Gay Student Services v. Texas A&M University

U.S. Court of Appeals, Fifth Circuit

737 F.2d 1317

August 3, 1984

JOHN R. BROWN, Circuit Judge:

Today we address the issue whether a state supported university violates the First Amendment rights of this gay student organization and three of its members by refusing to afford it official recognition. The District Court found that the University's refusal to recognize the group was not based on the content of the group's ideas about homosexuality. Instead, the trial court found that the group had been denied recognition due to the University's long standing policy of refusing to recognize fraternal organizations whose principal purpose is to hold social gatherings to encourage friendship and personal affinity. Finally, the Court held that the University had not created a forum open to fraternal or social groups. Thus, on appeal, the University contends that it never created a generally open forum for First Amendment expression. For these reasons, the District Court concluded and the University argues that there was no constitutional deprivation. We think those findings and conclusions are clearly erroneous and reverse.

Facts and Procedural History

In April of 1976, a group of students on the Texas A & M University (TAMU) campus met with Dr. John Koldus, the University's Vice President for Student Affairs, to discuss with him the possibility of using University facilities to conduct the business of a group they had formed, Gay Student Services (GSS). The students informed Koldus that they did not at that time seek official recognition, but merely wished to post notices on school bulletin boards, meet on campus, and have access to the student newspaper and radio. Their reasons for not seeking official recognition included their wish to maintain the anonymity of some of their members as well as their understanding that the group's existence might pose an "uncomfortable" problem in the conservative TAMU community.

Koldus advised the students that no form of limited recognition was available and referred them to Dr. Carolyn Adair, Director of Student Affairs, to receive information regarding the requirements for official recognition. Dr. Adair advised the students to apply for recognition as a service group rather than a political or social group because there would be fewer problems. Accordingly, the goals and purposes reflected on GSS's application were service-related. The application, dated April 5, 1976, stated the following goals and purposes:

1) To provide a referral service for students desiring professional counseling including psychological, religious, medical, and legal fields.

2) To provide to the TAMU community information concerning the structures and realities of gay life.

3) To provide speakers to classes and organizations who wish to know more about gay lifestyles.

4) To provide a forum for the interchange of ideas and constructive solutions to gay people's problems.

Dr. Koldus directed Dr. Adair to forward GSS's application directly to him rather than to the Student Organization Board, which is ordinarily the first step in attaining recognition. Koldus, who is responsible for the final decision regarding recognition, stated that this was his usual procedure when dealing with applications presenting special problems. Sherri Skinner, one of the group's founding members, testified that Koldus had informed the students at the initial meeting that the University would deny their application.

On May 4, 1976, the student representatives of GSS again met with Koldus, who told them that he had written a response to their application. Koldus stated that University officials had asked him to delay release of the response until Jack Williams, President of the University, and the University legal staff had had an opportunity to study the request. A memorandum dated May 28, 1976 from Williams to Koldus indicated that Koldus had provided information regarding other Texas universities' treatment of similar situations. Furthermore, Williams' memo stated that TAMU would not recognize GSS "until and unless we are ordered by higher authority to do so." The students met with Koldus in June and September of 1976, again requesting action on their application. Finally, Dr. Koldus issued a letter denying recognition on November 29, 1976.

Dr. Koldus' denial was premised on two points. First, Koldus asserted that because homosexual conduct was illegal in Texas at that time, it would be inappropriate for TAMU officially to support an organization likely to "incite, promote and result" in homosexual activity. Second, Koldus stated that the TAMU staff and faculty, not TAMU student organizations, were responsible for providing referral services, educational information, and speakers to students and the larger public. Thus, Koldus concluded that the stated purposes and goals of TAMU were not "consistent with the philosophy and goals" of TAMU. Nowhere in the letter did Koldus assert that denial of recognition was premised on the fraternal nature of GSS.

This lawsuit, seeking declaratory, injunctive and compensatory relief, was filed in February of 1977. In November of 1977, the District Court granted TAMU's motion to dismiss without stating its reasons for doing so, and GSS appealed. We vacated and remanded, finding that none of the asserted bases for dismissal were proper. The District Court held a bench trial in November of 1981. The evidence presented at trial consisted almost solely of medical testimony from specialists in human sexuality regarding the effect the presence of a homosexual student group might have on a university campus. The defense in particular centered on statistics and opinions documenting increased crime rates and severe emotional problems found within the homosexual community. The defense presented no testimony at trial regarding whether GSS functioned as a purely social organization.

