Gay and Lesbian Students Association v. Gohn

Gay and Lesbian Students Association v. Gohn was a 1988 decision by the U.S. Court of Appeals for the Eighth Circuit stemming from the 1983 refusal of the Student Senate of the University of Arkansas (UA) in Fayetteville (Washington County) to fund the Gay and Lesbian Students Association (GLSA). The GLSA asserted that the funding had been denied because of the content of the group’s message, an action they maintained was a violation of the First Amendment.

The central issues in the case revolved around the way the Student Senate of UA, a publicly funded institution, appropriated money to student organizations. The disbursement of the funds—resources that came from tuition, state tax money, and general fees paid by students—was subject to administrative approval but was generally under the control of the students.

The GLSA had been a registered student organization on the university’s campus since 1983, a status that rendered it eligible to apply for funds and other benefits, such as being able to use university facilities for projects and meetings, as well as being included in university publications. The group’s stated purpose, both when it registered and when it first applied for funds, was, as the Court later wrote, “to educate people about homosexuality and provide a support group for homosexuals.”

The actual controversy from which the lawsuit arose had its origins in the January 1983 refusal of the Student Senate to appropriate the funds requested by the GLSA. That refusal was upheld on appeal by Lyle Gohn, the vice chancellor for student services. The following year, the GLSA tried again, and this time it was granted funds, although the request was apparently part of a package that included requests from multiple organizations. In fact, it was not awarded the funds, even as part of the group grant, until after efforts, including a debate that was characterized as “emotional,” “horrible,” and “vulgar,” were made to separate out the GLSA request.

That success was a one-time result and in fact, in the spring of 1985, in an apparent effort to end the ongoing controversy and funding requests, the Student Senate passed a bill that would have prohibited any future funding of the GLSA, but the proposal was vetoed by the Student Government president. In the aftermath, the Senate again refused to approve funds for the GLSA—making it the only group that requested funds but was not granted them—with Vice Chancellor Gohn again upholding the Senate action. This refusal had come after Chancellor Willard Gatewood, having learned of plans to hold a workshop on discrimination (including homophobia), said that no state money would be used to support such workshops. In response, the GLSA filed suit claiming that the university “curtailed its fundamental rights of free association and free speech and violated the Equal Protection Clause.” The GLSA asserted that it had been denied funds because of the content of its speech.

Before getting to that issue, the U.S. District Court had to address two preliminary issues: whether the case was moot, it having been decided and the cast of characters having changed, and whether there was state action involved. First, the court determined that it was a live case, one capable of being repeated on an annual basis, and thus not moot. Second, the Court ruled that since the administration of the state-financed university had the final say in the Senate’s funding decisions, there was state action. The U.S. Court of Appeals upheld both of these rulings.

But as to the question of whether the GLSA had been denied funds because of the content of its speech, the U.S. District Court sided with the university. However, the appeals court overturned that determination, noting that “the record is replete with evidence that the Senate’s action was based on viewpoint discrimination.” The appeals court had no trouble with the district court’s “enunciation of…two basic premises: that a group has no right to funding, but when funds are available, they must be distributed in a viewpoint-neutral manner.” However, it determined that the district court’s application of the principles to the facts was faulty. It said that the trial court had overemphasized that the GLSA had no right to the funding and, further, that the trial court had “overstated the role legitimate discretion played in the Senate’s funding decision.” The U.S. Court of Appeals noted that “the GLSA met all objective criteria for funding and received the Finance Committee’s recommendation, yet was denied funds twice.”

The judges noted that testimony made clear that there was political pressure to oppose funding groups that were seen as supporting gay rights and that some of the student senators were openly vocal in their opposition to the group’s views and thus unwilling to fund them. But, given the surplus of resources, as well as the disbursal of funds to groups that were in fact unqualified, the reason for refusal and the fact that it was a violation of the group’s First Amendment right became clear. The U.S. Court of Appeals closed its opinion, declaring that the “record leaves no reasonable doubt that funds were denied because of disagreement with the GLSA’s speech. A finding the other way would be clearly erroneous.”

In reversing the lower court’s ruling, the appeals court noted that while it was true that the GLSA had no right to the funds, it could not be denied them “for a reason which violates its First Amendment rights.” The definitive ruling, one that made clear that neither the organization nor the students could be discriminated against based on the content of their message, was, as Professor Judy Jarvis noted in a subsequent article surveying the changing legal landscape, another step forward in the campaign for equality for LGTBQ+ students in higher education.

For additional information:
Gay and Lesbian Students Ass’n v. Gohn, 656 F. Supp 1045 (W.D. Ark. 1987).

Gay and Lesbian Students Association v. Gohn, 850 F. 2d 361 (1988).

Heintzman, Caroline M. “Gay and Lesbian Student Association v. Gohn: Content Discrimination in Funding.” In First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays, edited by Stephen A. Smith. Fayetteville: University of Arkansas Press, 2016.

Jarvis, Judy F. “The Changing Landscape for LGTBQIA Students in Higher Education: Title IX, Religious Freedom of Expression, and the Special Relationship Doctrine.” College Student Affairs Journal 41, no. 1 (2023).

William H. Pruden III
Ravenscroft School