Good News from the Seventh Circuit
August 23, 2005
by David French
First, the loss of First Amendment rights presumptively constitutes an irreparable injury for which there is no adequate remedy at law, and an injunction protecting First Amendment rights is also presumptively considered to be consistent with the public interest. Joelner, 378 F.3d at 620. The district court instead concluded that there had been no showing of irreparable harm because CLS “continues to exist” and may “carry-on its business,” including holding meetings on campus. This is contrary to Healy v. James, 408 U.S. 169 (1972). In Healy, the Supreme Court held that a public university’s refusal to confer official student organization status on a Students for a Democratic Society chapter violated the students’ First Amendment associational rights. The Court emphasized that the loss of the right to use campus facilities for meetings was the “primary impediment to free association flowing from nonrecognition,” but the Court also specifically stated that the loss of access to campus bulletin boards and the student newspaper as modes of communication were “impediments [that] cannot be viewed as insubstantial.” Healy, 408 U.S. at 181. The Court characterized the university’s denial of recognition as “a form of prior restraint” and placed the burden on the university to justify it, saying also that this is a “heavy burden.” Id. at 184. Here, although the revocation of CLS’s recognized student organization status does not prohibit it from holding meetings on campus, it does prohibit it from any access to campus bulletin boards, private meeting space, storage space, a faculty advisor, and university website, publication, and email access. Accordingly, under Healy, the law school’s revocation of CLS’s status as a recognized student organization constitutes a cognizable infringement of CLS’s First Amendment rights, and the law school bears the heavy burden of justifying the infringement. The Supreme Court said in Healy that a public university’s interest in maintaining order and preventing disruption or violence on campus might constitute a sufficient justification for such an infringement, but the university policy invoked here is an affirmative action/antidiscrimination policy, not one that implicates the university’s interest in maintaining order and preventing disruption.