On May 19, 1982, the District Court entered a final judgment for TAMU, along with findings of fact and conclusions of law. On appeal, GSS asserts that these findings and conclusions were erroneous and require reversal. We agree, for the reasons that follow.

The Nature of GSS

In its findings of fact, the District Court found that TAMU "did not and has not to the time of trial in this case, recognized fraternal organizations, i.e., student groups whose principal if not sole purpose is to hold social gatherings to encourage friendships and personal affinity." The record shows that in October 1977, Dr. Koldus denied recognition to Sigma Phi Epsilon, a national social fraternity, by stating the following policy:

For over one hundred years, Texas A & M has chosen not to include the national social fraternity and sorority system as an official part of its educational program. The University has supported the premise that its social character was developed in the concept of togetherness in that all students were Aggies and that a social caste system would detract from this most important concept which welded together the students that attended Texas A & M.

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As an administrator, it is my responsibility to attempt to perpetuate these traditions which have added not only to the character of the institution but to its strength. It is upon this premise that I deny official university recognition of Sigma Phi Epsilon.

At the heart of the findings and conclusions of the District Court was its decision that GSS was merely a "fraternal or social" group "whose message is mere friendship and personal affinity." This led the Court to conclude that GSS was not denied recognition "based upon the content of [its] ideas about homosexuality, since the group is not trying to convey any message about homosexuality," but rather because GSS was a "fraternal" organization subject to TAMU's traditional ban. We think this factual finding was clearly erroneous, for several reasons.

Such a finding is utterly at odds with the asserted purposes of GSS, which sought recognition to provide services and information regarding gay issues to gay persons and to the general public. Moreover, Dr. Koldus' asserted reasons for denying recognition were clearly based on his perception that the organization would attempt to convey ideas about homosexuality. Nowhere in his letter of November 29 does Koldus state that the University's refusal to recognize GSS was based on anything other than reasons tied to the homosexual nature of the group. Further evidence of TAMU's opposition to recognizing a gay student group is found in a resolution passed by the TAMU Board of Regents following the filing of this lawsuit in 1977. The minutes of the Board's meeting of March 22, 1977 state that the following "policy position" was approved:

So-called "gay" activities run diabolically [sic --diametrically?] counter to the traditions and standards of Texas A & M University, and the Board of Regents is determined to defend the suit filed against it by three students seeking "gay" recognition and, if necessary, to proceed in every legal way to prohibit any group with such goals from organizing or operating on this or any other campus for which this Board is responsible.

Moreover, TAMU presented no evidence at trial regarding the "fraternal" nature of GSS. Such a theory for denying recognition was never advanced in the case until TAMU filed its post-trial brief. Indeed, the sole evidence alleged to support the theory was advanced by GSS itself, in its attempt to show that GSS was a "normal" student group rather than a hotbed of deviant homosexuals anxious to influence the morals of impressionable TAMU students at on-campus meetings. TAMU relies, for example, on the testimony of Dr. Kenneth Nyberg, who agreed to become GSS' faculty advisor and attended some of its early meetings. Dr. Nyberg stated:

Theirs was a quintessential typical student group.... What you are talking about are students so their interests are those of students.... How do you, you know, how do you get registered? What person to take for a class, what person not to take for a class. What did you do last week? It was mostly concerning ... student issues.

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They reflected most of the same goals and aspirations and concerns almost all my students did. They subsequently looked into most of the same issues. The singular exception was, of course, the homosexual aspect.

It later became clear that GSS elicited such testimony from Dr. Nyberg in order to contravene a later opinion by defense witness Dr. Cameron, who opined that in light of statistical evidence regarding homosexual behavior, "it would be a shock really, if there were not homosexual acts engaged in at or immediately after" a meeting of a homosexual student organization.

