May 26, 1971


California court says homosexual groups should be recognized

Mere suspicion not grounds for denying rights


(Editor’s note: The following was submitted by Tom Stillitano, Jim Fritz, Russ Bensing and Benson Lichtig.)

The University has denied the chartering of a student organization (Homophiles of Penn State) because they claim they must take time to research the legality of the organization. As students interested in Constitutional law (and knowing how busy one is kept running a University) we felt if was our bound duty to help the University in their research effort. We submit the following case summary from College Law Bulletin:


Associated Students of Sacramento State College v. Butz, Civ No 200795 (Superior Court of Sacramento California, Feb 15 1971)


The case involves the refusal of college officials to grant recognition to the campus Society for Homosextial Freedom although it complied with every existing regulation governing the recognition of campus organizations. An unrecognized organization can use certain bulletin boards, use the free speech area of the campus and hold symposia. With recognition it may use the name of the college in its title, use rooms of the college for meetings free of charge, and avail itself of free banking facilities through the college, the student newspapers, yearbooks, and duplicating equipment. Denial of recognition does not result in prohibition from campus.

The college denied recognition because to do so would conceivably be to endorse or promote homosexual behavior and attract homosexuals to the campus, and expose minors to homosexual advocacy and practice. The proposed society also would create too great a risk which might lead students to engage in illegal behavior.

The courts decision is based upon the theory that once public facilities are opened as a forum, the state cannot control the forum by censoring the ideas, proponents or the audience. The suppression of free speech may only occur in face of clear and present danger or probablt it grounds to fear that serious evil will result if free speech is allowed. It is not enough that the proposed activity would be embarrassing or unpopular in the community.


The court found that:


. . . The denial of recognition in this case seems to be based on mere suspicion, disgust, unpopularity, and fear of what might occur. Mere suspicion cannot be sufficient grounds for denying the Society and the petitioner certain constitutional guarantees. The evidence presented at the hearing was woefully weak in support of any reasonable fear that recognition of the Society would increase the risk that students would engage in illegal homosexual behavior, on campus. The California Supreme Court has ruled that it cannot be assumed that when a group of persons, some of whom are homosexuals, meet together that they shall use the meeting place for illegal activities, or that a person’s use of activities can be denied on the bases of what one “suspects” he might do on such premises.

Therefore, in absence of evidence of the threatened violations of the law and clear and present danger that recognition would bring about substantial evils, the denial of recognition is an arbitrary and unconstitutional application of the college’s authority. The college was ordered to reconsider the application for recognition in light of the court decision