imposed own must its bound organizations dent discriminate their Rosenberger, 515 aries. membership requirements grounds pro- 2510; Hosty, 412 (noting F.3d at 737 by policy. hibited SIU’s The Muslim Stu- open that a forum is “declared when Association, ante, dents’ for example, limits speech [participants] may not ex be membership Similarly, to Muslims. mem- post” government censored ex when de welcome). speech bership is not in the Though Campus cides the Adventist Minis- recognized organization status is a tries is limited to those “professing the Faith, forum of the theoretical rather than the Day Seventh Adventist and all other physical public kind—a street corner or in studying students who are interested square physical is the kind—the same Holy the applying principles.” Bible and apply. Rosenberger, rules See 515 U.S. at Membership Young Women’s Coali- 830, 115 S.Ct. 2510. only, though regardless tion is for women race, color, creed, religion, of their ethnici- organization

Whether SIU’s student fo- orientation, ty, physical ability. sexual public, designated rum is a public, or non- There examples, are other but we need not public inquiry forum is an that require will cite them all. development, further factual and that is a properly task left for the district court. reason, For applied whatever SIU has assuming But stage even of the alone, its antidiscrimination to CLS litigation that SIU’s student though even other student groups discrim- forum nonpublic making is a forum— inate in their membership requirements on scrutiny lowest level of appliсable be-—we grounds that prohibited by policy. are argument. lieve CLS has the better of the SIU contends there is no evidence groups There can be little other doubt that SIU’s would continue to discrimi- Affirmative policy viewpoint is nate if nonrecognition, threatened with but Action/EEO face, neutral on its but argument as the record is a nonstarter. Af- groups organ that have designated place a or ‍‌​​​‌‌​‌​‌​​‌‌​‌​​‌‌‌​​​‌​​​​‌​‌‌‌​​​‌‌‌​‌‌​‌‌‌​‍means of communica that, ization status at SIU and forum[,] maintained like public speakers a tion as cannot be groups, pres those other CLS is entitled to compelling governmental excluded without a ence in that forum. CLS went on: ''[W]hat interest.”). SIU, hand, on the other focuses says public university the law is that a when public on the "limited forum” test articulated up sets group such forum and excludes a by viewpoint neutrality Good News Club: forum[,] eligible that is otherwise for that Accordingly, par reasonableness. while the compel it can do so with reference to a appeared agree argument ties at oral ling state interest.'1 Given the reference to probably dealing we pub are with a "limited scrutiny (compelling the strict test state inter forum,” lic we will not hold them to that est), probably thinking CLS was of "limited agreement they plainly arguing because were "designated public forum” as forum.” scrutiny for different levels of and the “fo Cornelius, See 473 U.S. at 105 S.Ct. 3439 terminology always rum” has not been clear. ("[W]hen government intentionally has forum which it is entitled speech SIU from policy, which firmative Action/EEO . other, organizations, way all student or the to remain. One applies insists as- nonrecognition; standing threat has violated its likely shown it point the whole that is suming applies, First Amendment freedoms. policy. simply court misread the The district light policy is reasonable Whether standards, necessarily and that is legal forum serves cannot purposes of discretion. Koon v. United abuse do because we on this record determined States, purposes those precisely what not know (1996); MacDonald v. 135 L.Ed.2d (we but that would be speculate, could (7th Dist., Chi. Park F.3d not reach this need inappropriate). We Cir.1997). district court did not ad- however, given our inquiry, aspect would be question dress the whether SIU demonstrated that CLS has conclusion preliminary issuance of a harmed on claim that SIU of success its likelihood injunction. appeal, the harm SIU On dis- viewpoint in a applying policy its is hardship associated with be- claims is the out criminatory singled has fashion. SIU recognize organi- a student ing required may derecognition. The record for CLS violating the universi- zation it believes is now every part right of it spartan, but But if ty’s policy. antidiscrimination SIU points to success CLS. in manner that policy applying is Balancing rights— of Harms First Amendment