Apparently relying upon the testimony of Dr. Sherri Skinner, the District Court also found that GSS was a fraternal group that was "not trying to convey any message about homosexuality" because it was "not organized for political advocacy" and had "no official position regarding repeal of the Texas consensual sodomy statute, which makes homosexual conduct a misdemeanor." Dr. Skinner's testimony, like that of Dr. Nyberg, was elicited by GSS for the express purpose of showing that GSS was a typical student service group deserving recognition rather than a substitute for a gay singles bar. Moreover, Dr. Skinner emphasized that any political or social goals GSS may have had were intentionally eliminated from the application for recognition because Dr. Adair had advised the students to seek recognition as a service- type group. What Dr. Skinner actually said, in the context of emphasizing the service-related purposes of GSS, was that while the individual members of GSS would probably support repeal of the anti-homosexuality laws, "the organization itself has been very careful to keep clear of political action or activism, per se." In light of the fact that TAMU recognizes more service-related student organizations than it does political ones, we simply cannot agree that GSS's failure to organize as a political group renders it a social or fraternal group subject to the TAMU ban.

Finally, we point out that recognition was denied before GSS ever had the opportunity to function as the service-type group it sought to become. The Court's determination regarding the nature of the group was based on how it functioned as an off campus group that had been denied the benefits and privileges of official recognition. The minutes of GSS's meetings reveal that much of the group's meeting time was consumed by discussion of the pending lawsuit. We think evidence concerning how GSS functioned as an off campus group is irrelevant to the determination whether GSS, as it sought to exist, was entitled to official recognition.

For all the foregoing reasons, we conclude that the District Court's factual findings with regard to the nature of GSS were clearly erroneous. We think it clear from the facts that TAMU refused officially to recognize GSS based upon the homosexual content of the group's ideas--which it sought to convey through implementing its stated goals and purposes.

Background: The First Amendment

At least three times in the recent past, this Court has seen fit to make "major expansions in the First Amendment rights of students." University of Southern Mississippi Chapter of the Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 F.2d 564, 565 (5th Cir.1971). In Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), we held that the due process rights of six black students were violated by their expulsion without a hearing from a state supported university following their participation in a Montgomery lunch counter sit-in. That decision has since been interpreted to mean that no longer is "attendance at a state university ... a privilege granted by the state ... subject to whatever conditions the state [seeks] to impose." University of Southern Mississippi, supra.

Next, in Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966), we paved the way for the Supreme Court's landmark decision in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), when we held that students' rights to freedom of expression could not be abridged absent material and substantial interference with discipline and order in the school. Burnside, like Tinker, was a "symbolic speech" case, where students were suspended from school for wearing "freedom" buttons. The Supreme Court cited Burnside when it held that:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in of the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained. Tinker, supra.

Finally, despite Judge Wisdom's statement that the decision "require[d] us to break no new ground," in University of Southern Mississippi itself we foreshadowed the Supreme Court's reversal of the Second Circuit's decision in Healy v. James, 408 U.S. 169 (1972). In University of Southern Mississippi, we held that the University's denial of official recognition to a chapter of the Mississippi Civil Liberties Union violated the First Amendment. The District Court had found that the "litigious orientation" of the MCLU might result in frivolous, vexatious and harassing lawsuits likely to impede the legitimate function of the University. We disagreed, after stating the following standards:

Student rights of free expression may be prohibited only if they 'materially and substantially [interfere] with the requirements of appropriate discipline in the operation of the school.' ... When the restriction upon student expression takes the form of an attempt to predict in advance the content and consequences of that expression, it is tantamount to a prior restraint and carries a heavy presumption against its constitutionality. University of Southern Mississippi, supra, quoting Tinker, supra.

We distinguished the Second Circuit's decision in Healy on its facts, while pointing out that we in no way implied our approval of that decision.

These three decisions required this Court to extend its own precedent as well as that of the Supreme Court to encompass the then-timely First Amendment problems of days gone by. Our earlier decisions, and certainly their Supreme Court counterparts, remain such an effective weapon against the infringement of fundamental rights that our task today is small in comparison. Moreover, we need not take the extra step of extending those precedents to today's problem by ourselves, for three other Circuit Courts and at least two federal District Courts have marked our way. In treading the First Amendment path, we are ever-mindful of the words of Mr. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 640-42 (1943):

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men.... As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.... The ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, ... down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

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... the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.

