The issue before us is whether officials of a state university may lawfully withhold formal recognition of a student organization, comprised largely of homosexuals, whose basic purpose is to provide a forum for discussion about homosexuality. Gay Lib, an organization at the University of Missouri, and four of its members appeal from the denial of their request for injunctive relief by the United States District Court for the Western District of Missouri, the Honorable Elmo T. Hunter, presiding.1 In denying the 42 U.S.C. § 1983 claim the district court sustained the University administration's refusal to recognize Gay Lib as a campus organization.2 The court conceded that the question was a close one, but ruled that the school officials justified their action on the ground that recognition of Gay Lib would probably result in the commission of felonious acts of sodomy in violation of Missouri law.3 The district court also rejected plaintiffs' claim that nonrecognition denied them equal protection of the laws.

On appeal, plaintiffs contend: (1) that the district court erred in holding that plaintiffs' First Amendment rights were not impermissibly infringed; and (2) that the action of the defendants deprived plaintiffs of equal protection of the law. We reverse.

Factual Background.

Formal recognition of a student organization by the University of Missouri entitles the group to use campus facilities for meetings and to apply for financial support from student activities funds. Written University policies with respect to recognition of campus groups provide that:

Groups are recognized on the basis of their own statements as to name, aims, nature and program. $ $ $

Recognition of an organization by the Committee does not constitute approval or endorsement of the organization's aims and activities * *.

Gay Lib began its efforts to gain formal recognition in early 1971. In accordance with established University procedures, the group submitted a petition for recognition to the Missouri Students Association (MSA). A statement of purposes accompanying the petition set forth the proposed organization's aims as follows:

(a) To provide a dialogue between the homosexual and heterosexual members of the university community.

(b) To dispel the lack of information and develop an understanding of the homosexual at the University of Missouri.

(c) To alleviate the unnecessary burden of shame felt by the local homosexual population.

(d) To help education, the community and the homosexual to understand the social roles that the homosexual now plays in the community.

(e) To work closely with established university and community groups for a broader sharing of knowledge and information.

Both the MSA Rules Committee and the Senate approved Gay Lib's petition. The matter was then referred to the Committee on Student Organizations, Government and Activities (SOGA), which was comprised of students and faculty. While the matter was pending before SOGA, Gay Lib submitted a revised, more detailed statement of purposes.4

In December, 1971, SOGA voted to recommend recognition of Gay Lib. The recommendation, however, was vetoed by Edwin Hutchins, then Dean of Student Affairs. Hutchins based his veto on "a concern for the impact of recognition on the general relationship of the University to the public at large."5

Gay Lib appealed the nonrecognition decision to successive levels of the University hierarchy, ending with the President of the University. Each level sustained Hutchins' ruling.6 Thereafter, Gay Lib appealed the decision to the University's Board of Curators. The Board consolidated the appeal with a related matter arising out of the University of Missouri at Kansas City, and appointed a hearing officer, Cullen Coil, a Jefferson City attorney and former Commissioner of the Missouri Supreme Court, to develop the facts. At the hearings substantial lay and expert testimony was adduced. Following the hearings, Coil recommended that the University deny formal recognition to the organization.7 Subsequently, the Board denied Gay Lib's appeal, adopting the following resolution:

Be it hereby resolved that the Board of Curators of the University of Missouri concurs with and hereby adopts the Hearing Officer's Recommended Findings of Fact made by the Honorable Cullen Coil and further makes the following specific findings of fact:

1. The Gay Lib movement as exemplified by the Gay Lib Organization at UMC and the Gay People's Union at UMKC is premised upon homosexuality being normal behavior, contrary to the further findings herein.

2. A homosexual is one who seeks to satisfy his or her sexual desires by practicing some or all of the following: fellatio, cunnilingus, masturbation, anal eroticism and perhaps in other ways.