B. violates CLS’s likely is CLS has demonstrated as —then also held that

The district court harm at all. claimed harm is no SIU’s irreparable harm as suffering not CLS was focusing on the derecognition, a result of reasons, foregoing we For the Reverse meetings still hold fact that CLS could and Remand district court’s decision could communicate with stu campus and prelimi- to enter a this case with directions university other than bul by dents means injunction against SIU. nary The district letin boards and listservs. being not that CLS was court believed WOOD, Judge, dissenting. Circuit simply anyone, but was forced to include have concluded that My colleagues if it the benefits of being told that desires erred when it refused district court status, it organization injunction requiring preliminary grant by antidiscrimination must abide University of Law Illinois School Southern already explained have policy. We (SIU) local recognize a in Carbondale to analysis; of First flaws in this violations Society Legal the Christian chapter of rights presumed to consti Amendment (CLS) organization. as an official student Elrod, 421 injuries, irreparable tute however, only possible, That conclusion is Joelner, 2673; at 378 F.3d asking wrong questions, by and.thus denying official Healy holds that prob- arriving wrong at the answers. is a to a student recognition of the by the state compounded lem is. of ex infringement of the significant acknowledges is record, majority which the Healy, association. pressive I would dissolve ante at 867. “spartan,” has shown a 92 S.Ct. 2338. CLS court injunction temporary on its ex likelihood of success reasonable appeal and allow SIU pending issued Healy, under association claim pressive policy while nondiscrimination enforce its Dale, has also demon Hurley. CLS explora- through a full proceeds case- claim of success on its strated a likelihood merits. it tion of the unconstitutionally excluded SIU end, Serve, If, eligibility funding in the the facts show certain apply School, nondiscrimination does through the Law use or that is organizations, SIU dis- SIU name. The record also includes the upon based its criminating against CLS following made statement CLS: viewpoint, evangelical Christian the dis- interprets its Statement Faith to certainly enjoin trict court should require that officers and ad- members policy. If on the other enforcing its beliefs, here to orthodox in- Christian claims, SIU, merely applying hand as it is cluding the prohibition Bible’s of sexual Affirmative Action/Equal Employment persons of conduct between the same (AA/EEO) Policy to an Opportunity “edu- A person engages sex. who homosex- opportunity” cation a neutral and even- viewpoint ual conduct or adheres to the religious handed manner to and nonreli- that homosexual conduct is not sinful alike, gious groups taking any and it is not permitted would not be to serve as a to accept actions “force” CLS mem- chapter officer or member. A per- comport bers with views that do not with may engaged son who have in homosex- Bible, interpretations then past ual conduct in the repented but has prevail. SIU is entitled to conduct, of that or who has homosexual outset, important At review engage inclinations but does not in or what is in this record and what is not. conduct, affirm homosexual would not be (established not) in With the facts prevented serving from as an officer or mind, I then turn to the standard of review member. Fi- ought applying. this court to be read, Fairly this statement reveals nally, important I discuss the differences prevent person openly CLS would who present Healy between the case and affirmed or engage his her to James, conduct, homosexual (1972) part as an intimate L.Ed.2d 266 that have —differences relationship person, with another dispositive way effect on the which the rights First Amendment serving CLS as- as an officer or member the serting intersect with SIU’s own constitu- Furthermore, organization. IV, Article tional rights obligations. 4.1, chapter Section of the CLS constitu- provides: tion I Equal Opportunity Equal Access. only The record contains a brief descrip- In the conduct of all aspects of its activi- CLS, organizations, tion of other student ties, Chapter shall not discriminate way аnd the that SIU interacts with them. age, color, on the basis of disability, We an organization know that there is race, origin, national sex or veteran sta- SIU; called chap- that it is a local tus. ter of an organization called the Christian Conspicuous by its absence from this list is Legal Society; registered it was a sexual orientation. The constitution at student at SIU’s Law School Section 4.2 also provides membership 25, 2005; until registered March and that “shall open be all students at the School student organization status