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 “[tjhere 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 *859was 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 ease 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 inappo-site. 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.