University of Virginia Library

Attachment I
STUDENT AFFAIRS AND ATHLETICS COMMITTEE OF THE
RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA

I. Background of the Case

A. The Gay Student Union, an organization of homosexuals, was recognized by Student Council at its meeting of 10 October 1972. To be recognized, the organization must comply with University regulations and must fulfill other requirements. Recognition means that the organization may use University facilities for its notices, meetings, visiting speakers and other activities which comply with University regulations and will render the organization eligible to apply for an allocation from the Student Activity Fund. Recognition of the organization is required by Healy v. James, 92 Sup. Ct. 2338 (1972).

B. The Gay Student Union then requested an allocation of $75.00 from the Student Activity Fund. This request was heard by the Organization and Publications Committee of the Student Council. The Committee reduced the request to $45.00 and, as it may do, the Committee then took the matter to Student Council.

At its meeting of 28 November 1972, the Student Council discussed the allocation and by a divided vote, 12-9, approved the $45.00 allocation, limiting the permissible expenditures as follows:

The Gay Student Union may use their allocated monies only for expenditures in the following categories; Advertisement, Guest Speaker's Expenses, Travel Expenses for Member to the Southern Gay Coalition in Atlanta, Office Supplies, Purchases of Books, Postage, Printing, Telephone Service, and Xeroxing.

The Union was informed of this allocation on 29 November 1972. Under the regulations of the Rector and Board for handling the Student Activity Fund, an appeal is possible from the Student Council to the Student Activities Committee of the University. Such an appeal was taken by a group of University students.

C. The Student Activities Committee heard the appellants on December 19, 1972. Both the appellants and the Gay Student Union were represented by counsel. After a full and extended hearing, the Committee sustained the Student Council allocation by a divided vote.

D. An appeal was then taken to the President and Rector and Visitors. This Committee sat on 17 January, 1973 as hearing agency for the Rector and Visitors. The President of the University participated in this hearing and made his recommendation to the Committee. A joint hearing by the President and the Committee was held to mature the case for a timely recommendation to the Rector and Visitors at its February meeting. Had separate hearings been held, a report and recommendation by the Committee would have been delayed until the April meeting of the Rector and Visitors. In addition, the legal expenses of the parties would have been greatly increased had separate hearings by the President and by the Committee been conducted.

A full hearing was conducted. Both the appellants and the Gay Student Union were represented by counsel. By agreement with counsel the transcript made by the Student Activities Committee at its meeting of 19 December 1972 was available to the Committee. This transcript is referred to in the report as "AR" with the page number as "AR-4". The transcript made by this Committee is referred to in this report as "BR" with the page number as "BR-6". Copies of both transcripts and the full record with exhibits is available to the Board.

II. Procedural Questions Raised Inter Alia in Hearing the
Case

At the hearing by the Student Activities Committee on 19 December 1972, the Appellants, Hurd, et al., sought admission to the hearing of one Justice Keene Holland, who was not a witness or party. Mr. Holland was excluded from the hearing. Thereafter, Mr. Holland, with the Appellants, petitioned the Circuit Court of Albemarle County for an injunction barring distribution of all student activity funds until the Student Activities Committee agreed to hold open meetings. This injunction was sought under the provisions of the Virginia Freedom of Information Act. Counsel for the University contested the jurisdiction of the Court in this case and the Court held that jurisdiction in the matter was properly in the Circuit Court of the City of Richmond. The Judge directed that the case be retained on his docket for a reasonable time to give the petitioners an opportunity to file their case with the Circuit Court of the City of Richmond to determine whether that Court would assume jurisdiction. At the hearing conducted by the Student Affairs and Athletics Committee on 17 January 1973, Mr. Holland was again presented and again excluded. The Appellants' objections were duly noted.

Counsel in the case are agreed on the procedure for appeal from the decision of the Student Activities Committee and on the procedure for hearing before the President and the Student Affairs and Athletics Committee. However, counsel for the Appellants desire that the votes of the Committee and the Board be published. This request was denied. To this denial Counsel for Appellants excepted.

III. Questions Before the Committee

The Gay Student Union is recognized by Student Council. No questions concerning recognition are presented in view of Healy v. James, 92 Sup. Ct. 2338 (1972). All questions considered by the Committee assume that GSU will use University facilities, such as rooms, bulletin boards and media, will invite speakers, conduct discussions and, in short, have the privileges and enjoy the protection of any other recognized student organization.

There are no laws prohibiting the overt posture of homosexuality. The only laws relevant deal with certain physical homosexual acts. No question of the legality of the organization as such is presented. Under the Healy rule it must be presumed that members of a group, such as the GSU, will act legally until the contrary is shown. The members of the organization have agreed to abide by University regulations while on the grounds.

The only bearings Virginia Code § 18.1-212 (the sodomy statute), or the common law "buggery" felony, which the statute superseded, might have in this case is that these laws express a public consensus (which at one time certainly existed concerning homosexual physical acts) and might also be a target for change by the GSU to obtain legalization of homosexual acts between consenting adults. With these considerations in mind, the Committee dealt with the following questions:

A. What is the scope of power of the Rector and Visitors to authorize disbursement of funds to an organization of homosexuals when these funds are collected by a mandatory fee imposed upon these persons as well as upon the majority of heterosexual students?

(1) From the aspect of relationship to the educational purpose of a public corporation?

(2) From the aspect of a disbursement of public funds to an organization advocating a particular type of sexual relationship?

(3) From the aspect of trust relationship based upon the limited group from which the funds are drawn and the stated purpose for which the funds are collected?

B. Are the purposes of the Gay Student Union such as to entitle it to support from the student activity fund pursuant to the guidelines of the Rector and Visitors established in its Resolution of 5 June 1970?

C. In addition to the questions appearing in "A" and "B" above, the Committee was presented with the following questions which were raised specifically by the Appellants, Hurd, et al.

(1) Does the allocation contravene the public policy of Virginia?

(2) Does the mandatory nature of the fee compel the appellants to contribute to the propagation of opinions and to support political and religious activity with which they disagree?

(3) Does the allocation cast obloquy upon "our University and upon us as its students"?

(4) Is the allocation an "affront to the citizens and taxpayers of the Commonwealth"?

The Committee deals with the case under Questions "A" and "B" above. The Rector and Visitors is a proper agency to construe its own powers and interpret the guidelines which it has prescribed for distribution of a fund collected by it. On the other hand, the Rector and Visitors should not attempt to determine the public policy of the Commonwealth. The allocation was an "affront" to some citizens and taxpayers and may have cast "obloquy" upon some. But the recommendations of the Committee are not based on these factors.

The Committee also preferred not to rest the case upon the interesting constitutional argument of the Appellants. This argument is that funds taken from the appellants without their consent should not be applied to support opinions which they disbelieve or political or religious activity with which they disagree. Were this argument pursued to its logical conclusion, it would preclude support of a professor from tuition or tax funds if the appellant did not agree with what he taught. This would bring academic freedom -- and indeed the operation of any government, both of which are financed by mandatory fees or taxes -- to a quick and decisive end at the will of a dissenter.