carried with it agree who purposes with the mission and privileges space such as access to on Law affirm, ... sign, who [and] endeavor boards, School bulletin private meeting to live their in a lives manner consistent School, space within storage the Law with the of Faith.” Statement School, space within the Law access to the Finally, Law the record publications, School’s website and reveals that the Dean email School, Alexander, access on the Law School’s List- of the Law Peter C. from membership, example, it in violation of banned that was informed CLS provide “to policy of SIU-Carbondale heterosexual students who have had sex- opportu- and education employment equal marriage? ual relations outside Has it without re- qualified persons nities for all actually any gays admitted who choose sex, race, color, national religion, gard sexually not to active? a disabled disability, as origin, age, status has the How SIU-Carbondale AA/ era, a veteran of the Vietnam veteran or policy applied past? in the EEO been orientation, status.” or marital sexual When, ever, applied if been (This record as policy is referred organizations, opposed as em- Employment Action/Equal Affirmative University in classroom ployees majority Policy. While Opportunity situations? specifical- failing to state criticizes SIU 3. Does the evidence show that violated, Alexan- Dean ly policy what policy, which SIU-Carbondale AA/EEO by quoting clear der’s letter to CLS makes facially court neu- the district found was is the Affir- policy question it that the tral, applied neutrally? has been How Oppor- Action/Equal Employment mative investigations of violations of the policy in Policy. I address this tunity initiated? below.) Dean Alexander also more detail and lead- organizations membership 4. What are the said that “all federal or appropriate recog- must adhere to ership requirements for other concerning nondiscrimination state laws including organizations, nized student equal opportunity.” Association, the the Muslim Students’ Ministries, the Chi Campus Adventist posture of procedural Because of the Fellowship, Young Alрha Christian case, including the fact that SIU has evidence, Coalition, many Republicans, crit- Women’s yet submitted Indeed, Democrats, remain questions unexplored. Gay ical and the Lesbian and court filings this supplemental some of the Supporters? Does Law Students important how has received underscore constitu- organizations’ vet student may For exam- these unresolved facts be. membership policies tions to see if their Religious ple, the Center Law compliant policy? with the AA/EEO CLS, Freedom, argues in represents which organiza- 5. Have other student Rule of pursuant to Federal a letter filed so, recognition? If tions been denied 28(j) Procedure that CLS does Appellate not, If then what circumstances? under “on the basis ‘sexual not discriminate justification does SIU-Carbondale what ” when it insists that its mem- orientation’ starting have for with CLS? “unrepentant sexual con- bers refrain is the If it turns out marriage,” of traditional duct outside (a) espouses views organization that both homosexual or whether that conduct be inconsistent with that are AA/EEO Argument by counsel a heterosexual. (b) recognition has been denied policy brief, letter, in a is a or even supplemental then there organization, as a student indeed for facts on the poor substitute unlawful discrimi be reason to fear would perma- the time comes for ground. When Rosenbеrger v. Rector & Visitors nation. See relief, following answers to the nent solid 819, 115 of Va., 515 S.Ct. U.S. others, be essential: questions, among will Univ. (1995). If, 2510, on the L.Ed.2d 700 applied 1.How has CLS’s been hand, organizations have the other other failed to live past in the to students who and trusted to accommodated their rules conduct Biblically-based code of up to otherwise)? to attract the desired (whether preference sexually or Has individual 2948, § pp. have a different we would participants, Practice And Procedure (2d ed.1995)). justify to evaluate To virtually impossible 129-30 case. It is (1) relief, respect they action with the Law School’s movants must show that it conforms knowing without whether have reasonable likelihood of success organiza- (2) of similar merits; or not to the treatment adequate remedy on the no allegations (3) has made extensive exists; tions. CLS they irrepa- at law will suffer in its organizations these other mov- about which, injunctive harm re- rable absent us reason to gives but it no ing papers, lief, outweighs harm the irreparable knowledge of the that it has direct think injunction if respondent will suffer organizations. of those policies internal (4) injunction granted; and will not smattering also included CLS has harm the interest. Joelner groups, no from other