3. Homosexuality is a compulsive type of behavior.

4. There are potential or latent homosexuals, i. e. persons who come into adolescence or young adulthood unaware that they have homosexual tendencies, but who have fears of sexual relations with a member of the opposite sex.

5. What happens to a latent or potential homosexual from the standpoint of his environment can cause him to become or not to become a homosexual.

6. That homosexuality is an illness and should and can be treated as such and is clearly abnormal behavior.

7. Certain homosexual practices violate provisions of Section 563.230 of the Revised Statutes of Missouri.

8. That formal recognition by the University of either or both the proposed Gay Lib and Gay People's Union will:

(The Board of Curators here adopted verbatim Mr. Coil's above-cited conclusions as to the effect of formal recognition.)

Plaintiffs filed this civil rights action to compel the University to formally recognize Gay Lib, alleging that nonrecognition infringed their First Amendment freedom of association and denied them equal protection. By stipulation of the parties, the transcript of the hearings held at the direction of the Board of Curators, as well as the exhibits introduced at those proceedings, were admitted into evidence. The district court also received depositions of three medical doctors taken by the parties. No other evidence was presented.

First Amendment.

Although the district court denied plaintiffs relief, Judge Hunter, recognizing Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972), stated:

(T)he University, acting here as an instrumentality of the State, has no right to restrict speech or association "simply because it finds the views expressed to be abhorrent."

416 F.Supp. at 1370, quoting Healy, supra 408 U.S. at 187, 92 S. Ct. 2338.8

Since the Supreme Court's decision in Healy, the First and Fourth Circuits have sustained the rights of groups similar to Gay Lib to sponsor social functions involving the use of university facilities, Gay Students Org. of Univ. of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974); and to register as a student organization. Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976). The analytical discussion offered by these two courts strongly supports recognition of Gay Lib here.9

Notwithstanding these decisions, defendants assert that the record in this case contains expert medical testimony which provides a legal justification for withholding formal recognition from Gay Lib. They argue, and the district court found, that recognition of Gay Lib would likely result in imminent violations of Missouri sodomy laws.10

The district court placed reliance on the testimony of two psychiatrists, Dr. Harold Voth and Dr. Charles Socarides. Dr. Voth testified that formal recognition would tend to "perpetuate" or "expand" homosexual behavior. However, on cross-examination, Dr. Voth further testified that his conclusion was "an inference," and "(t)here is no way in the world for me or anyone else to know." Dr. Socarides stated that he believed "that wherever you have a convocation of homosexuals, that you are going to have increased homosexual activities which, of course includes sodomy." He concluded that "any gathering would certainly promote such sexual contact."

Also relevant to the district court's determination was the medical opinion proffered by defendants' experts that homosexual behavior is compulsive. However, as demonstrated by the substantial body of professional medical opinion conflicting with defendants' case, it must be acknowledged that there is no scientific certitude to the opinions offered.11

The district court noted testimony from Dr. Robert Kolodny, a medical doctor with some training in psychiatry. Dr. Kolodny testified that he believed recognition would not have "any discernible effect upon the sexual behavior of the student population." He based his conclusion on his clinical knowledge of human sexual behavior and "from actual knowledge of what, in fact has occurred on several campuses where homosexual groups have been allowed to acquire office space, hold social functions, and sponsor university activities."

Defendants urge that their experts are more worthy of belief because of their outstanding professional credentials. We need not pause here since defendants' evidence turns solely on Dr. Voth's conclusory "inference" and Dr. Socarides' "belief," for which no historical or empirical basis is disclosed.

Even accepting the opinions of defendants' experts at face value, we find it insufficient to justify a governmental prior restraint on the right of a group of students to associate for the purposes avowed in their statement and revised statement of purposes.12 While it is difficult to articulate generalized standards as to the quantum and quality of proof necessary to justify the abridgment of First Amendment rights,13 the many Supreme Court cases dealing with prior restraints14 and other First Amendment issues15 make clear that the restriction of First Amendment rights in the present context may be justified only by a far greater showing of a likelihood of imminent lawless action than that presented here.

