"For the purpose of monetary damages, as an administrative agency, in essence an arm of the State, the Board [of Regents of the University] enjoys the privilege of Eleventh Amendment ... immunity granted to the State"
How later courts described this case
- "For the purpose of monetary damages, as an administrative agency, in essence an arm of the State, the Board [of Regents of the University] enjoys the privilege of Eleventh Amendment ... immunity granted to the State"
- “For the purpose of monetary damages, as an administrative agency, in essence an arm of the State, the Board enjoys the privilege of Eleventh Amendment sovereign immunity granted to the State.”
Written by the judges who cited it.
The opinion
BARNES, Vice Chief Justice,
dissenting.
I am not convinced that the United States Supreme Court would find the action of the University of Oklahoma in refusing to recognize The Gay Activists Alliance vio-lative of the United States Constitution. In his dissenting opinion to the denial of cer-tiorari in Ratchford, etc., et al., petitioners, v. Gay Lib et al., 434 U.S. 1080 , 98 S.Ct. 1276 , 55 L.Ed.2d 789 , reh. den. 435 U.S. 981 , 98 S.Ct. 1632 , 56 L.Ed.2d 74 , Justice Rehnquist, with whom Mr. Justice Black joined, dissenting said:
"... the issue posed in this case is the extent to which a self-governing democracy, having made certain acts criminal, may prevent or discourage individuals from engaging in speech or conduct which encourages others to violate those laws....
“But lurking behind this procedural question (whether or not to grant certio-rari) is one which goes to the heart of the inevitable clash between the authority of a State to prevent the subversion of the lawful rules of conduct which it has enacted pursuant to its police power and the right of individuals under the First and Fourteenth Amendments who disagree with various of those rules to urge that they be changed through democratic processes. The University in this case did not ban the discussion in the classroom, or out of it, of the wisdom of repealing sodomy statutes. The State did not proscribe membership in organizations devoted to advancing ‘gay liberation.’ The University merely refused to recognize an organization whose activities were found to be likely to incite a violation of a valid state criminal statute. While respondents disavow any intent to advocate present violations of state law, the organization intends to engage in far more than political discussion. Among respondent Gay Lib’s asserted purposes are the following:
“ ‘3. Gay Lib wants to provide information to the vast majority of those who really don’t know what homosexuality or bi-sexual behavior really is. Too much of the same prejudice is now directed at gay people just as it is directed at ethnic minorities.
“ ‘4. Gay Lib does not seek to proselytize, convert, or recruit. On the other hand, people who have already established a pattern of homosexuality when they enter college must adjust to this fact.
“ ‘5. Gay Lib hopes to help the gay community to rid itself of its subconscious burden of guilt. Society imprints this self-image on homosexuals and makes adjustment with the straight world more difficult.’ ”
As pointed out by Appellees, the aim and intent of The Gay Activists Alliance in this case are practically identical to the above stated purposes of the Gay Lib in the Ratchford case.
Justice Rehnquist in the Ratchford case further states that:
“. . . Here the question is not whether Gay Lib as an organization will abide by university regulations. Nor is it really whether Gay Lib will persuasively advo *1127 cate violations of the sodomy statute. Instead, the question is whether a university can deny recognition to an organization the activities of which expert psychologists testify will in and of themselves lead directly to violations of a con-cededly valid state criminal law.
“As our eases establish from Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247 , 63 L.Ed. 470 (1919), in which Mr. Justice Holmes, speaking for a unanimous Court, held that the Government has a right to criminally punish words which are ‘used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,’ to Brandenburg v. Ohio, 395 U.S. 444 , 89 S.Ct. 1827 , 23 L.Ed.2d 430 , 48 Ohio Ops.2d 320 (1969), some speech that has a propensity to induce action prohibited by criminal laws may itself be prohibited. A fortiori, speech and conduct combined which have that effect may surely be placed off limits of a university campus without doing violence to the First or Fourteenth Amendments.” I therefore respectfully dissent.