but constitutions Park, 613, Washington Vill. 378 F.3d testified about groups one from those (7th Cir.2004) (citing Erickson v. documents, nor do accuracy оf those Inc., Theatre, 1061, Trinity 13 F.3d any- us anything have that would tell we (7th Cir.1994)). A district 1607[sic] interpretation applica- thing about the preliminary injunction court’s denial of a tion of those constitutions. is reviewed for abuse discretion. Union, v. Am. Civil Liberties Ashcroft II question remains whether CLS is The (2004) (citations omitted) L.Ed.2d 690 [ ]. injunction preliminary to a restor- entitled 430 F.3d at 437. ing as a student or- its status majority acknowledges this well-es- in- ganization, pending complete a more but, briefly, cit- tablished law ante at In of these issues. order to vestigation ing Hurley v. Gay, Irish-American Lesbi- we must consider question, answer that Boston, an and Bisexual Group the district court was both the standard 132 L.Ed.2d 487 evaluating re- obliged to follow (1995), quickly it moves to the observation injunction quest preliminary for a and the reviewing court must make an applies that this court standard of review independent review of the record in cases appeal. v. Illinois De- Goodman involving allegations of harm to interests partment Financial Professional protected by the First Amendment. As (7th Cir.2005), Regulation, 430 F.3d 432 clear, however, Hurley makes indepen- chiropractor brought case in which a dent review of which speak- the Court was challenge against First Amendment ing has to do with the ascertainment of the prohibited telemarketing state rule that facts, underlying not the broader standard services, professional medical this court at review. See id. 115 S.Ct. 2338. say the following had the to about two example, reviewing For the court not does relevant standards: give the normal deference to matters of observed, As the Court has credibility, witness nor does the usual injunction preliminary is an ex- “[A] “clearly erroneous” standard of review traordinary remedy, and drastic one cabin the examination of the facts. Id. that granted should not be unless the Thus, Hurley, where parties disa- movant, by showing, a clear carries the greed parade whether had the element of of persuasion.” burden Mazurek v. expression necessary implicate the First Armstrong, 520 S.Ct. (1997) Amendment, the Court decided this issue (quoting 138 L.Ed.2d 162 11A for itself. This does not mean that Arthur R. Wright, Charles ‍‌​​​‌‌​‌​‌​​‌‌​‌​​‌‌‌​​​‌​​​​‌​‌‌‌​​​‌‌‌​‌‌​‌‌‌​‍Alan Mary Kay Court abandoned the abuse discretion Miller, Kane, & Federal only strongly courts in intervene if that appellate for convinced of review standard rights. involving judged wrong. First Amendment not strongly cases he We are that, convinced.”). Later, doubt about If there was in United States v. Ameri- (7th it to rest in put Williams, Cir.1996), Court 81 F.3d 1434 an- Ashcroft Union, which involved can Civil Liberties judge responsible other district court for a challenge Amendment to a statute a First group different of defendants concluded exposure minors from designed protect necessary. that no new trial was Once sexually explicit materials on the inter- affirmed, again, this court with the follow- 659-60, 124 S.Ct. 2783. net. 542 U.S. ing comments: Reviewing a decision the lower courts point Another that is difficult for non- enjoin probably because it statute lawyers to understand or accept is Amendment, the Court violated the First question grant because the whether to wrote: new trial is committed to the discretion Court, courts, appellate other This like judge, of the district as the defendants always applied the abuse of discre- for, concede, rightly possible it is two preliminary on review of a tion standard judges, confronted with the identical juris- injunction. grant appellate record, to opposite come to conclusions § 1252 does [28 U.S.C.] diction under appellate court affirm depart license to give not Court possibility implicit both. That is in the appellate standards of from established concept discretionary judgment. of a If underlying If the constitutional review. judge way could he decide one close, therefore, question is we should lawfully not would be able to exercise injunction uphold the and remand discretion; following either he would be mode Applying trial on the merits. rule, or the circumstances would be so with the inquiry, agree we Court deciding way one-sided other did not Appeals that the District Court be an abuse of discretion. If the would pre- in entering abuse its discretion judge way can decide either because he liminary injunction. is within the zone which he has dis- (internal 664-65, quo- Id. against cretion—can decide either for or omitted). tations citations grant implies of a trial —this new It to note that the