Mr. Justice Harlan, in delivering the opinion of the Supreme Court in NAACP v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), emphasized the importance of freedom to engage in association:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. (Citations omitted.) It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. (Citations omitted.) Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.

357 U.S. at 460-61, 78 S. Ct. at 1171.

In the present case, none of the purposes or aims of Gay Lib, at least in this record, evidences advocacy of present violations of state law16 or of university rules or regulations, and the district court made no finding of such advocacy. The district court further made no finding that Gay Lib would "infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education." Healy v. James, supra, 408 U.S. at 189, 92 S. Ct. at 2350. So far as the avowed purposes and aims of this association are concerned, in the words of the Fourth Circuit:

(I)t is, at most, a "pro-homosexual" political organization advocating a liberalization of legal restrictions against the practice of homosexuality and one seeking, by the educational and informational process, to generate understanding and acceptance of individuals whose sexual orientation is wholly or partly homosexual.

Gay Alliance of Students v. Matthews, supra, at 164.

It is difficult to singularly ascribe evil connotations to the group simply because they are homosexuals. See Gay Alliance of Students v. Matthews, supra; Gay Students Org. of Univ. of New Hampshire v. Bonner, supra. An interesting fact is that not all members of the group are homosexuals.17 Furthermore, this approach blurs the constitutional line between mere advocacy and advocacy directed to inciting or producing imminent lawless action. Finally, such an approach smacks of penalizing persons for their status rather than their conduct, which is constitutionally impermissible. See Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).

We, of course, acknowledge the statement in Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), repeated in Healy v. James, supra, 408 U.S. at 180, 92 S. Ct. 2338, that the factual circumstances must be evaluated in light of the "special characteristics" of the school environment. In this sense, it is clear that a university has residual power "to assure that the traditional academic atmosphere is safeguarded," and to promulgate reasonable rules and regulations. Healy, supra, 408 U.S. at 194 n.24, 92 S. Ct. at 2352. It may be, as Mr. Justice Rehnquist observed in his concurring opinion in Healy, that the "school administrator may impose upon . . . students reasonable regulations that would be impermissible if imposed by the government upon all citizens." 408 U.S. at 203, 92 S.Ct. at 2357. We note, however, that the interest asserted by defendants in justification for the abridgement of plaintiffs' First Amendment rights is not peculiar to the academic environment. Moreover, it is also axiomatic that the First Amendment must flourish as much in the academic setting as anywhere else. See Papish v. University of Missouri Curators, 410 U.S. 667, 671, 93 S. Ct. 1197, 35 L. Ed. 2d 618 (1973); Shelton v. Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). To invoke censorship in an academic environment is hardly the recognition of a healthy democratic society.

Attorneys' Fees.

Plaintiffs also seek an award of attorneys' fees, to be assessed against the defendants as costs, pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, Pub.L.No.94-559 (Oct. 19, 1976), 90 Stat. 2641, 42 U.S.C.A. § 1988 (Dec. 1976 Supp.), which provides in pertinent part:

In any action or proceeding to enforce a provision of sections 1981 to 1983, 1985, and 1986 of this title * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

The Act did not become effective until October 19, 1976, subsequent to the conclusion of the district court proceedings; however, we have held that the Act may be applied retroactively in cases in which an appeal was pending on the effective date of the Act. Finney v. Hutto, 548 F.2d 740, 742 (8th Cir. 1977). We feel that this is an appropriate case for an award of attorneys' fees. Accordingly, we award plaintiffs' attorneys fees for the appellate portion of this litigation in the sum of $1,000. We remand the cause to the district court for the determination and entry of an award of reasonable attorneys' fees for the district court phase of this case. See Doe v. Poelker, 515 F.2d 541, 548 (8th Cir. 1975), cert. granted, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976).

Conclusion.

We hold that the defendants' refusal to recognize Gay Lib as a campus organization denied plaintiffs their First Amendment rights.18 The judgment of the district court is reversed and the cause remanded for the entry of appropriate injunctive relief and an award of attorneys' fees.