Having dealt with the allocation under Questions "A" and "B" above, the Committee then dealt with additional questions:

D. Are the guidelines prescribed by the Rector and Visitors sufficiently definite and reasonable to satisfy"due process" requirements?

E. If the Rector and Visitors determine to deny funds to the GSU, will this action be subject to an effective attack as:

(1) Denial of the rights of the members to freedom of speech and of assembly?

(2) Denial to its members of equal protection of the laws?

IV. Recommendations and Summary of Supporting Reasons

A. The Committee recommends that the request of the Gay Student Union for an allocation of $45.00 from the Student Activity Fund be denied.

1. The GSU cultivates and advocates a style of sexual life. This is a private and personal matter which has no reasonable relationship to the educational purposes of the University. The Board has no power to authorize a disbursement of funds for a purpose unrelated to the educational purposes of the University. The Board also has no power to authorize the disbursement of public funds for a private and personal purpose. The activity funds are held by the Board subject to an express trust implied from the facts. This trust requires that the funds be used for a purpose beneficial to the University and to support organizations to which all students have de facto access. Heterosexuals have no de facto access to the GSU and its social events. The activities of the Union are not clearly beneficial to the University.

2. The allocation is not in accordance with the guidelines prescribed by the Board in 1970. The words "social entertainment" as used in the guidelines must be interpreted in context. When interpreted in context, the words are read to exclude an organization such as GSU whose activities are substantially social as well as to exclude payment for social events of an incidental nature by organizations whose activities are not substantially social. This has been the settled policy of the Board and must necessarily be its policy because of restrictions upon its powers to disburse the funds.

The Constitution of GSU and its statement of purposes are sufficiently broad to include engaging in propaganda and political activity to change legislation. No funds should be granted to an organization with a constitution and statement of purpose of this scope unless:

a. The constitution expressly limits the organization to one of the exempt purposes stated in IRC § 501(c)(3) and

b. The constitution specifically excludes as purposes of the organization engagement in propaganda and efforts to influence legislation.

An exception should be made for "public interest" organizations so far as efforts to influence legislation are concerned and to its development or dissemination of information based on nonpartisan analysis, study or research.

An organization with a constitution sufficiently restricted that it would not reasonably embrace propaganda and efforts to influence legislation need not include the special restrictions set forth prior to an allocation of funds.

Based upon the disavowals by the GSU spokesmen of the probable political activities of the GSU, the Committee is not prepared to rest its decision solely upon the issue of political activity to change legislation. The Committee, nevertheless, concludes from the Constitution, statement of purpose and testimony, that the organization reasonably may be expected to engage in propaganda and political activity in violation of these guidelines.

B. The Committee observes that the practice of designating special uses of funds allocated to organizations may involve an unconstitutional interference with the freedom of speech or of assembly of members of the organization.

C. The Committee recommends that the Student Activities Committee be directed to reexamine allocations of funds during the 1972-73 session and hereafter in accordance with the decision of the Board in this case and to halt allocations to all organizations not meeting the requirements of the 1970 guidelines as here interpreted.

V. Findings of Fact

Homosexuality is an extremely complex condition and many conflicting views concerning homosexuality have been expressed. Much of the clinical data concerning homosexuals, with the exception of that assembled by Dr. Kinsey for his "Sexual Behavior in the Human Male (1948)" and data assembled by a few other investigators, has been for the purpose of gauging the efficacy and wisdom of criminal provisions aimed at homosexual physical acts. The purpose for which the data has been assembled has determined its scope and content. Consequently, investigations of this nature have yielded little of immediate value to the Committee.

For various reasons, the Gay Student Union has managed no consistent and detailed pattern of activity. Dr. Franklin Kameny, of the District of Columbia gay organization, has spoken to the Union. His reported remarks, however, are stated by Mr. Cress not to be an accurate statement of local organizational policies. (BR-24-25.)

Members of the GSU and Women's Liberation jointly sponsored a dance about equally attended by males and females. This event was described by Mr. Vogel as "a chance *** to get together in an agreeable environment and have a little dialogue". (AR-30.) One issue of a newspaper has been published, although an article in this, indicating that "non-homosexuals" (or "straights") would not be welcome as members of the GSU, drew censure from the members. (AR-33.) Pamphlets have been published announcing meetings and the Kameny speech. (AR-30.) The GSU was represented by spokesmen at a meeting of the Society on Human Sexuality of the Unitarian Church. The spokesmen appear to have answered questions at this meeting for about three or four hours. (AR-32.) A typical question, as described by Mr. Cress was:

What if my child grows up to be gay? ***What sort of life can I expect him to have? (BR-44.)

These activities certainly offer some indication of the future direction of effort by the GSU. It is fair to assume that the GSU will have more speakers, more dances (with or without the women's liberation contingent) and will sponsor a publication which may or may not be similar to the one issue of "Mr. Jefferson's Gay Student Journal". (Ex. 7.) In its petition for recognition, the GSU states it will "Present outside speakers on gay liberation; maintain a library of gay newspapers and books on gay liberation; provide counselling service to gays; present films on gay liberation." (Ex. 6.)

In its endeavors to ascertain the purposes and proposed activities of the GSU, the Committee relies primarily upon the Constitution and Statement of the Purposes of the Union as submitted to Student Council. (Exhibits 2 and 5.) Mr. Cress, the current President of the GSU, and a witness offered at the hearing by the Student Activities Committee, as well at the hearing by this Committee, states his opinion that these documents probably should be the principal guide for the Committee in determining the purposes and activities of the organization. In addition to the information contained in these documents; however, the Committee has heard explanatory statements by Mr. Cress and has examined statements by Mr. Vogel, a GSU officer, appearing in the transcript of hearing by the Student Activities Committee.

Possible Efforts to Change Laws

The Constitution of the GSU, in its preamble, states, in essence, that heterosexuals (society) are responsible for the emotional and personal difficulties experienced by homosexuals. The premise of the Union is that homosexuals are normal. The members of the Union thus organize to change present societal attitudes toward homosexuality and:

to assist homosexuals to refuse to conform to societal attitudes toward and expectations of homosexuals.

There are no laws making homosexuality illegal. Virginia Code § 18.1-212 penalizes certain physical acts between persons of the same sex, which, by common knowledge, are usually involved in the physical consummation of a homosexual relationship. That the phrase quoted indicates a purpose of the GSU to seek the repeal of § 18.1-212 is denied by Mr. Cress (AR-33; BR-36.) The Committee accepts his statement without reservation as an accurate reflection of his personal view.

The Committee recognizes, however, that this statute is the only formal (legal) expression of public attitude concerning an aspect of homosexuality. The statute may be described as the legal linchpin by which diverse attitudes concerning homosexuals are joined in a semblance of uniformity. It is the "symbol" of a "public" attitude towards homosexual acts.