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... [f]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Official Recognition and First Amendment Freedoms

The District Court held that the First Amendment right of freedom of association "does not protect mere friendship or personal affinity but rather protects the right to join with others in the advocacy of beliefs or the exercise of other rights protected by the First Amendment." Because it found that GSS's message was "mere friendship and a sharing of concerns about classes and professors," the Court concluded that appellants' right to freedom of association under the First Amendment was not infringed. This fact finding precluded it from reaching any other First Amendment issues, so the Judge thought. We have already determined that the Court erred in finding that TAMU's reasons for the denying recognition to GSS were not based on the content of its message. Thus, we need only determine whether such a denial violated appellants' rights under the First Amendment.

In Healy v. James, 408 U.S. 169 (1972), the Supreme Court was faced with a situation nearly identical to that before us today. In Healy, a state supported college refused to recognize a group of students who wished to organize a local chapter of Students for a Democratic Society (SDS) during the late 60s, when SDS groups on some campuses had been a "catalytic force" in "widespread civil disobedience" on college campuses. The benefits of recognition in Healy were nearly identical to the benefits of which GSS was deprived, as was at least one of the asserted reasons for the denial: "the organization's philosophy was antithetical to the school's policies." The students sued, basing their claims on the denial of First Amendment rights of expression and association.

The Court began its analysis by pointing out that while a university certainly has the right to " 'prescribe and control conduct'" on its campus, the "'vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools'" (citing Tinker v. Des Moines Independent School District, 393 U.S. 503, 507 (1969); Shelton v. Tucker, 364 U.S. 479, 487 (1960)). Perceiving college classrooms and their "surrounding environs as a 'marketplace of ideas,'" the Court reaffirmed "this Nation's dedication to safeguarding academic freedom." Healy, supra, quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), Justice Harlan for a unanimous Court articulated the basis for recognizing the freedom of association that has since become firmly embodied in our First Amendment jurisprudence:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.... It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.... Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.

Thus, as the Healy Court held, freedom of association is "implicit" in the specified First Amendment freedoms.

In Healy the Court stated that there "can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges" the First Amendment freedom of association. The university bears the burden of justifying its decision rejecting the application for recognition. Although university authorities have a legitimate interest in prohibiting student activities intended to and likely to incite or produce imminent lawless action or those that materially and substantially disrupt the work and discipline of the school, the record in Healy disclosed only an unsubstantiated fear or apprehension that recognition of the group would produce such a result (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); and Tinker, supra). Thus, the Court found the University's asserted reasons for denying recognition insufficient to meet its "heavy burden" of justifying the infringement on the students' right to freedom of expression.

We think that the standards enunciated in Healy are precisely on point in this case. We therefore turn to TAMU's asserted reasons for denying recognition to GSS to determine their constitutionality under Healy.

Asserted Justifications

In his letter denying GSS official recognition, Dr. Koldus stated that GSS's goals and purposes were not consistent with the philosophy and goals of TAMU. This alone as a reason for denying recognition is clearly forbidden by Healy, where the Court specifically rejected for constitutional purposes the college president's statement that SDS's philosophies of destruction, violence and disruption were "'counter to the official policy of the college.'" Healy, supra. The Court held that:

The mere disagreement of the President with the group's philosophy affords no reason to deny it recognition. As repugnant as these views may have been ..., the mere expression of them would not justify the denial of First Amendment rights. Whether petitioners did in fact advocate a philosophy of 'destruction' thus becomes immaterial. The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.

Dr. Koldus proffered two additional, more specific reasons for denying recognition to GSS. First, he stated that because homosexual conduct was illegal in Texas, it would be inappropriate for TAMU to recognize a group likely to "incite, promote, and result" in homosexual acts. Second, he stated that student organizations did not have the "educational experience, the responsibility or the authority to educate the larger public." The District Court did not reach these issues because its findings of fact precluded analysis under any form of heightened scrutiny.

As to TAMU's asserted interest in preventing expression likely to "incite, promote, and result" in then-illegal homosexual activity, we emphasize that while Texas law may prohibit certain homosexual practices, no Texas law makes it a crime to be a homosexual. Furthermore, there is no evidence that any illegal activity has taken place as a result of GSS's existence in the past, nor is there any evidence that GSS is an organization devoted to advocacy and incitement of imminent illegal, specifically proscribed homosexual activity. Consistent with Healy, we cannot conclude that the "critical line ... between advocacy and action" has been violated in this case.
We are not alone in reaching this conclusion. In Gay Students Organization of the University of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir.1974), the University suspended its earlier recognition of a gay group (GSO) and ordered a strict ban on the group's social functions after a GSO sponsored dance resulted in unfavorable media coverage and criticism by the Governor of New Hampshire. The First Circuit held that the asserted interest in preventing illegal deviate sex acts was insufficient to justify impairment of the group's First Amendment rights because there were neither allegations nor evidence of any illegal or improper acts at GSO's social functions. The Court stated that mere "'undifferentiated fear or apprehension' of illegal conduct ... is not enough to overcome First Amendment rights, and speculation that individuals might at some time engage in illegal activity is insufficient to justify regulation by the state" (citing Tinker, supra).