WEBSTER, Circuit Judge, concurring.

I join in the court's opinion. Of particular significance to me is the prior restraint of First Amendment rights on such skimpy and speculative evidence as appellees advanced below. There is absolutely no evidence that appellants intend to violate any state law or regulation of the university or even that they will advocate such violations. Until such time as imminent overt lawless activity can be shown, the organization may not be excluded from recognition if it is otherwise in compliance with university regulations. Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).

I have no doubt that the ancient halls of higher learning at Columbia will survive even the most offensive verbal assaults upon traditional moral values; solutions to tough problems are not found in repression of ideas. I am equally certain that the university possesses the power and the right to deal with individuals and organizations, "recognized" or not, that violate either its lawful regulations or the laws of the state. There will be time for that if appellees' dire predictions should somehow prove to be correct. The nature of our government demands that we abide that time.

REGAN, District Judge, dissenting.

I respectfully dissent.

I recognize, as did the District Court, that the denial of official recognition to a college organization is a form of prior restraint of the First Amendment of right of association, as held in Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266. "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech," NAACP v. Alabama, 357 U.S. 449, 460, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488. And as the Supreme Court stated in the last cited case, "Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state actions which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."

Having said this, I am nevertheless convinced, after a careful study of the record, that the District Court correctly held that the evidence amply justified the considered decision of the University officials to deny recognition to Gay Lib.

What Healy v. James held was that "denial of official recognition, without justification, to college organizations burdens or abridges the right of individuals to associate to further their personal beliefs." Healy involved a "left wing" group (Students for a Democratic Society) which sought recognition at a time when "(t)here had been widespread civil disobedience on some (college) campuses, accompanied by the seizure of buildings, vandalism and arson," with respect to which "SDS chapters on some of these campuses had been a catalytic force during this period." However, inasmuch as there was a total absence of any evidence that the organization seeking recognition itself actually "posed a substantial threat" that it would constitute a disruptive force on campus, there was, on the record, "no justification" for denying recognition to that group.

I do not read Healy as mandating that in every case involving non-recognition of a campus group a showing of the certitude of imminent overt lawless or disruptive activity must be made. Rather, the issue is whether, under the circumstances, justification of the appropriateness of denial of recognition has sufficiently been shown.

The credible testimony of highly qualified psychiatrists persuasively demonstrates to me, as it did to the District Court, that homosexual behavior is compulsive and that homosexuality is an illness and clearly abnormal. In view of the expert testimony which in my view is neither "skimpy (nor) speculative," defendants were warranted in concluding that formal recognition of Gay Lib would tend to expand homosexual behavior and activity on campus and likely result in felonious acts of sodomy proscribed by Missouri law. As the District Court stated: "The legitimate interest of the University as a state institution includes the right to refuse the requested recognition and its concomitants where the result predictably is to bring on the commission of crimes against the sodomy statutes of the State of Missouri."

With all due respect to the majority, I do not agree that the combined testimony of the psychiatrists testifying for the defendants stands on no different footing than that of the school principal in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). In light of the admittedly "outstanding professional credentials" of the psychiatrists, they were eminently qualified by training and experience to express expert opinions on the subject of homosexuality and the effect of recognition of Gay Lib by the University.

As for Tinker, it held only that individuals had the right to wear black armbands as a silent, passive expression of their disapproval of this country's Viet Nam policy. Such a purely symbolic act was "unaccompanied by any disorder or disturbance" on their part or any "interference, actual or nascent, with the schools' work or . . . collision with the rights of other students to be secure and to be let alone." The case was not ruled in the context of group action. It involved only the school authorities' disagreement with the philosophy being expressed by the wearers of the black armbands. It is totally unlike the situation here present. Here, the officials' denial of recognition to Gay Lib was not based on "mere disagreement" with the group's "philosophy."

