Dispatches from the Creation Wars

A New Case on Mootness

A new ruling just came down from a Federal district court in North Carolina that mooted a case because the university changed its policy while the case was still pending. And because the plaintiffs’ attorneys in the case of Alpha Iota Omega Christian Fraternity v. Moeser were from the ADF, I am anticipating that the DI and their fellow travelers will at some point use this to argue that the Dover case could also be mooted. So before they even head down that road, let me cut them off at the pass: this ruling is entirely different from Dover and does not support the argument for mootness in that case.

The Moeser case involved the University of North Carolina’s non-discrimination policy. They had a policy that said that no official student organizations could discriminate on the basis of religion or sexual orientation and a Christian fraternity filed suit, arguing that this violates their right to expressive association. The fraternity is correct and the judge in the case issued a preliminary injunction against the university, sending the clear message that they were likely to lose the case. The university then decided to rewrite their policies and granted official recognition to the fraternity.

At that point, the university filed a motion to dismiss due to mootness and the judge just ruled in favor of that motion. That’s the ruling linked to above. But there are several crucial differences between this case and the Dover case and those differences are highly dispositive on the question of whether that case could have been mooted. Those differences are:

A. There was no request for nominal damages in the UNC case. Indeed, the judge’s ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge’s injunction clearly told the university that if they reversed themselves, they’d get hauled into court and almost certainly lose. On that question, the court ruled:

Although there is a remote possibility that Defendants could be acting in bad faith and could, as soon as the lawsuit is ended, change all of the forms and websites back to the 2003 Policy and revoke AIO’s official recognition, the court believes that such a development is unlikely and that Defendants can and should be trusted to abide by the 2005 Policy. Defendants have met their burden of persuasion and this case must be dismissed.

Notice that the burden of proof was placed squarely on those arguing for mootness, not on the plaintiffs, but that burden was met because of the facts listed above. In the Dover case, the arguments for mootness were far more difficult to make because the facts were significantly different and less amenable to mootness. So let’s not hear Francisco, Manzari or Cooper trying to use this as support for their position; it clearly does not support that position.


  1. #1 Reed A. Cartwright
    May 19, 2006

    I don’t understand. I thought that non-discrimination policies for student clubs were constitutional. Was there some special wording that made UNC’s different?

  2. #2 Ed Brayton
    May 19, 2006

    No, such rules are not constitutional. The principle is essentially the same as underlies the Equal Access Act for student clubs at the secondary level. If the university is going to provide official recognition and/or funding for student clubs, they can’t discriminate on the basis of the content of the club’s mission, or force them to alter it. In the case of a religious group, it would obviously be absurd to demand that a Muslim group admit non-Muslims, or a Christian group admit non-Christians. While not precisely on point, the basic principle can be found in Rosenberger. That case dealt with whether a university could refuse funds for printing material for a religious group on campus when they paid for printing by other recognized groups. As I said, it’s not precisely on point, but the basic principle is there, and Rosenberger also drew on Lamb’s Chapel, an equal access decision forbidding viewpoint discrimination in access to public school facilities.

  3. #3 sgent
    May 19, 2006

    It should be noted that such rules might be acceptable for private univerisities. However, universities that are publically chartered and recieve direct general support from the state government is a state actor. Thus, their ability to restrict the freedom of association is severely curtailed.

  4. #4 Reed A. Cartwright
    May 20, 2006

    I don’t see how this is any different than the city of Berekely refusing to subsidise the Boy Scouts because they discriminate. It seems to me that there exists pretty clear precident that allows government entities to not provide freebies to discrimatory organizations.

    That is why I am confused that UNC thought that it was going to lose. Do you have the text of the policy, both before and after?

  5. #5 Reed A. Cartwright
    May 20, 2006

    Okay, after looking at the order, I see that UNC did not change its rules to remove the non-discrimination policy, but instead changed some wording around to allow organizations restrict membership based on beliefs:

    2. Student organizations that select their members on the
    basis of commitment to a set of beliefs (e.g., religious
    or political beliefs) may limit membership and
    participation in the organization to students who, upon
    individual inquiry, affirm that they support the
    organization’s goals and agree with its beliefs, so long
    as no student is excluded from membership or
    participation on the basis of his or her age, race,
    color, national origin, disability, religious status or
    historic religious affiliation, veteran status, sexual
    orientation, or, unless exempt under Title IX, gender.

    It got the cased mooted, but I’m not sure if this policy isn’t saying “you can restrict membership based on beliefs so long as you don’t restrict membership based on … beliefs.”

  6. #6 Caledonian
    May 20, 2006

    That’s exactly what it says.

    What a bunch of wetbrains.

  7. #7 Ed Brayton
    May 20, 2006


    That’s an interesting argument. What is the distinction between the series of cases that lead to the Berkeley decision, which hold that governments can refuse to give generally available benefits (including access to facilities) to groups that discriminate, and the series of cases that lead to the UNC situation, like Lamb’s Chapel, which hold that schools cannot engage in viewpoint discrimination when giving access to facilities or generally available benefits? I’m afraid I don’t have time for a full answer at the moment, as I’m playing in a qualifying tournament for the World Series of Poker in a few minutes. I’ll try and address the question later.

  8. #8 Ed Brayton
    May 20, 2006


    You don’t seem to be able to make any comments at all without insulting other commenters. Frankly, I’m finding it rather annoying. May I politely suggest that you rethink whether you really want to comment here?

  9. #9 Caledonian
    May 20, 2006

    The insult is directed at the collegiate administration of the University of North Carolina, who just crafted a policy that permits an action to be taken as long as that action isn’t taken.

    May I politely suggest that you a) determine who or what is being insulted and b) determine whether that insult is deserved, before criticizing others for making it?

  10. #10 Ed Brayton
    May 20, 2006

    Every single comment you’ve left here over the last week or so has included an insult at the person you’re replying to. And as I said, I’m getting tired of it. You can discourse in a civil fashion with my other readers, or you can leave. The end.

  11. #11 Caledonian
    May 20, 2006

    Part of civil discourse is being able to call a spade a spade. I don’t feel the need to reaffirm statements that are well-put, internally coherent, or factually accurate. Stupid, incorrect, or incoherent arguments deserve to be corrected and publically mocked until they are.

    If you’re not interested in exposing and denouncing stupidity, perhaps you should blog about a different subject — one that doesn’t attract people who don’t tolerate fools. Or perhaps the issue is that you feel entitled to smash people who are being stupid on select topics, but dislike the atmosphere it creates when it’s on your home turf — the “not in my sandbox” attitude, otherwise known as “do as I say, not as I do”.

  12. #12 Ed Brayton
    May 20, 2006

    *yawn* I really don’t care whether you agree with me. I have no problem with calling a spade a spade, as anyone who reads my blog certainly knows. But every single comment you’ve left has been nothing but vitriol, and aimed at several of my readers who simply don’t deserve it. And since it’s quite obvious that you have no intention of changing that track record, you can now go away. Buh bye.

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