existence important judges that two faced with the identical question logically implies of a close opposite record could come to conclu- not abuse its discre- the district court does yet both be affirmed. sions one result over anoth- tion when chooses (now Judge we affirmed Chief When in which pair er. A of cases this court Aspen’s grant of a new trial to Judge) alarming pattern prosecutorial mis- case, Boyd in the we the defendants emerged high- conduct in criminal trials of way went out of ur to make clear drug level dealers affiliated with the noto- we affirming we were because point El Rukn gang rious illustrates this necessarily right but thought he was Boyd, In 55 F.3d well. United States reasonable, he thought we was because (7th Cir.1995), judge the district court that he had not “abused his discretion.” that of the had decided some defendants no of discretion Because we found abuse trial; the applying were entitled to a new having granted in his a new trial we had of standard to that deci- abuse discretion would no occasion to decide whether we sion, at 246 this court affirmed. See id. him had also have affirmed he denied (“The responsi- The judgmental. issue is whether, contrary, the it new trial or on bility rеquisite judg- for the exercise of the where are to was one of those one-sided cases judge’s ment is the district and we first, may the fact the merits: that not have ruling possible. is So one second, very any on a record simi- that Judge policy; that Mills violated SIU identical, lar, ... not to that though may infringed impermissibly on have Aspen opposite made the Judge association; before right of and necessarily require, does not as ruling third, free speech that SIU violated CLS’s maintaining consistency with matter rights by ejecting speech it from forum Boyd, in that we reverse our decision in which it had a to remain. Ante at Judge Mills. stands, 859-60. The record as now (internal omitted). interpreted independently, even fails to citations Id. 1437-38 mind, Supreme in the Bearing support this Court’s of those assertions. pre- to affirm the issuance of the decision that action is applies liminary injunction in v. ACLU in Ashcroft policy, promises the which AA/EEO way suggests that the Court would have no “provide equal employment SIU will and had the district court come to the reversed opportunities qualified for all education opposite ques- conclusion. The closer the persons regard without to ... sexual or- tion, room is for the the more there exer- Recognized organiza- ientation.” thoughtful cise of discretion. play integral tions an role in the education- universities, process аl offered as the Ill Court in Board of facts, are, they the such With as and Regents University Sys- Wisconsin mind, all that these standards remains Southworth, 217, 222-23, tem v. tois consider whether the district court’s (2000) 146 L.Ed.2d S.Ct. deny injunction decision to the that CLS view, (noting University’s the the “[i]n requested was abuse discretion. The activity expe- fees ‘enhance the educational why majority principal reasons be- by ‘promot[ing] rience’ of its students ex- question lieves that the answer to this activities,’ ‘stimulating tracurricular advo- yes irreparable are its conclusions that view,’ cacy points and debate on diverse presumed, harm to CLS must be enabling ‘participation] in political activi- money damages inadequate, will be ty,’ ‘promoting] participation] injunction automatically that an would be campus activity,’ pro- administrative interest. Ante at 859.1 do not viding ‘opportunities to develop social propositions take issue with those in the skills,’ University’s all consistent with the Nevertheless, litigants abstract. must mission”). The Court there held that points they show more than these before University may determine that its “[t]he injunction. preliminary are entitled to a mission is well served if students have the Specifically, they must demonstrate two engage dynamic means to discussions of (1) more elements: likelihood of success scientific, social, philosophical, religious, (2) merits, irreparable harm subjеcts political in their extracurricu- injunction proponent of the will campus lar life outside the hall.” lecture outweighs suffer without it irreparable Rosenberger Id. at 120 S.Ct. 1346. injunction harm opponent will part also the extracurricular involved view, my suffer with it. CLS has not university experience. 515 U.S. at early satisfied these stage. burdens (noting purpose “the I points take the two in turn. support [Student Activities is to Fund] A. Likelihood of Success on the Merits range broad of extracurricular student that majority The offers three reasons for its activities ‘are related to the education- ”). likely conclusion that purpose University’ CLS is to succeed on al of the was

