The opinion of the court was delivered by: G. PATRICK MURPHY, Chief Judge, District
This matter is before the Court on Plaintiff's motion for a preliminary
injunction. The parties agree that the record is sufficient for resolution
of the preliminary injunction issue but that additional discovery is needed
for final disposition of the case. A motion to dismiss Counts III through VI
of the complaint is pending. Apparently, Defendants intend to answer
Plaintiff's First Amendment freedom of expressive association and free speech claims (see
Doc. 35, moving to extend time to respond to Counts I and II
until after disposition of motion to dismiss).
The facts are undisputed. Plaintiff is an unincorporated
student organization of Southern Illinois University (SIU) School
of Law and is a local chapter of the national organization known
as the Christian Legal Society (CLS) (Doc. 1, ¶ 2.1). SIU School
of Law is a public law school and is a division of SIU (id. at
¶ 3.11). Until March of this year, Plaintiff enjoyed the status
of a registered student organization of SIU School of Law (see
id. at ¶ 3.12 and Ex. D). This status conveyed certain benefits
and privileges, including access to space on law school bulletin
boards, private meeting space within the law school, storage
space within the law school, law school website and publication
access, email access on the law school's List-Serve, eligibility
for certain funding through the law school, and use of the SIU
name (see id. at ¶ 3.13 and Ex. E).
Plaintiff requires that its members and officers agree to and
affirm the following Statement of Faith:
Trusting in Jesus Christ as my Savior, I believe in:
One God, eternally existent in three persons,
Father, Son and Holy Spirit.
God the Father Almighty, Maker of heaven and earth.
The Deity of our Lord, Jesus Christ, God's only Son
conceived of the Holy Spirit, born of the virgin
Mary; His vicarious death for our sins through which
we receive eternal life; His bodily resurrection and
The presence and power of the Holy Spirit in the
work of regeneration.
The Bible as the inspired Word of God.
(Id. at ¶ 3.6, citing Ex. B)
CLS interprets its Statement of Faith to require that
officers and members adhere to orthodox Christian
beliefs, including the Bible's prohibition of sexual
conduct between persons of the same sex. A person
who engages in homosexual conduct or adheres to the
viewpoint that homosexual conduct is not sinful would
not be permitted to serve as a CLS chapter officer or
member. A person who may have engaged in homosexual
conduct in the past but has repented of that conduct,
or who has homosexual inclinations but does not engage in or
affirm homosexual conduct, would not be prevented
from serving as an officer or member.
(Id. at Ex. G) (emphasis added)
On March 25, 2005, Defendant Alexander advised Plaintiff's President, via
letter, that the foregoing interpretation, which Plaintiff had adopted as
its policy, violated the following SIU policies:
It is the policy of Southern Illinois University at
Carbondale to provide equal employment and education
opportunities for all qualified persons without
regard to race, color, religion, sex, national
origin, age, disability, status as a disabled veteran
or a veteran of the Vietnam era, sexual
orientation, or marital status. [referred to
hereinafter as the "Affirmative Action Policy"]
No student constituency body or recognized student
organization shall be authorized unless it adheres to
all appropriate federal or state laws concerning
nondiscrimination and equal opportunity. . . .
[referred to hereinafter as the "Board of Trustees
(Id. at Ex. H) (emphasis added) Consequently, Plaintiff's
status as a recognized student organization was revoked (id..).
Plaintiff seeks preliminary injunctive relief to restore its
rights as they were on March 24, 2005. While Plaintiff frames the
relief it seeks in terms of restoring the status quo, Defendants
frame it much differently. Defendants interpret Plaintiff's
request as asking the Court to negate SIU's facially neutral
Affirmative Action Policy by preventing SIU from enforcing it.
In order to obtain a preliminary injunction, Plaintiff must
show that (1) it is reasonably likely to succeed on the merits;
(2) no adequate remedy at law exists; (3) it will suffer
irreparable harm which, absent injunctive relief, outweighs the
irreparable harm Defendants will suffer if the injunction is
granted; and (4) the injunction will not harm the public interest.
Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 619 (7th Cir.
2004). If Plaintiff meets this threshold burden, then the inquiry becomes a "sliding scale" analysis where
these factors are weighed against one another. Id. "When a
party seeks a preliminary injunction of the basis of a potential
First Amendment violation, the likelihood of success on the
merits will often be the determinative factor." Id. Often is
not always, however, as illustrated by this case.*fn1 Here,
the Court's inquiry must balance the likelihood of success on the
merits and the irreparable harm that will result to Plaintiff if
the preliminary injunction does not issue.
SIU's Affirmative Action Policy is facially neutral. The law is
clear that where a university promulgates a valid rule, it may
deny, withdraw, or suspend the benefits of participation in the
internal life of the college community to any group that reserves
the right to violate any valid campus rules with which it
disagrees. Healy v. James, 408 U.S. 169, 193-94, 194 n. 24
(1972).*fn2 Although the States and school officials have
comprehensive authority to prescribe and control conduct in
state-operated educational institutions, courts must be vigilant
to protect First Amendment freedoms because the "college
classroom with its surrounding environs is peculiarly the
`marketplace of ideas.'" Id. at 180.
Under the Affirmative Action Policy, and as a consequence of
revocation of recognized student organization status, Plaintiff
is not forced to accept anyone as a member. This case does not
involve the denial of admission to a club or even the denial of
the right to engage in a particular activity, per se, and this is what takes it outside of the ambit
of the heightened First Amendment protections mentioned above.
Plaintiff submitted two affidavits from the current and past
Presidents of Plaintiff stating that they are "aware of no
individual who has ever submitted an application for formal
`membership' or sought a leadership position in CLS at SIU and
been denied on the basis of the individual's refusal or inability
to affirm the CLS Statement of Faith or to endeavor to live their
life consistent with the CLS Statement of Faith" (Docs. 21, 32).
All that is involved is access to the bulletin boards, private
meeting space, storage space, website and publication access,
email access, funding eligibility, and use of the SIU name. The
question is not whether the forced inclusion of an individual
would significantly affect Plaintiff's ability to express public
or private viewpoints. That was the issue involved in Boy Scouts
of America v. Dale, 530 U.S. 640 (2000), which Plaintiff cites
in its papers. The revocation of recognized student organization
status has not in any way forced Plaintiff to alter its message
or expression as in Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557 (1995). Here, Plaintiff's
right to meet, assemble, evangelize, and proselytize are not
impaired. Instead, Plaintiff seeks SIU's endorsement as a
recognized student organization, with all the accoutrements
thereof, and claims that it has and will continue to suffer
irreparable harm if it is not restored to recognized student
organization status "during the critical recruitment period at
the beginning of the fall semester" (Doc. 20, ¶ 3).
It is not clear that Plaintiff ultimately will prevail on the
merits at best it is a close question. There is no showing of
irreparable harm: the organization exists, will continue to
exist, and will meet and carry-on its business. SIU's withholding
of recognized student organization status only means that
Plaintiff will have to use other meeting areas and other ways to
communicate with members and potential members. In this day and
age, it hardly can be said, as claimed during the hearing, that no alternative channels of communication exist.
See Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 53 (1983). It is speculative that the withholding of
recognized student organization benefits would harm, much less
irreparably harm, Plaintiff.
For the foregoing reasons, Plaintiff's motion for a ...