Similarly, in Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir.1976), the Fourth Circuit concluded that because there was no evidence that the gay group in that case was "an organization devoted to carrying out illegal, specifically proscribed sexual practices," the University's argument that recognition of the group would increase the opportunity for illegal homosexual contact was insufficient to justify the infringement on First Amendment rights. Finally, in Gay Lib v. University of Missouri, 558 F.2d 848 (8th Cir.1977), the District Court had held that nonrecognition of Gay Lib was justified by medical testimony showing that "recognition of Gay Lib would probably result in ... violations of Missouri [sodomy] law." The Eighth Circuit reversed, holding that even "accepting the opinions of defendants' experts at face value, we find it insufficient to justify a governmental prior restraint on the right of a group of students to associate for the purposes avowed in their statement ... of purposes."

With regard to Koldus' assertion that GSS lacked the experience to educate the public or provide referral services, we point out that even if Koldus was correct in arguing that the University faculty and staff are better equipped to perform these functions, "the state and its agents are forbidden from usurping the students' right to choose." Gay Alliance, supra. At the heart of the freedom guaranteed by our Constitution is the freedom to choose--even if that choice does not accord with the state's view as to which choice is superior. In Gay Students Organization, supra, the First Circuit held that the gay group's

efforts to organize the homosexual minority, "educate" the public as to its plight, and obtain for it better treatment from individuals and from the government thus represent but another example of the associational activity unequivocally singled out for protection in the very "core" of association cases decided by the Supreme Court.

More important, TAMU presented no evidence, nor did the District Court find, that such a goal would "infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education." Healy, supra.

We therefore conclude that none of the reasons for nonrecognition proferred by Dr. Koldus are sufficient to justify the infringement on appellants' First Amendment rights. At trial, however, TAMU asserted yet another alleged justification. It claimed that recognition of GSS would encourage more homosexual conduct, resulting in an increase in the number of persons with the psychological and physiological problems TAMU's experts claimed were more prevalent among homosexuals than among heterosexuals. Thus, TAMU argued that denial of recognition was justifiable as an appropriate means of protecting public health. The District Court stated that this testimony was "credible" although it declined to rely on the evidence, pointing out that the University did not offer such a rationale as a basis for Koldus' decision in 1976.

This asserted justification must fail for the same reasons the others did: TAMU has simply not proven that recognition will indeed imminently result in such dire consequences. The speculative evidence offered by the defendants' experts "for which no historical or empirical basis is disclosed," cannot justify TAMU's content-based refusal to recognize GSS. Gay Lib, supra. We think that on this record TAMU's public health argument is precisely the kind of "undifferentiated fear or apprehension" that the Supreme Court has repeatedly held "is not enough to overcome the right to freedom of expression." Tinker, supra; Healy, supra.

In Gay Lib, supra, the Eighth Circuit concluded that denying recognition to a gay group "smacks of penalizing persons for their status [as homosexuals] rather than their conduct, which is constitutionally impermissible" (citing Robinson v. California, 370 U.S. 660 (1962)). We similarly conclude that none of TAMU's asserted justifications are sufficient to overcome the violation of GSS's rights under the First Amendment.

This leaves TAMU's final argument: that because it never created a forum open for First Amendment discourse, no First Amendment violation has taken place.

Public Forum

The District Court found that TAMU had not "created a forum that is generally open to student groups" because it had traditionally refused to recognize fraternal organizations. Finding that GSS was such a fraternal group, the Court concluded that GSS failed to come within the class of student groups entitled to First Amendment protection under Widmar v. Vincent, 454 U.S. 263 (1981). This conclusion was erroneous. As we have already found, GSS was not merely a fraternal group and was not denied recognition on that basis. Rather, we think that GSS is similar to many other student groups that have received recognition in the TAMU forum -- except, of course, for the pro-homosexual nature of its message.