C.S. Lewis wrote concerning this public attitude: (Lewis, "Surprised by Joy" (1956))

Persons appearing before this Committee have discussed the "public" or "society" as if this were a monolithic entity, assuming a particular posture or demonstrating a particular attitude. Mr. Cress appears to see the public as the "straights" -- those other than homosexuals. His adversaries see the public as the majority to whom homosexuality is repugnant. This Committee is fully aware that heterosexuals, the great majority in this country, reject the minority of homosexuals when these individuals are identified. But even though this rejection occurs, attitudes of the rejectors range from sympathy for an "oppressed minority" to active physical violence against the identified homosexual. At only one point in public policy statements have these attitudes been brought to a single bearing. This is in the sodomy statute. Until this statute has been declared unconstitutional, or is repealed by the General Assembly, it is unlikely that organized homosexuals in Virginia will progress significantly toward general acceptance of their particular pattern of life. This pattern has, as one of its major ties, the specific acts which the statute prohibits.

A majority of Student Council and of the Student Activities Committee apparently have accepted disavowals by Messrs. Cress, Vogel and, perhaps others, of any intent to operate against the sodomy statute other than by a gradual effort to change public opinion. (AR-31-33, Rinaca-Cress Dialogue.) The Committee concludes from the testimony of Mr. Cress that one major object of the GSU is simply to gain recognition from the heterosexual majority of the condition of the members of the GSU as a "normal" aspect of sexual diversity. The homosexuals might continue to be rejected by the heterosexual majority after this "normal" sexual diversity is recognized; but the homosexuals, when identified, would not be actively oppressed.

The Committee also concludes from the testimony of Mr. Cress and Mr. Vogel (the latter appearing before the Student Activities Committee) that homosexuals are aware of the risk that a society organized with the heterosexual family as the basic economic, social and political unit will always regard the advocacy of homosexuality as an attack upon it. If this is the case, the homosexual will not be fully accepted so long as the heterosexual family is the foundation unit of the society in which the homosexual seeks full participation.

If this assessment of the remote chance of the homosexual for full acceptance in a heterosexual society is accurate, it may well be that an effort to make changes in law is not a matter of particular priority in the planning of members of the GSU. We must observe, however, that the Constitution of the GSU was prepared before funds were sought and that the testimony of Messrs. Cress and Vogel was not offered other than as representation of their personal opinions.

The Committee finds the Constitution of the Union sufficiently broad to embrace an effort to change state law. This effort might be immediate if a member of the Union were prosecuted under § 18.1-212 of the Code for an act prohibited by that section. Such a defense might not be regarded as "political action" under the guidelines of the Rector and Visitors.

The effort would appear to have no major priority as a concern of the Union without such a prosecution. This lesser priority would involve the "political activity" which the guidelines contemplate as a basis for denial of funds. The Committee considers, however, that this "political aspect" of the work of the GSU would, in any event, be only part of its effort. The Committee finds, however, another "political" aspect reasonably contemplated in the activities of the Union as well as social activities involved in its organization. These social activities will be necessarily intensive if the GSU is to survive.

Social Activities

If the GSU is to function as its constitution and statement of purposes contemplate, it must organize and remain organized for an extended time. One of the requirements for its continued organization (or group cohesion) is the development of an intense sense of identification among the members. In the case of the GSU, this will require extensive social activity, confined largely to the membership, and perhaps extending to other groups regarding themselves as "oppressed". Also required will be a GSU posture that society is hostile and that GSU is under active or potential attack. The informational contact with the public will involve the supply of facts favorable to the Union, the suppression of facts that are unfavorable, and the publication of statements that are "non-controversial" in the sense that the statement is made with the intention that analysis of it and counter-statements will be rejected.

It is probable that the grant of recognition by Student Council, with the local University acceptance of GSU that this recognition implies, is the seed from which destruction of GSU will grow. Financial support might well seal its doom. The major element of cohesion among homosexuals, whose personal attachments, as noted by Kinsey and others are ephemeral and subject to rapid change, is the presence of the overbearing and hostile "society".

All sexual demands and expectations are essentially private in nature. But these demands among homosexuals are intensely private when compared to similar demands among heterosexuals. This intense element of privacy is due principally to the social pressure upon homosexuals -- expressed in the abuse, ridicule, economic pressures and, infrequently, criminal action -- to which these persons are subject. Mr. Cress has mentioned the insecurity of homosexuals which sometimes tends toward paranoia (BR-31, 52).

To organize, the homosexual must "externalize" or "socialize" his intensely private expectations and demands. Mr. Cress has testified that his organization is reluctant to disclose its membership except to exclusive audiences. The officers of the Union are probably the only members likely to be available to public view as identified homosexuals (BR-32). If the Union is to develop any cohesion and degree of permanence in organization, its members must engage in intensive intra-group activity, not only through discussions in which they reassure each other that their condition is normal and that they are the subjects of unjust repression, but also through social events restricted to the members or to persons who share a sense of social alienation or repression. By increasing their sense of identification, or reliance upon each other, they will attempt to reinforce their predisposition (whether the predisposition is or is not based upon preference) toward a homosexual pattern of life. (BR-61, Alford-Cress Dialogue).

Mr. Cress has testified that promoting a particular style of sexual life is not a purpose of the Union (BR-60). But the Committee is of the view that the Union cannot remain organized unless this promotion occurs and that Mr. Cress will find that his position must change if his organization is to endure. Mr. Cress has testified that social events have been a small part of the very limited activity which the Union has been able to undertake. He notes, nevertheless, the sense of solidarity and confidence such events might instill in members. (BR-59-60, Harrison-Cress Dialogue.)

Political Activity through Propaganda

Once organized and acting internally in an effort to assure its existence, the Union will have to supplement this internal action by external activity. It is clear from all the testimony on the point offered by the GSU representatives that this action will take basically three forms:

1. Protective -- the individual homosexual being supported by the strength the Union can marshal.

2. Informational -- members of the Union appearing to answer questions in an environment in which controversy is not foreseen -- or in which the homosexual is to explain himself while not being on the defensive.

3. Propaganda -- the dissemination of "non-controversial" opinion -- or opinions for which analysis or conflicting response is neither sought nor accepted.

The protective features of contemplated action by GSU are amply stated in its constitution and in its statement of purposes. No special problem on the part of the University is seen here. Experience with gay organizations at other universities indicates that the use of violence by GSU members is essentially defensive when violence occurs.

General informational activities appear to be conducted by most of the gay organizations at other institutions. Mr. Cress refers at both hearings to the successful question and answer period conducted with the Society on Human Sexuality of the Unitarian Church (AR-31; BR-44). Mr. Cress states at BR-32:

***And a lot of the people there were parents. After the meeting they came up to me and they told me that we answered a lot of their questions and if--should--any of their children turn out to be gay that they would feel a lot better about it from seeing us and talking to us. They decided it really wasn't the horrible thing they thought it was. They more or less reached these conclusions not through propaganda but through talking with us. This is the sort of thing we want to do towards changing attitudes ***.

Mr. Cress also refers to possible participation in the instruction of classes such as those in abnormal psychology. But in these the GSU representatives were not to participate in the give and take of class instruction but, in the words of Mr. Cress (BR-61):

***[t]he professor gives his lecture on homosexuality from the sick point of view one day, and the next day a panel of three or four members of the GSU will go and field questions from the class, so that both viewpoints are presented***

Mr. Cress also thought that colloquiums or perhaps seminars could be set up on homosexuality (BR-62).