Moreover, state university officials have a responsibility not only to taxpayers but to all students on campus, and that responsibility encompasses a right to protect latent or potential homosexuals from becoming overt homosexual students. In carrying out these responsibilities, they were aware that unlike recognition of political associations, whether of the right, center or left, an organization dedicated to the furtherance and advancement of homosexuality would, in any realistic sense, certainly so to impressionistic students, imply approval not only of the organization per se but of homosexuality and the normality of such conduct, and thus adversely affect potential homosexual students. In my opinion, the University was entitled to protect itself and the other students on campus, in this small way, against abnormality, illness and compulsive conduct of the kind here described in the evidence.

Finally, I do not agree that the "clearly erroneous" rule may be rejected in this case. The mere fact that the testimony was submitted to the district court in deposition and transcript form does not justify a completely de novo approach by this Court. See Frank Adam Electric Co. v. Colt's Patent Fire Arms Mfg. Co., 148 F.2d 497, 499 (8th Cir. 1945), holding, per Judge Sanborn,

While the Special Master, who tried this case upon the written transcript taken before Judge Davis (who subsequently died), had no better opportunity to weigh the evidence than we have, this court will not try the case de novo. The findings of fact of the Special Master, which have been approved by the District Court, are conclusive upon this court in so far as they are not clearly erroneous.

The case of Frito-Lay, Inc. v. So Good Potato Chip Co., 540 F.2d 927, cited by the majority, does not involve a comparable situation. Judge Webster, after noting that there was no dispute as to the evidence and that no credibility issues were before this Court, pointed out that the crucial finding of the trial court was not based on expert testimony but rather upon that court's interpretation of a non-ambiguous contract and his personal observation of physical exhibits which this Court also viewed. Even so, Judge Webster was careful to make clear that "(t)he factual determinations underlying the issue of 'similarity' remain subject to the clearly erroneous standard of review."

The other cases cited by the majority, Oil Screw Noah's Ark v. Bentley & Felton Corp., 322 F.2d 3, and United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746, are equally inapposite. They recognize the force of the clearly erroneous rule which authorizes the reversal of a district court's findings only if the reviewing court has the "firm conviction that a mistake has been committed," or, as the rule is stated in Oil Screw Noah's Ark, the definite feeling that "a fundamentally wrong result has been reached."

I am firmly of the view that Rule 52, FRCP, which mandates that the district court's "(f)indings of fact shall not be set aside unless clearly erroneous," precludes reversal in this case. Granted that the trial court had no better opportunity than this panel to judge the credibility of the witnesses, a factor which may not be ignored, nevertheless, the plain language of the Rule makes the clearly erroneous principle here applicable. And since I do not have a firm conviction that the trial court reached a fundamentally wrong result, I would affirm.

The petition for rehearing en banc is denied by an evenly divided court.

GIBSON, Chief Judge, joined by HENLEY, Circuit Judge, files the following statement in regard to the denial of the petition for rehearing en banc:GIBSON, Chief Judge.

I dissent from the denial of the petition for rehearing en banc. In my opinion, Fed.R.Civ.P. 52 has been misapplied in this case and the District Court's findings of fact, which are supported by the record, have been improperly displaced by appellate findings of fact.

The divided panel opinion seems to hold that the "clearly erroneous" standard of Rule 52 does not apply to this case. See ante n. 10. This approach misconceives the reach of Rule 52 and ignores the traditional rule that appellate courts do not review a trial judge's factual findings de novo. Even where the evidence at trial consists solely of depositions and other documentary evidence, the appellate court must respect the trial judge's credibility evaluation and adopt his findings unless they are clearly erroneous. Merrill Trust Company v. Bradford, 507 F.2d 467 (1st Cir. 1974); Aetna Casualty and Surety Co. v. Hunt, 486 F.2d 81 (10th Cir. 1973); Volkswagen of America, Inc. v. Jahre, 472 F.2d 557 (5th Cir. 1973); Frank Adam Electric Co. v. Colt's Patent Fire Arms Mfg. Co., 148 F.2d 497 (8th Cir. 1945).

