A&M and homosexuality
The shadow of freedom (1976-1984)
Published: Tuesday, October 25, 2011
Updated: Wednesday, July 25, 2012 22:07
Present ambiguities aside, TPR's annual publication was not our coming out as an unfriendly university — this was a violent exhibition circa 1976, five years before TPR's founding.
On one spring night, affiliates of Gay Student Services (GSS), a newly formed gay support group, were assaulted by students with knives and forced to remove days' worth of posted fliers. Priorly, the organization had forgone University recognition, fearing repercussions from A&M's conservative attendees.
While the incident underlined the case for anonymity, safety concerns mandated the organization receive some form of University approval. Basic privileges such as meeting on campus and the use of student media were now necessities, but "full recognition" — which entailed access to both school funds and the Student Programs Office — would draw unwanted notice.
Their minds made, the students approached then Vice President for Student Affairs, Dr. John Koldus, with a middle ground tailored to their needs: "limited recognition."
Hearing their proposal, Koldus informed the students there was no such "limited recognition" and referred them to his superior, Dr. Carolyn Adair, who could guide them through common pitfalls of the application process. Then, in a sizeable act of callousness – and, for that matter, inconsistency – Koldus stated the application would be denied outright. Despite the seeming contradiction, the students contacted Dr. Adair.
Upon the application's submission, Dr. Koldus requested the product be forwarded to him directly. De rigueur, he claimed, when submissions presented "special problems." Predictably, numerous and unnecessary delays ensued.
The application was initially sent to University President Jack Williams. Mr. Williams took three weeks to respond, finally issuing a memo stating A&M would not recognize the GSS "until and unless [they were] ordered by a higher authority to do so." On November 29, after two additional meetings with the students, Dr. Koldus officially denied the request.
That February — ten months after the threats at knife-point — three students filed the cause célèbre that would go unresolved for nearly a decade: Gay Student Services v. Texas A&M University. The denial of their application, they alleged, had infringed upon their First Amendment rights.
A&M's defense hinged on two points: First, because "homosexual conduct" was illegal in Texas, it was "inappropriate" to support entities likely to "incite, promote and result" in law-breaking activities. Second, that the "GSS lacked the experience to educate the public or provide referral services."
The 5th Circuit of Appeals ruled for the students, citing three previous cases:
In the first, Mississippi Civil Liberties Union v. University of South Mississippi (1971), it was determined that students who attend public universities maintain the full force of their constitutional rights.
The second, Burnside v. Byars (1966), was more detailed, but had an out: "students' rights to freedom of expression could not be abridged absent material and substantial interference with discipline and order in the school." The intended services of the GSS would cause neither.
Third, and most important, was Healy v. James (1972). As it pertains to Koldus' claim — that the GSS would "incite, promote and result" in homosexual activity — the 1972 ruling made clear: "When the restriction upon student expression takes the form of an attempt to predict in advance the content and consequences of that expression, it is tantamount to a prior restraint and carries a heavy presumption against its constitutionality."
"Freedom to differ," the court explained, "is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."
The remaining defense — that the "GSS lacked the experience to educate the public or provide referral services" — was thought immaterial: "The state and its agents are forbidden from usurping the students' right to choose… the heart of the freedom guaranteed by our Constitution is the freedom to choose — even if that choice does not accord with the state's view as to which choice is superior."
"TAMU's refusal to recognize GSS as an on-campus student organization," the court concluded, "impermissibly denied [the applicants] their First Amendment rights."
A&M's defense, though, belied their intentions.
First, a TAMU Board of Regents meeting read as follows:
"So—called ‘gay' activities run diabolically counter to the traditions and standards of Texas A&M University, and the Board of Regents is determined to defend the suit filed against it by three students seeking ‘gay' recognition and, if necessary, to proceed in every legal way to prohibit any group with such goals from organizing or operating on this or any other campus for which this Board is responsible."
Second, at trial TAMU had argued that one of these "traditions and standards" was the exclusion of on campus social clubs. Such organizations, it alleged, impeded the University's cohesive nature. Frivolous as it appears, they had acted on this belief before: In October, 1977 the application of Sigma Phi Epsilon, a national fraternity, had been denied on the same grounds.