It is clear that in periods permitting questions to be addressed to a GSU member, the questioner and others in the audience might leave the meeting better informed.

There is an aspect of the GSU informational effort, however, that brings GSU within the Board guideline exclusion. "Propagandizing" is defined as "any activity whose purpose is to procure, or present, the acceptance of any social, economic or political theory, as an operating principle of polity; propagandizing shall not be interpreted to include engaging in non-partisan analyses, study or research or making these results available to the public."

If we are to rely principally upon the Constitution and statement of purpose, the GSU postulate reflects the militant stand of the new gay organization. In "coming out" the gay student is declaring that his condition is a normal aspect of sexual diversity. He rejects psychotherapy which in many cases may serve to restore a heterosexual life pattern. He resents suggestions of psychiatric assistance as a response rooted in outdated morality. The organizations exist to cultivate and consolidate the homosexual predisposition of members of the gay group. This general line of reasoning was stated repeatedly before the Committee. The position stems from the basic assumption that society is responsible for the difficulties of the homosexual. This is the essential party line and is essentially propaganda. It is opinion which is not to be controverted and which the gay representatives do not wish subject to analysis or response. This may be in the view of the GSU not opinion but "truth"--but if it is truth then it is assumed "noncontrovertible". The GSU clearly will assist the member in making his adjustment to a hostile society--but that hostile society must be fended off with arguments which are basically partisan statements to secure public acceptance. The GSU spokesmen apparently took pains to play down this militant constitutional statement and equally militant statement of purpose and it is possible that the actual stance of the GSU will be less rigid than its formal statements of purpose suggest.

Role of Conscious Decision Making in Determining Homosexual Conduct

Whether the homosexual makes a conscious decision to adopt this particular style of sexual life or whether he is genetically programmed to this pattern is a question which has perplexed all investigators engaged in clinical studies of homosexuality. Members of the Committee raised the possibility that an immature student might be induced to adopt a homosexual pattern by the influence of GSU members with whom he associated at GSU events. (BR-45-50.) The Committee also was concerned that the point be clarified whether homosexuality was a predisposition from birth, so that a person was locked in such a pattern -- much as race or sex is non-volitional -- or whether simply a question of sexual bias based on choice was involved. Although Mr. Cress attempted to give the best answers he could on this subject, his testimony casts only fitful light upon this matter. From this testimony and studies by the Committee, the following propositions seem fairly accurate.

1. Homosexuality is not an "all or nothing" proposition but all gradations can exist -- from exclusive homosexuality to exclusive heterosexuality with minor homosexual leanings.

2. Some males adopt homosexuality for the novelty of experiment. Others resort to homosexuality under special environmental pressures -- prison conditions, for example. And yet others are predisposed to this particular style of sexual conduct. This predisposition varies quantitatively with various individuals and perhaps quantitatively at different times of life.

3. When a male adopts homosexuality for the sake of novelty or under pressure, physical homosexual acts usually are involved. When a male is predisposed to homosexuality, his predisposition can affect his conduct in a number of ways and it is possible that his sexual behavior will not be affected. Nevertheless, sexual behavior usually is affected by the predisposition of the male and as few homosexual males are continent as heterosexual males are continent.

4. Overt homosexuality, whether manifested as an experiment, under pressure, or by predisposition, is a deviation from the prevailing sexual conduct pattern in society. Much of the repugnance to homosexuality manifested in Western society stems from religious values and to recognition that efforts to popularize homosexuality pose a threat to the heterosexual family which is the basic social, economic, and political unit of the western scheme of public order.

5. There is no firm evidence to indicate that the basis of homosexuality is disease, although instances of homosexuality are sometimes associated with mental diseases, such as senile dementia. This, of course, depends upon the definition of "disease". Abnormal symptoms are present but there is no agreement upon a pathological or psychopathological condition that might contribute to homosexuality; and it is possible, as the homosexual spokesmen assert, that we deal in this situation with a natural and biological deviation.

With these propositions in view, and based upon testimony before the Committee pertaining to the element of choice on homosexuality, particularly the testimony of Mr. Cress, the Committee concludes:

1. GSU members are likely to advocate homosexuality as a normal and desirable form of sexual life.

2. In most instances in which a male adopts or rejects homosexuality as a style of sexual life, he makes a voluntary choice to favor or disfavor homosexual practices.

3. Students who are not dominantly or overtly homosexual may be attracted to homosexuality by association with GSU members, as, for example, by attending GSU events, even though GSU members state they are engaged in no active program of recruiting or seducing others.

4. While University officials no longer stand in loco parentis to students, the voluntary choice of a student who opts for a homosexual life alienates the student from the majority of heterosexuals at the University. The process is disintegrative. To compensate for this disintegrating effect, there are no clear reciprocal advantages to the intellectual community. The members of the GSU may well anticipate tolerance by an informed public of the future, but cannot reasonably anticipate acceptance so long as the organization of that public is keyed to the heterosexual family. The disintegration that occurs within the University community as a result of GSU activities is crystallized by the character and purposes of the organization.

Number of Students Probably Involved in GSU Activity

Dr. Kinsey, in his monumental and controversial study "Sexual Behavior in the Human Male (1948)", estimated that approximately 4% of adult white males were exclusively homosexual; 10% have strong homosexual tendencies for at least three years between sixteen and sixty-five; and about 37% have some overt homosexual experience between adolescence and old age. Another study indicates about 1% of male Swedes have been estimated as exclusively homosexual with about 4% having both homosexual and heterosexual impulses. The British Committee on Homosexual Offenses and Prostitutes (the Wolfenden Committee) could produce no accurate estimate on the number of homosexuals in the British population. The records of psychiatrists and records of criminal prosecutions have proved no satisfactory guide.

The Gay Student Union "statement of purpose" suggests that there are 1,000 homosexuals in the University student population. The Union started with from 12 to 24 members. A student membership of 40 was listed in the request for an allocation from the student activity fund. About 40 or 50 persons heard the speech of Dr. Kameny (AR-31). Mr. Cress has referred to 90 to 100 members currently, some of these not being active. (BR-34.)

There are no adequate criteria to define "homosexuality". This is a major basis for criticism of the Kinsey study. For example, the familiar and transient attachments among adolescents of the same sex have been described as "homosexual". Some psychiatrists have suggested that every human has latent homosexual tendencies.

The main concern of the Committee presently is with the overt homosexual who has identified his homosexual tendencies in unequivocal fashion and who is prepared to defend and advocate homosexuality as an acceptable life style. The Committee estimates based on clinical studies by others that persons in this category within the University do not exceed 300 and that among these not more than 50 will be consistently active members of the Gay Student Union. These figures are comparable to those estimated at other major universities.

