Wednesday, October 28, 2009

Gaming the System: University Bad Faith and the Problem of Mootness   [David French]

Yesterday, the Eleventh Circuit Court of Appeals dismissed an appeal and ordered the dismissal of a lawsuit filed by Brothers Under Christ, a Christian fraternity that had sued officials at the University of Florida after the university refused to recognize the fraternity because it "discriminated" on the basis of religion. This "discrimination" of course was nothing more than the desire of a Christian fraternity to have, well, Christian members.

In this case, the District Court denied the fraternity's request for an injunction, and the fraternity appealed. The Eleventh Circuit granted an injunction pending appeal (which permitted the group to operate on campus) and then set the case for oral arguments. After oral argument (an argument in which the court seemed skeptical of the university's position), the university changed its policy, recognized the fraternity, and asked that the case be dismissed as moot. Yesterday, the court granted the university's motion, stating (essentially) there was no further need for litigation after the university recognized the group.  

It is becoming increasingly common for universities to defend unconstitutional policies (sometimes for years), make changes at the last possible moment, and then seek dismissal of a case. Just last week, ADF Center for Academic Freedom attorneys argued a case against Arizona State University (retired Justice Sandra Day O'Connor presided) in which the university changed its policies (for the second time) after ASU Students for Life filed their appellate brief and now seek dismissal for mootness.  

In 2007, Temple University sought to moot Christian DeJohn's speech code challenge by changing policies on the eve of the court-imposed summary judgment deadline. Fortunately, the Third Circuit Court of Appeals recognized the obvious: Policies "voluntarily" changed can be changed back — especially when the university won't concede to the illegality of the old policy.

Federal judges sometimes seem to take at face value the completely non-binding assurances of counsel that policy changes, once made, won't be "un-made." Yet one doesn't have to reach far back into history to find examples of colleges not just reinstating policies but actually breaching settlement agreements to do so. While I have seen universities violate even settlement agreements, I have yet to see them defy federal injunctions.

Further, when a case is mooted, students' constitutional rights depend almost entirely on institutional memory and good faith. What happens six years from now, when an activist asks the University of Florida why they recognize "discriminatory Christian groups"? Will the university — which has never conceded the unconstitutionality of its original policy — test the waters again? History suggests they will, and that they'll be willing to drag their students through years of litigation before "voluntarily" complying with the Constitution.

10/28 02:28 PMShare