873 required step; military, it to take this for ground when on well-trodden therefore so, policy ap- example, yet has not done and the that its notified CLS AA/EEO sought that organizations to student decision in v. plied Supreme Court’s Rumsfeld recog- such recognition because official Forum Academic Institutional — provide educational groups student Inc., U.S.-, 1297, nized Rights, 126 S.Ct. purpose that SIU’s Given opportunities. (2006) (FAIR), 164 L.Ed.2d 156 indicates organizations is to recognizing in too.) policy permissible that its is for its opportunities educational provide Next, majority worries that SIU’s students, any recognized that it follows law right expres- policy infringes on CLS’s the rules for the organization must follow But, sive association. unlike the rule If such opportunities.” school’s “education Dale, Boy Scouts America v. issue (here CLS) discriminates 640, 2446, 120 147 L.Ed.2d 530 U.S. S.Ct. it by policy, is basis forbidden (2000), way in no tried to 554 SIU has measures. This is subject to corrective compel to admit members or to elect view, tip the balance on enough, my to that offend its It has precepts. officers the merits” to “likelihood of success on only that must content itself with said side. to non- support given the benefits and con- majority attempts to avoid this recognized organizations, rather drawing a between clusion distinction receiving perks than also the additional orien- on the basis of sexual discrimination recognized status. The go along with and discrimination on basis tation often a line Supreme Court has drawn contains abso- sexual conduct. The record compel conduct and between rules however, evidence, sup- either lutely no merely benefits. rules withhold notion that CLS porting refuting or abortion, example, Planned the area of leader- actively membership bans Pennsylvania Parenthood Southeastern students who ship positions heterosexual 2791, Casey, 505 112 S.Ct. v. U.S. sexually active outside the bound- may be (1992) reaf- (plurality), 120 L.Ed.2d 674 Likewise, the record is marriage. aries Wade, holding” the “central of Roe v. firms indicating thoroughly devoid of evidence 113, 705, L.Ed.2d 147 410 93 S.Ct. 35 U.S. or lesbian who has chosen not to gay that a (1973), banning forbidding thе states from to sexually permitted active has been be 1977, early as outright, but as abortion Furthermore, a member or leader of CLS. Roe, in Maher v. Court recognition light Court’s 464, 2376, L.Ed.2d 484 S.Ct. Texas, 558, 123 Lawrence (1977), was under no obli- that the State (2003), 156 L.Ed.2d S.Ct. sup- provide affirmative financial gation to homosexual, adult, “are entitled individuals indigent sought who abor- port to women lives,” that the private for their respect it reaffirmed the It did so even as tions. their existence or cannot demean “State right to choose fundamental woman’s destiny by making pri- their control their pregnan- her or not to terminate whether crime,” conduct a vate sexual (“There is cy. See id. at “[tjheir right liberty under the Due in- direct state a basic difference between the full gives Process Clause them activity and protected with a terference interven- engage in their conduct without ac- of an alternative encouragement state government,” id. at tion of the legislative policy.”). tivity consonant with unlikely it that a State seems here: SIU has principle applies The same forms of discrimi- that wishes to ban both adopt whatever entirely free left CLS making this nation is forbidden from wants; (This simply it declined say policies that the choice. is not to State (financial email, websites, give MySpace®. certain additional assistance and hosts like in-kind) organizations to thаt violate Again, although might not facili- SIU have policy. Nothing its nondiscrimination SIU tated efforts to aup CLS’s set website and infringes on CLS’s freedom of done potentially to send emails to other inter- association, theory and so this students, nothing prohibit ested it did support finding likely cannot that CLS is taking advantage CLS from of electronic on the merits. succeed (If access methods. CLS had its own web- site, any otherwise, student at the school with access finding majority In relies is, Google all of them —could heavily on the Court’s decision in easi- —that James, it.) Healy ly short, Healy, have found offers 2338, 33 L.Ed.2d 266. But a look at closer an example campus; of real exclusion from Healy why approach shows instead presents counterexample our case permissible. Healy, to CLS is certain neutrality organizations toward that do not students wanted to establish a chapter recognition, have formal but that are oth- Society the Students for a Democratic operate erwise welcome to on their own. (SDS), early which the late 1960s and Finally, majority accepts ar- self-styled 1970s was a “radical” campus gument University violated its group. Central Connecticut College State speech rights by ejecting free it from a anywhere decided that it did not want SDS nonpublic forum compelling without a in- near it. It thus not refused to confer majority terest. The concedes that “recognized” aspiring status on the SDS enough record does not contain informa- chapter, it also refused to allow the SDS tion to make a definitive decision on the group to campus, meet on or to make suggests nature the forum. It that the meetings announcements about and rallies record contains evidence that SIU has ap- through college newspapers and bulletin plied policy its in a discriminato- AA/EEO satisfied, boards. Still it took the rath- ry way, ante at but the bare texts of a extraordinary er step refusing to let the constitutions, alleged few other unverified (ie. together) SDS students meet sit in the