VI. Power of Rector and Visitors to Authorize an Expenditure
of Funds for Gay Student Union

A. The Rector and Visitors as a Public Corporation

The Rector and Visitors is described in Virginia Code § 23-69 as a "corporation *** at all times subject to the control of the General Assembly". While this section also grants it powers conferred upon private corporations, except when these powers are restricted to private corporations by the terms of the corporation code, the Rector and Visitors is treated by the Court as a "public corporation" and a "state institution or agency". Its public and governmental administrative character is unquestioned. Phillips v. Rector and Visitors, 97 Va. 472 (1899) (described as "public corporation" and "public institution governed and controlled by the state"); Batcheller v. Commonwealth, 176 Va. 109 (1940) ("department of government"); Holland v. Rector and Visitors (Circuit Court, Albemarle County, 1973, unreported) ("state agency"). The public corporate character of the Rector and Visitors has ramifications in its disbursement of funds not equally prominent in similar disbursements by a private university.

B. Relationship of Disbursement of Funds to Educational Purpose

The purposes of university education are diverse. It is difficult to define with precision limits on the scope of educational activity since these limits change through time and vary with the condition of the society in which educational objectives are pursued. But certainly a primary objective of education at the University of Virginia is to assist those who study here to achieve the highest development of which they are capable, mentally, morally and physically. Choice in pursuits is encouraged. The great variety of organizations formed by students and entitled to use University facilities to accomplish their objectives evidences the atmosphere of toleration prevailing here.

But the Rector and Visitors, as a public corporation, unlike the governing boards of private institutions, must carefully relate its exercises of power to the educational purposes for which the University is established. A general analogy can be made between the educational public corporation and the municipal public corporation with respect to the relationship between corporate purposes and powers. E.g., State ex rel. Curators of University of Missouri v. McReynolds, 193 S.W.2d 611 (Mo. 1946).

The courts often state that a municipality has powers granted in express words, powers necessarily or fairly implied in or incident to the powers expressly granted and powers not simply convenient but indispensable to the municipality's declared objects or purposes. While the Virginia Court has stated that the Rector and Visitors has the implied power to do whatever is "reasonably necessary" to effectuate powers expressly granted, it has also sustained the Rector and Visitors in its operation of an airport on the ground that the enterprise was necessary to and incidental to the full and complete instruction in the course in aeronautics which it has established. The Court thus appears prepared to test powers exercised by the Rector and Visitors in terms of accomplishment of the educational objectives of the University.

The Rector and Visitors has express power by statute only to require a tuition fee. Clearly, fees for the payment of professors and necessary University services and maintenance could be assessed without express authority if the General Assembly fails to appropriate sufficient funds to defray these expenses. But as the Rector and Visitors move toward the imposition of other fees, the importance increases of relating these to a valid educational object. Health and library fees are easily sustained. But beginning in 1929 with the athletic fee, and in 1934 with a publications fee to support "College Topics", the Rector and Visitors commenced to finance student activities which might be challenged on the basis of irrelevance to educational purposes. An athletic program can be sustained on the grounds of physical conditioning and health of the student and as a form of catharsis for the aggressions developed by students in a system of mass education. Publications can be sustained as training for the various writers and editors and as a communications vehicle for University news. Nevertheless, as a few student activities expand to over a hundred, all clamoring for financial support, the relationship of the expenditures to the educational objectives of the University must be scrutinized closely.

This Committee believes a number of questions should be asked about this relationship. Assuming the objectives of the organization are not of an athletic nature, these being supported by the same reasoning supporting a general athletic program, does the organization promote an environment in which conflicting viewpoints can be exchanged and analyzed? The organization not to be subsidized is the organization designed simply to promote a particular point of view which is deemed "noncontroversial"--in the sense that the promoters are unwilling to countenance counterargument and hostile analysis. The spokesmen for such an organization are clearly entitled to their freedom of speech and assembly within the University and the use of University facilities. But their support by a disbursement of fees, the assessment of which rests upon a power of the Rector and Visitors implied from its educational purposes is another matter. In this connection, the Committee should point out the increasing challenge to accomplishment of the educational purpose of the Rector and Visitors by the tendency by many to "politicize" University activities. The development and flow of ideas, which is the ultimate object of subsidy of voluntary student activities, can be effectively suppressed if these activities become harnessed to narrow political and personal objectives. The Rector and Visitors may well harden the University's educational arteries if it subsidizes student activities indiscriminately.

When cases concerning the relationship of an expenditure to educational purposes are examined, it will be seen that only very close and obvious relationships thus far have been presented to the courts for consideration. The following expenditures of funds derived from student fees have been sustained: For the construction of student unions (Rheam v. Board of Regents, 161 Okl. 268, 18 P.2d 535 (1933); State ex rel. Veeder v. State Board of Education, 97 Mont. 121, 33 P.2d 516 (1934)); for improvement of a stadium (Moye v. Board of Trustees of University of S.C., 177 S.E.2d 137 (1970)); and for a power and heating plant (Application of Board of Regents of Univ. of Oklahoma, 200 Okl. 442, 195 P.2d 936 (1948)). Payments for the medical expenses of athletes have been sustained from a special gates receipts and athletic contracts fund. State ex rel. Board of Governors of West Virginia University v. Sims, 134 W.Va. 428, 59 S.E.2d 705 (1950). Although the expenditure apparently was from general revenue funds, payment of expenses for the ceremony of inaugurating a president was considered related to the educational purposes of a university. Board of Regents of University and State Colleges v. Frohmiller, 69 Ariz. 50, 208 P.2d 833 (1949). The educational relationships of the expenditures in these cases seem so clear as to require no argument.

Cases in which the relationship is remote have not been presented because it is only within recent years that extracurricular activities, subsidized from fees in all colleges and universities in which the fee system is used, have been extended into novel and controversial areas. It is important, nevertheless, to observe that the expenditures by state boards previously sustained have been tested in part by the relationship of the expenditure to the educational purposes of the institution.

The Gay Student Union may play a peripheral educational role by placing its members (or some of them) in contact with the general public as identified homosexuals. If this contact serves to dispel the response so often encountered when a family oriented social group encounters a homosexual, some educational value is achieved by it. If the GSU serves as an effective information center concerning the problems of homosexuals, this activity properly can be described as having educational value. But set off against these features are two matters which deprive the GSU, in the view of the Committee, of a sufficient claim as an educational activity.

First is the posture of the organization and its members that only society is "sick"; that their problems--emotional and psychological--are the fault of society; and that the homosexual life is eminently desirable--with the homosexual a normal but misunderstood and hapless victim of mindless social prejudice. A number of writers have observed that homosexuals of the more militant type are seldom given to detailed introspection, although they will quickly enough find the fault for their plight in society. This, certainly, is the general approach of the very articulate witnesses whose statements appear in the transcript. Certainly that is Mr. Cress's view of Dr. Kameny's position (BR-31). Mr. Cress denies that his group promotes social theory but states that it hopes to perpetuate the truth (BR-36). What seems to emerge is a basically "noncontroversial" stance in which opinions are to be set forth, regarded as truth, and counteranalysis or arguments rejected. The books purchased by the organization are to be nonpathologic--those of recent vintage which support the homosexual way of life. An educational process requires reciprocal analysis, reciprocal response and not simply agreement with a propounded postulate. Mr. Vogel has testified that the Union has no "party line" but what seems to emerge from the testimony by the GSU representatives is a posture as rigid as any emerging from the Politburo without the relief of self-criticism through dialectical materialism. The posture of the GSU is precisely that which would appear to deny it qualification as an educational foundation if this were sought under IRS Regulations.

