On Petition for Rehearing En Banc
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:
*860GIBSON, 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 *861school 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.