Moreover, we do not agree that by virtue of its traditional exclusion of social fraternities, TAMU may escape the constitutional dictates of Widmar, supra. In Widmar the Supreme Court held that where a state supported university opens its facilities for use by student groups, it may not exclude a particular group based on the content of the group's intended speech absent a compelling state interest and proof that the interest would not be served by a less restrictive alternative. As we interpret it, one of TAMU's arguments on appeal is that because it has traditionally refused to recognize fraternal groups, it has not created a "generally open forum" within the meaning of Widmar; thus it can refuse to recognize any group--not merely fraternal or social groups. In support of this argument, TAMU relies upon Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983). Although we have grave doubt that this really presents an arguable contention in view of TAMU's recognition of so many other similar groups, we assume that Perry requires us to reach the issue and proceed to determine whether Perry compels reversal or remand--or both.

In Perry, the Supreme Court held that a public school district could constitutionally limit union use of its internal teacher mailbox system to the exclusive bargaining representative of its teachers. The Perry Court relied heavily on its finding that the mailbox system was not a "public forum" within the scope of Widmar --nor was it a "limited public forum" open only to certain groups or for the discussion of certain subjects. We think that even if TAMU has not created a generally open forum, as in Widmar, it has at the very least created a limited public forum--which Perry tells us is "limited" in the sense that "the constitutional right of access would ... extend only to entities of similar character" to those granted access. Thus, the Perry Court held that if the school had opened its mailboxes to the Cub Scouts or the YMCA, it could not restrict access by "other organizations that engage in activities of interest and educational relevance to students." In the instant case, then, because TAMU has opened its forum to other similar student groups, it may not close the forum to GSS without a compelling reason for doing so.

The conclusion that TAMU is at minimum a limited public forum is buttressed by our recent opinion in Ysleta Federation of Teachers v. Ysleta Independent School District, 720 F.2d 1429, 1433 (5th Cir.1983), where we had occasion to interpret and apply Perry to a slightly different fact situation. In Ysleta, an employee organization's access to the school district's internal mail system was suspended by the school superintendent, who stated that certain materials distributed in the boxes by the appellant did not accord with his interpretation of school policy on a particular issue. We began by recognizing that under Perry, the internal mail system of a public school is not a traditional public forum. We added, however, that such a mail system might become a designated public forum if the system is open for use by the general public. Similarly, it might become a "limited public forum by designation" if the school opens it for use by certain groups or for the discussion of certain subjects. We concluded that the Ysleta mail system was a "limited public forum by designation," for reasons similar to those that convince us that Perry presented a different forum than that we confront in the instant case.

More important, and in our opinion dispositive, is the fact that Perry squarely held that if the selective access policy adopted by the Perry schools functioned to "discourage one viewpoint and advance another," strict scrutiny would apply "regardless of whether a public forum [was] involved." Perry, supra. The five member majority concluded that the schools' denial of access to all but one union was based on the unions' "status," i.e., rival unions as opposed to exclusive bargaining unit, not their views. Concluding that the access policy was viewpoint neutral, the Court questioned only whether the restriction was "reasonable in light of the purpose which the forum at issue serves." Contrastingly, in this case TAMU admits and the District Court found that TAMU allows other views of homosexuality to be presented on its campus. Moreover, the record shows that TAMU recognized other groups that sought acceptance and integration of their particular lifestyle in the University community. We think that the denial of recognition to a student group wishing to express its own views on the same or similar subjects is clearly the sort of viewpoint based discrimination forbidden by Perry in any type of public forum.

This leads us to consider whether any of the asserted reasons for the denial of recognition constitute a sufficiently narrow and compelling state interest to uphold the denial under the public forum analysis we have discussed supra. As already determined, all of TAMU's asserted reasons for nonrecognition were insufficient to justify infringement of GSS's rights under the straightforward First Amendment analysis. For the same reasons, they are insufficient to state a compelling interest for content-based regulation in TAMU's forum.


TAMU's refusal to recognize GSS as an on-campus student organization impermissibly denied appellants their First Amendment rights. The judgment of the District Court is therefore reversed and the case is remanded for the entry of appropriate injunctive and declaratory relief in accordance with this opinion.