Under these regulations an organization may be educational even though it advocates a particular position or viewpoint so long as it presents a sufficiently full and fair exposition of the facts as to permit an individual or the public to form an independent opinion or conclusion. An organization is not educational if its principal function is the mere presentation of unsupported opinion. The GSU apparently will not present a full and fair exposition of the facts--but a single opinion which the members sincerely think is true.

Leonard Doob in his "Public Opinion and Propaganda" (1948) 237-238, has defined education as "the imparting of knowledge or skill considered to be scientific or to have survival value in a society at a particular time". He defines propaganda as the reverse--"an attempt to affect the personalities and to control the behavior of individuals toward ends considered unscientific or of doubtful value in a society at a particular time".

One question is: "What is scientific". Certainly this embraces knowledge which is open to argument and analysis and is therefore subject to verification--and this does not appear to be the status of the basic postulates of GSU. Another question is: "Who makes the determination of value". In this instance it must necessarily be the officers having the statutory duty to control the disbursement of funds for the educational purpose.

Second, the basic organizational process, assuming the organization does attract additional members, is "disintegrative" in that the student who opts for a homosexual life tends to withdraw himself from the mainstream of the university community. The same observation has been made, from time to time, of social fraternities, but with respect to social fraternities, there is usually active participation in many facets of University life. The homosexual who allies himself with GSU is probably a marked man, who will be tolerated in a community in which tolerance is a major value, but who will not be fully accepted as a member of the community. With the GSU, the homosexual student may find a home--but it is a home that will tend to withhold him from the mainstream of University affairs.

For the reasons stated, the Committee is of the view that the educational values of the GSU are outbalanced by the educational obstacles the organization seems to pose. With the Board exercising an implied power to assess a mandatory fee and exercising an implied power to disburse this fee for student activities, the Committee recommends that the activity subsidized be directly related to the accomplishment of the educational purposes of the University. The GSU is not an organization sufficiently implementing these purposes.

C. Restrictions on the Power of The Rector and Visitors to Disburse Public Funds for Personal Uses

There is a close analogy between the power of a public corporation (the Rector and Visitors) to disburse funds raised by a mandatory fee and the power of a municipal corporation to disburse funds raised by taxes and mandatory assessments. Neither the public corporation nor the municipal corporation, for example, has the power to expend funds for social and other private purposes which might exist in a private business corporation incidental to the conduct of its business.

When the Rector and Board imposes a fee upon students for a special purpose, the money collected becomes public money. The funds are paid into the State Treasury pursuant to Virginia Code § 2.1-180. The funds are then withdrawn for the purpose for which the collection was made and disbursed by the procedure which the Board approved in 1970. The funds are public money although earmarked for a specific purpose. It has been held, for example, that when a public educational authority requires a fee, with the authority to collect and disburse the fee delegated to the student body, the governing body is dealing with public funds and must set guidelines for its disbursement. Stringer v. Gould, 64 Misc. 2d 89, 314 N.Y.S.2d 309 (1970). The mandatory imposition by the public body impresses the fund with its public character. In State ex rel. Board of Governors of West Virginia University v. Sims, 134 W.Va. 428, 59 S.E.2d 703 (1950), the Court applied a similar analysis to funds derived from admission fees and from athletic contracts and which were earmarked for athletic purposes.

Coupled with the public character of the fund is a trust aspect associated with custody after withdrawal from the Treasury and its disbursement to student activities. This trust may be viewed as an express trust of a charitable nature implied from the facts or it may be viewed as a constructive trust implied by law under the circumstances of mandatory collection of the fee.

Facts which are the basis of an express trust are the university environment in which the funds are collected, the direction of the Board to collect and disburse the fee for a stipulated or special purpose, the relatively limited group from which the fee is collected and reasonable expectations and demands of members of the group for use of the fund. There is, of course, a trust res or property in the fund collected. There is no necessary incompatibility between the public and trust character of the fund.

There would be, for example, no doubt that the Rector and Visitors would have to refund the balance of the fee unexpended if it determined to cease funding student activities during a particular year. Although the Rector and Visitors probably would not terminate funding within a particular fiscal year, the cases indicate that voluntary contributions would be refunded on a theory of resulting, constructive or express trust and the duty to refund would appear stronger when the fee or dues are mandatory. V Scott, Trusts §§ 430.3-430.4 (3d Ed. 1967). Also, the Committee believes a student could obtain an injunction to prevent a diversion of the fee to a purpose which clearly was not a student activity. From an administrative aspect, the trust is similar to the familiar charitable trust in which the trustee has power to designate, within a particular charitable class, the beneficiaries of principal or income. So long as that discretion is exercised reasonably (is not unreasonable, arbitrary or capricious) the exercise of discretion is likely to be upheld. If a constructive trust (remedial trust) theory were applied, there would be an analogy to the handling of special bank deposits or general deposits for a special purpose. A bank, although bailee, is held in constructive trust for a wrongful diversion of the funds on special deposit. V Scott, Trusts § 530 (3d Ed. 1967). The student is required to pay the fee for a special purpose as a condition to obtaining his education. The reciprocal equitable obligation of the Rector and Visitors, although not set forth by statute, seems exceptionally strong.

A trust obligation of the Rector and Visitors, implied in fact or in law, would not permit fine discriminations by an objecting student between activities to be subsidized. But it does appear that two reasonable expectations would be recognized by Courts in this situation. (1) That the fee supported activity be one to which all students have de facto access. (2) The subsidized group must perform a service to the entire university. The latter was recognized in the guidelines of the Student Activities Committee of the University in its report which received the tacit endorsement of the Board in 1959. (Minutes, 13 Jan. 1959, p. 23.)

The use of disbursements from the fund to subsidize narrow and basically private purposes would seem barred by the public character of the fund. The trust relationship, express or implied, imposes upon the subsidized organization an obligation of de facto as distinguished from de jure access and requires the organization to meet a test of general university benefit.

While the Gay Student Union may not in fact embark upon any political activity, as its spokesmen suggest, it is a fair judgment that emphasis in its activities will be principally social and that these social activities will be limited de facto to homosexuals and perhaps some females with a major interest in their situation. This has been the pattern for homosexual organizations at other major institutions. These organizations may begin with a militant stance, invite speakers and perform an informational role. Most serve simply as centers for homosexual life--a base at the University to which homosexuals can resort--as it was put in a question to Mr. Cress, and in which he concurred, to "commune" and reinforce "each others predisposition" (BR-61). The probability here, as the experience has shown the development to be elsewhere, is that the Union will be simply that--an organization that will permit homosexuals to meet and socialize. This is not to adopt Mr. Hurd's view that the Union will be a homosexual's "lonely hearts" club. But the Committee is of the view that social activity of an exclusive nature is likely to predominate in the activity of the Union. It should be observed also that these social events will be de facto exclusive, just as membership in the GSU is de facto, if not de jure, exclusive. The fact is that heterosexuals, unless female, do not and in fact cannot, participate in these events because of the pressure of opinion. Prejudice of a well entrenched and unyielding character delimits a de facto line determining membership in this organization and participation in its events. This prejudice and the reasons for it must be considered in an assessment of the probable breadth and character of the GSU role in the future at the University.