The District Court, accepting the testimony of two highly qualified psychiatrists, found that recognition of Gay Lib would likely result in imminent violations of the Missouri sodomy laws. To rebut this expert psychiatric testimony, Gay Lib relies on the testimony of a medical doctor who is not a psychiatrist; an assistant professor of psychology who stated that he had not undertaken any in-depth research into the etiologies of homosexuality, but "doubt(ed)" that recognition of Gay Lib would increase actual homosexual behavior; and a professor of psychology who admitted in his testimony that "I'm not saying that the existence of such a (homosexual) group wouldn't" increase the incidence of homosexuality on the campus.

The District Court, confronted with this conflicting testimony, accepted the testimony of the psychiatric experts rather than the above testimony of non-psychiatrists. Lacking training in the psychiatric discipline, appellate judges are ill-prepared to conclude that these expert psychiatric opinions lack an historical or empirical basis. Maybe an appellate court, reviewing this case de novo, would have made a finding different than the District Court's. But our review is not so unbridled that we can reject the District Court's findings on that basis. "It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent." United States v. National Association of Real Estate Boards, 339 U.S. 485, 495, 70 S. Ct. 711, 717, 94 L. Ed. 1007 (1950). Our review is circumscribed by the clearly erroneous standard, which allows us to reject a finding of the District Court only if we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948). I find adequate evidentiary support for the District Court's findings and would not disturb them.

Given the finding that recognition of Gay Lib would likely result in imminent violations of Missouri sodomy laws, there is no prior restraint issue in this case. There is "little doubt that the University could constitutionally regulate such conduct," Gay Alliance of Students v. Matthews, 544 F.2d 162, 166 (4th Cir. 1976), and the First Amendment does not require a University to extend formal recognition to a campus organization that will engage in criminal activity, Healy v. James, 408 U.S. 169, 188-89, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972). Citizens possess no First Amendment right to engage in illegal activity and, in light of the District Court's findings, the University officials' action did not constitute an impermissible prior restraint.

This case involves the sensitive and polemical issue of homosexual rights, an issue which has spawned nationwide debate and attention. The limited question here is whether a homosexual group has a First Amendment right to be recognized by a university and thus to be entitled to use school facilities and to be eligible for student activities funds. These First Amendment arguments must be considered in light of the special characteristics and interests of an educational institution. Healy v. James, 408 U.S. 169, 180, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972). These institutions are populated by young, often impressionable students; school officials have a responsibility to shield these students from exposure to probable illegal conduct on the campus. Missouri law has criminalized sodomy and the District Court found that recognition of Gay Lib would result in imminent violations of that law. Under these circumstances, it was permissible for school officials to withhold recognition of Gay Lib. Requiring the school to recognize Gay Lib places school officials in the unseemly position of officially sanctioning this conduct and making school funds and facilities available for the use of a homosexual organization, whose members will likely engage in criminal activity, a situation not mandated by the First Amendment.

This is yet another example of unwarranted judicial intrusion into the internal operations of an educational institution. School officials are charged with the responsibility of making and implementing policy decisions. Before deciding not to recognize Gay Lib, the Board of Curators appointed a hearing officer, who heard substantial lay and expert testimony on this issue. His recommendation that the school not recognize Gay Lib was adopted by the Board of Curators. I would defer to the policy decisions of school administrators, who are more attuned to the interests of the students and the school than we are. We are not school administrators and have no authority to dictate school policy unless there is a clear showing of a constitutional violation. I find no such violation here. I am in accord with Judge Regan's dissenting opinion and would affirm the District Court's Judgment.

STEPHENSON, Circuit Judge.

I concur in Chief Judge Gibson's dissent from the denial of the petition for rehearing en banc with the reservation that it is my view that this court is not bound by the District Court's credibility evaluation of witnesses where the evidence is submitted by deposition or in other documentary form.