context, and without are too weak a reed campus shop! coffee Id. at rely. single person which to Not a nothing SIU’s actions were like this. Association, from the Muslim Students’ permitted CLS to have free access to Ministries, Campus the Adventist or the the law school’s classrooms for its meet- testified, Young Women’s Coalition or even ings; campus never banned CLS from affidavit, provided an and so we no have shops coffee or other Although facilities. way of knowing whether those organiza- would pay need to a fee to use the actively discriminating tions were on pro- auditorium, its practical activities as a mat- evidence, view, hibited basis. in my Such rule, ter were unaffectеd as CLS is critical to the outcome of I this case. tiny group was a of six to 12 students. agree majority with the if SIU has says nothing The record about avenues singled somehow out CLS for adverse such as fee waivers or charges admission treatment, tolerating discriminatory while that might have been available if CLS had practices in violation of its for other sponsor large wanted to program gen- similarly organizations, posi- situated eral community. interest the SIU tion is far more tenuous. The record at Moreover, importance that physical however, point, gives no us reason to campus bulletin today boards have is noth- think that University like ing behaving the situation in 1972. uni- Most manner, colleges, versities and such a foolish I am college- unwilling most students, aged communicate through indulge presumption body that a ability diversity.. attain such As the Illinois is the State of legally part of that is constitu- noted in v. Bol- and state Court Grutter violating the federal 306, 328-29, 123 S.Ct. linger, tions. (2003) (internal ci- 156 L.Ed.2d 304 of Harms Balancing B. omitted): tations balancing relates to point The last judgment educational The Law School’s detriments between whatever of harms diversity to its that such is essential recognition if it is denied will suffer educational mission is one to which we this case and the the outcome of pending The Law School’s assessment defer. if it forced suffer is injury that SIU will will, fact, diversity yield edu- undoubtedly has recоgnize CLS. CLS is cational benefits substantiated.... free- in its associational strong a interest scrutiny of the interest asserted Our noted, dom, but, already noth- as I have the Law is no less strict School directly doing impedes is ing that SIU complex account educational taking into freedom, effects of and the indirect judgments primarily in an area lies mild. That alone dis- policies are university. expertise within the Dale and Hea- this case from tinguishes our holding today keeping is with Our difference be- ly. important Another giving degree tradition of a deference from the our case and Dale stems tween decisions, university’s to a academic an affilia- trying is to force fact that CLS constitutionally prescribed limits. within a institution. itself and state tion between that, given the long We have a pri- prerogative Dale was about education important purpose for mem- institution to set standards vate Here, of Illi- speech leaders. the State expansive bers and and the freedoms universities, nois, has a through the univer- thought associated with indeed, in countervailing strong environment, a occupy universities sity interest — instances, constitution- compelling a many in our constitutional tradi- special niche to all giving equal treatment duty al announcing principle of stu- tion. —in to forbid citizens. If CLS wanted of its diversity compelling body dent as African-Americans, or mеmbership to all interest, Justice Powell invoked state couples, per- or to to mixed-race wedded di- recognizing a constitutional our cases surely SIU heritage, of Arabic sons mension, in the First Amend- grounded say at a minimum to would be entitled ment, autonomy: “The of educational would have that such an university to make its own of a freedom support— state sustain itself without to education includes judgments as membership even if it could root such body.” ... Our of its student selection Furthermore, policy religious in a text. has conclusion that the Law School impact of CLS’s mem- while the direct interest in a diverse student compelling might be to exclude certain bership policy that at- by our view body is informed indi- group, that student people at the body is taining á diverse recognition of a stu- impact rect of CLS’s institu- proper Law School’s heart of the is maintaining policy such a group dent mission, on “good and that faith” tional not, SIU, intentionally may be university “presumed” is part of a tolerating such discrimination. seen as contrary.” showing “a absent compelling that universities have Given Thus, some- if even SIU’s AA/EEO bod- obtaining diverse student interest Amendment upon a First infringes how ies, university to include ex- requiring a members, infringe- or its right of CLS might undermine their clusionary groups justified if it it may ment furtherance success the merits and because interest, or, compelling of a state at the no fundamental to the benefits SIU least, against the harm must be balanced long believes should be withheld from as being accept forced to into its SIU comply as it does not with the affirmative expressive group that under- association I policy, action would find that the district message mines its of nondiscrimination court did not abuse its discretion ‍‌​​​‌‌​‌​‌​​‌‌​‌​​‌‌‌​​​‌​​​​‌​‌‌‌​​​‌‌‌​‌‌​‌‌‌​‍when diversity. away ability and To take grant preliminary injunc- refused policy may to enforce its nondiscrimination I respectfully tion. therefore dissent. university undermine freedom of a “[t]he judgments to make its own as to edu-