Having viewed the Union as an organization primarily social in nature with a membership de facto exclusive and with de facto limited participation in its social events, the Committee also observes that the general area of GSU interest is reinforcement of the individual sexual preferences of its members. The Committee is aware that Victorian reticence to discuss sexual problems has disappeared among most of the members of our society. With the bars of censorship removed by the Supreme Court, raw sex in magazines, movies and in other media has become common household fare. But the Committee does consider that the cultivation and implementation of one's sexual preferences is a matter of private concern and should be privately financed if financing becomes necessary.

The public character of the money proposed for disbursement seems to the Committee to preclude the disbursement to support social activity and matters of such a private character that appear to loom large in the scale of values of GSU members.

The trust element of the mandatory fee would preclude the use of funds for an organization which is de facto exclusive. Despite a remark in their first newspaper, spokesmen for the GSU insist anyone can be admitted as a member. The question then is whether the Committee should take note of the deeply rooted prejudice and demand for social conformity which serves as a de facto limit to participation in GSU and its activities. As one writer has commented (Gross, "Strangers in Our Midst" (1962) 29):

The public has been conditioned to see the homosexual only in a particular way. It sees what it has been taught to see--that and nothing more. Since he is not as other men are, it is assumed that the homosexual must be in some way evil. This, in general, is the attitude of the unthinking person. It represents the elements of opinion in the Anglo-Saxon world in which the homosexual must live and move.

The Committee would be reluctant to take the position that deeply ingrained prejudice should be considered in describing a de facto membership limitation in an organization of Female, Black or Chicano students. One has no choice of race or sex. But as noted in the finding of facts by the Committee, the Committee considers that homosexuality, in the instance of a great majority of homosexuals, is volitional. There is evidence that psychotherapy can alter the homosexual pattern toward heterosexuality; although militant homosexuals either deny this or deny the desirability of altering the homosexual pattern.

If the homosexual chooses his way of life, organizes to promote his practices, and does so in obvious defiance of strong social conventions, his rights as a dissenter should be protected. At the same time the homosexual should be held to have set the stage for the conflict that places a de facto limit to membership in his organization.

As to the second aspect arising from the trust element associated with the fee--the benefit to the University from the subsidized activity--the Committee refers to its statement in subdivision "A" concerning the insufficient educational value in the work of the GSU. There may be other values. The mere existence, for example, of an organization to be tolerated despite contrary personal inclinations of a member of the public has salutary effect upon that member when he reexamines his personal value structure.

VII. Construction of Guidelines

The guidelines of the Board for disbursement of the student activity fee revenues, to the extent relevant here, are as follows:

All student organizations shall be eligible to receive funds from the student activities fee, except that no monies shall be given for religious or political activities or for honoraria or social entertainment.

Religious activities are not defined in the guidelines but a detailed definition of political activity was adopted by the Board by incorporating a resolution of the Student Activities Committee, as follows:

Political activities are, in general, those normally engaged in by political parties or special interest groups, such as electioneering, lobbying, and propagandizing. Electioneering shall include any activity connected with the electoral process in a partisan manner. Lobbying shall include any activity whose purpose is to influence governmental action or policy. Propagandizing shall include any activity whose purpose is to procure, or prevent, the acceptance of any social, economic or political theory as an operating principle of polity; propagandizing shall not be interpreted to include engaging in non-partisan analyses, study, or research or making those results available to the public.

(Minutes, 5 June 1970 (pp. 154-155). A literal interpretation of these guidelines leads to the conclusion that all student organizations are entitled to money so long as a restriction is placed upon their religious, political and social activities and upon their payment of honoraria and expenses for parties. There are a number of difficulties in construing the guidelines in this literal fashion.

First, if subsidies to an organization are conditioned in special ways, the University is open to the challenge that it is attempting to manipulate the conduct of the organization through use of the funds in an unconstitutional fashion. From an administrative point of view, standards such as these will not work unless they are applied on an all or nothing basis. The Internal Revenue Service has learned this from hard experience in developing policies for tax exemption for educational and other organizations. If a substantial part of the organization's work involves a tainted activity, the exemption of the entire organization is lost.

Second, it should not be assumed that effective controls can be exercised to ensure the exclusion of part of an organization's activities or to ensure that monies granted are actually used for approved activities.

The Committee is not taking the position that the Board did not mean what it said. It is simply taking the position that these guidelines should be read in context. Any written or spoken word is ambiguous--the meaning can be ascertained only when the writer or speaker and communications target are known and the context of the communication is considered. Here, to interpret these guidelines, we should consider how they were developed, why they took this particular form, what the Board was empowered to do, and the changing conditions under which the guidelines are administered.

To be explicit, the Committee is saying that guidelines can be one thing at a particular time and later, when the conditions under which the guidelines are being administered are changed, the guidelines can be construed differently. This is true of a deed, contract, will, statute, constitution or any other writing. Roughly the same techniques of construction can be applied to all.

Background of Guidelines--Changing Conditions

While the Board clearly has the responsibility for providing guidelines for handling the activity fund, the guidelines have been developed piecemeal. The Student Activities Committee of the University has contributed substantially to the guidelines now prescribed by the Board. The Student Council, since its direct administrative role was approved by the Board in 1968, has established guidelines of its own in addition to those prescribed by the Board and those applied by the Student Activities Committee.

One reason for this piecemeal development, apart from alterations in the administrative structure for handling the fund, has been the enormous expansion of student organizations of an extracurricular nature. This may be due to more generous financing from activity fees than in earlier days. Perhaps the reason is a greater student involvement in affairs once considered alien to a University.

In any event, from eight organizations being funded from the activity fee in 1958-59 we have moved to ninety-three in 1972-1973. As of 24 January 1973, there were one hundred and fourteen recognized organizations. Determining which organizations should and should not be funded has resulted in a gradual delineation of guidelines, in part by trial and error. The process of developing guidelines has been complicated by successive generations of students directly involved in their formulation, each generation having its own views concerning the activities to be financed and the organizations engaged in these activities which should receive the money. Similar complications have resulted from changing membership of the Student Activities Committee and the Student Affairs and Athletics Committee of the Board.

The guidelines now prescribed by the Board in its Resolution of 1970 are for the most part products of the thought of administrative committee members concerned directly with allocation of the funds. Examining the allocations made to organizations in the 1972-73 session, it will be seen that only those organizations recognized or which were to be recognized were to receive funds. All organizations were not eligible. No organization engaged in extensive political activity, or in religious activity received funds. It is not possible from the data before the Committee to determine which organizations applied and were rejected. "Action Ministries" and "St. Thomas Hall" had no allocation. A host of organizations of a political character received no allocation (American Friends of Free Palestine; Charlottesville-Albemarle Citizens for McGovern; Charlottesville Resistance; First Yearmen for Better Government; Howell for Governor Committee; National Caucus of Labor Committees; Northern Virginia Student Vote; Union Democracy Project; Young Americans for Freedom; The Young Republicans Club; Committee to Send Letters to Congress; Quebec-Labrador Volunteers for Virginia (possibly political?) and Virginia Field Staff of National Committee for U.S.-China Relations). Groups which seemed predominantly social-- Beaux Arts Ball Committee; The Circle K Club of Virginia; The Community Dance Committee; the Restoration Ball Committee; the Seven Sour Sippers Society and the Trident Society received nothing-nor did two fraternities (apparently professional). Professional fraternities in law and other schools and social fraternities are not funded from the activity fund. If the Committee is to judge from the funds actually disbursed, those charged with the disbursement are, for the most part, doing precisely what the Board has in mind.

