“Just Kidding” Defense Trumps First Amendment Rights

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As David French discusses at Phi Beta Cons, a protracted legal battle between Brothers Under Christ (BYX) and the University of Florida (UF) took an unfortunate turn yesterday.  The Eleventh Circuit dismissed BYX’s lawsuit against the University, saying that it was no longer a live controversy.  The history of the case and the University’s actions render this decision quite disturbing.

BYX is a Christian fraternity.  Like many student groups that organize around a set of beliefs, BYX limits its membership to students who adhere to the group’s core beliefs—in this case, Christian beliefs.  On May 17, 2007, UF refused to let BYX become an official registered student organization because it considered BYX’s membership standards to amount to “religious discrimination” that violated the University nondiscrimination policy.  Thus, instead of using the nondiscrimination policy as a shield to protect religious organizations, UF—like many other public universities—used it as a sword to punish BYX for its religious beliefs.

BYX sued to preserve its First Amendment rights to free speech, free association, and the free exercise of religion.  For almost two years, UF resisted the litigation in the face of clear Supreme Court precedent holding that nondiscrimination policies cannot be applied in a manner that would burden a private group’s First Amendment rights to organize around a wide variety of beliefs.  But after oral arguments at the Eleventh Circuit, UF got cold feet.  At the last possible moment, it changed its policy, registered BYX, and moved the court to dismiss the appeal, essentially telling the court, “We were just kidding.”

Surprisingly, the Eleventh Circuit granted UF’s motion and dismissed the case for mootness, essentially holding that there was no longer a reason to litigate.  Unfortunately, this ruling provides no security for the student group other than the “good faith” of the same university that fought so hard to keep it off campus.  Moreover, the decision encourages universities to resist constitutional compliance and discourages student groups from seeking to hold universities accountable for their unconstitutional policies.  Why wouldn’t university officials fight the little student group on campus when they can wear it down through protracted litigation and then change the policies at the last possible instant—without penalty—if things look bad?

In short, the Eleventh Circuit has made judgment day for public universities a more remote possibility, and thereby darkened the constitutional horizon for students and student organizations in Florida, Georgia and Alabama.

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