cation.” undermining point,

Far from this FAIR, recent decision in Court’s

— U.S.-, 164 L.Ed.2d and underscores interest speech,

its Law School their own America, UNITED STATES of FAIR, rights. their own associational Plaintiff-Appellee, Cross- sharp the Court drew a distinction be- Appellant, outsiders, speech including tween the military recruiters whose toward gays and lesbians conflicted with that of HEWLETT, Auzio Defendant- schools, speech the law mem- Appellant, Cross-Appellee, community: bers of the But part recruiters are not of the law are, definition, school. Recruiters campus Gary, Defendant-Appellant.

outsiders who come onto for the Alfred purpose trying limited to hire stu- 05-2532, 05-2571, No. 05-2853. dents —not to become members of the school’s association. This United States of Appeals, Court distinction is critical. Unlike the Seventh Circuit. Dale, accommodations law the Solo- Argued June 2006. mon Amendment does not force a law school to accept members it does not July Decided desire. (internal quotations

126 S.Ct. at 1312 omitted). Here, trying

citations exactly

do trying that: it is to force SIU’s (that is, accept

Law School to a “member”

a recognized organization)

SIU does not desire. The point whole litigation is to transform CLS from

outsider, military like the recruiters

FAIR, into an insider. view,

In my the district court was enti-

tled to weighty conclude this is a

interest on University. the side of the Be-

cause CLS has failed to show a likelihood

Case Details

Case Name: Christian Legal v. Walker, James E.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 10, 2006

Citation: 453 F.3d 853

Docket Number: 05-3239

Court Abbreviation: 7th Cir.