If the organization engages in some religious activity it is impossible, practically, to divorce its religious activities from its other activities. The organization must stand or fall as a unit--and all of them seem to have fallen. This is proper. Funds devoted to a religious organization from public sources would violate the Virginia Constitution and the establishment Clause of the First Amendment to the Federal Constitution as applied to the states through the due process clause of the Fourteenth Amendment. If an organization engages in substantial religious "activity" it is entirely religious for the purpose of the establishment clause.

Organizations with political activity of a substantial nature were also given short shrift so far as allocations were concerned. The main difficulty here is Federal Internal Revenue Code § 501(c)(3), under which the University of Virginia is now exempt from federal taxation and upon which donors to it rely for exemption for their inter vivos and testamentary gifts. The Code states, after describing the exempted educational institution:

No substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office.

The regulations pursuant to this section establish both "organizational" and "operational" tests for exemption. The Gay Student Union clearly would not qualify because its constitution does not limit it to an exempt purpose and it might well be regarded as an "action" organization and fail to meet the operational requirements. But the important point is that it is the continuing exemption of the University which counts. Professor Bork, who will be the new United States Solicitor General, has stated, in commenting upon the tax ramifications of political activity by universities, (Bork and Others, "Political Activities of Colleges and Universities" (1970) 18):

A serious problem may be that of the university's involvement with groups that are engaging in direct lobbying of legislators or addressing the public in an effort to influence legislation. This problem may arise frequently because of the intense interest of faculty and students in political issues. Again, individual or group action not endorsed or supported by the university poses no threat to the university's tax exempt status. In determining "support," some realistic distinctions are necessary. Some uses of university funds and facilities can hardly be said to constitute support of the activity without infringing the proper area of individual freedom. Thus, the fact that an attempt to influence legislation is made by a faculty member on salary or a student on scholarship may not properly be held to implicate the university. Similarly, the use of some types of university facilities is inevitable in such cases, if only because many students and faculty members live on campus and customarily use certain facilities, such as the library, for a variety of purposes. The use of other types of facilities, such as computers, mailing lists, secretarial service, and the like for work not directly connected with education is not customary or inevitable and would raise serious problems.

It seems clear, of course, cash payments to groups attempting to influence legislation, or giving them the use of university facilities without compensation or with only token compensation would raise a serious danger ***.

The Internal Revenue Service has recently issued liberal rulings stemming from university association with groups engaged in political activity or attempting to influence legislation. Thus, students who participated in political campaigns as part of a political science course would not cost the university its exempt status. Providing facilities and an adviser to a college newspaper for publishing political opinions and advocating changes in legislation also would not result in a denial of exemption.

The danger is not in subsidizing a single organization having a substantial pattern of political activity but in subsidizing a substantial number of these as a settled policy. When political "activity" is read in the tax context, which led in great part to the inclusion of this exception, activity must be taken to mean substantial activity which will disqualify the organization as a unit. Funds allocated to an organization engaged in substantial activity but restricted to non-political purposes would simply free other assets for political use.

Having construed religious activity and political activity as disqualifying the organization from subsidy under the guidelines, how then should the words "social entertainment" be construed? Difficulty in construing these words may have been at the root of the difficulty in the allocation now before the Committee.

The term "entertainment" appears to have worked its way into the guidelines in a letter by Mr. Shea to the President (Mr. Darden) in 1956. The Student Activities Committee had been created in that year and Mr. Shea, with the approval of Dean Runk, suggested that the publication fee of $5.00 should be placed under the new Committee to which the Cavalier Daily staff would submit a budget of salaries and expenditures. The letter stated "the committee could thus disapprove expensive parties" (Minutes, 14 April 1956, p. 11). A restriction upon entertainment then appeared in the guidelines of the Committee and surfaced in the Board Resolution of 1968 in which Student Council was brought formally into the disbursement process. This referred to a review of the budgets of all "other organizations" (the Cavalier Daily being excluded) by Student Council; but Council was enjoined not to approve budgets in opposition to stated University policies (e.g., religious or discriminatory organizations), or for politically oriented organizations or for entertainment. When the word appeared in the 1970 Resolution, it was linked with "social" as "social entertainment".

There can, of course, be entertainment other than social; and this other "entertainment" seemingly no longer was excluded. A musical event or series might well be described as entertainment. But no allocations for musical events were made in 1972-73. The interpretation continued as an exclusion of "entertainment" although the word "social" had been annexed.

The present activity fee was separated from the comprehensive fee in 1970 at the time the current Board guidelines were established. There is no indication either before or after these guidelines were prescribed that allocations were made to organizations extensively engaged in social activities. Examples were given in the 1968 Board guidelines of religious or discriminatory organizations as excluded but these categories apparently were not comprehensive. No support was being given to social fraternities and professional fraternities engaged principally in social activity.

The powers of the Board, analyzed in detail in Part VI of this Report should shed light upon this construction. Public funds were involved and should not be used for purposes basically private. Social occasions, furthermore, usually were exclusive and members of the student body lacked equal access. The educational relationship of the social function in many instances would not be clear.

While there appears to have been no analysis of the scope of its power to disburse these fees--with the exception of an opinion on bail bonds--the Board appears never to have contemplated a social activity as an activity to be subsidized.

The exclusion of social activities can be based upon an interpretation of the Board's power or it can be based upon the guidelines as interpreted in the light of the necessary propriety in handling public funds. By either view, social activities were not funded.

There would, of course, never have been a basis for distinguishing between social events that were entertaining and those that were not--this would be a subjective matter which no one could ascertain until the event was held. Quite probably, the draftsmen of the guidelines regarded all social events as entertainment. To "social", the word "entertainment" may or may not be redundant--but an ambiguity exists which can be remedied only by construing the word in context as the Board intended--which is "social activity".

By continuing to construe the word as "entertainment", which no longer appeared in this solitary fashion in the 1970 guidelines, an allocation could be made to an organization with principally social functions by limiting the purpose of the allocation to purposes non-social in nature. But as with religious activity and political activity, this would not do. If the substantial activity of the organization is social, that should disqualify it. All exclusions should be construed similarly.

VIII. Legal Implications of a Constitutional Nature

(These matters presented to Rector and Visitors but omitted from official record of Committee recommendation.)

The Board in this case has heard the appeal through its Student Affairs and Athletics Committee sitting with the President. The Committee respectfully recommends that whether the Board concurs with its recommendation in this Report or not, that the Board set forth its decision with the reasons supporting it and stating the standards applied.