 | Board of Visitors minutes February 2, 1973 |  |
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The only bearings Virginia Code § 18.1-212 (the sodomy statute), or the common law "buggery" felony, which the statute superseded, might have in this case is that these laws express a public consensus (which at one time certainly existed concerning homosexual physical acts) and might also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?
| Board of Visitors minutes February 2, 1973 | |