[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 27, 2009
THOMAS K. KAHN
No. 08-13332 CLERK
D. C. Docket No. 07-00135-CV-1-SPM-AK
BETA UPSILON CHI UPSILON CHAPTER AT THE
UNIVERSITY OF FLORIDA, a student organization
at the University of Florida on behalf of
itself and its individual members,
BETA UPSILON CHI, INC., a Texas non-profit
corporation,
Plaintiffs-Appellants,
versus
J. BERNARD MACHEN, in his official capacity
as President of the University of Florida,
PATRICIA TELLES-IRVIN, in her official capacity
as Vice-President for student affairs,
EDDIE DANIELS, JR., in his official capacity as
Execuvit Director of the J. Wayne Reitz Union,
CHRIS CUPOLI, in his official capacity as the
Director of Student Involvement,
CARLOS ALFONSO,
C. DAVID BROWN, II, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Florida
(October 27, 2009)
As Amended December 7, 2009
Before TJOFLAT, EDMONDSON and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
Beta Upsilon Chi a/k/a Brothers Under Christ (“BYX”) is a Christian
fraternity.1 In 2007, the University of Florida (“UF” or “University”) denied BYX
official recognition because of its refusal to adhere to UF’s nondiscrimination
policy. BYX thereafter brought this action for declaratory and injunctive relief
against the University2 claiming that UF, by requiring it to comply with the
nondiscrimination policy as a condition of recognition, had infringed its First and
Fourteenth Amendment rights of association, freedom of speech, and free exercise
of religion. After filing its complaint, BYX moved the district court to enter a
preliminary injunction forcing the University to recognize it as a registered student
1
The parties have used the acronym “BYX” throughout. The three Greek symbols
represent to Beta Upsilon Chi, respectively.
2
BYX sued the University’s President and University officials purportedly involved in
the refusal to grant it recognition. We refer to the defendants collectively as the University or
UF.
2
organization. The district court denied the motion, Beta Upsilon Chi v. Machen,
559 F. Supp. 2d 1274 (N.D. Fla. 2008), and this interlocutory appeal followed.3
UF has amended its nondiscrimination policy and has allowed BYX to register.
Accordingly, UF moved this court to dismiss the appeal as moot. BYX opposes
the motion. Satisfied that the controversy at issue has ended, we dismiss the
appeal as moot.
I.
A.
BYX is a national fraternity founded in 1985. It has twenty-two chapters in
nine states. According to its constitution, it “exists for the purpose of establishing
brotherhood and unity among college men based on the common bond of Jesus
Christ.” BYX espouses a strict approach to the Christian faith, and membership in
the fraternity is contingent upon what the fraternity deems “a credible profession
of faith in Jesus Christ.” This requires agreement not only with the traditional
core Christian beliefs and values contained in such ancient expressions as the
Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal
statement, BYX explains that members must “believe that the Bible is God’s
written revelation to man, that it is inspired, authoritative, and without error in the
3
We have jurisdiction to entertain this appeal under 28 U.S.C. § 1292(a)(1).
3
original manuscripts.” Accordingly, BYX bars non-Christians4 from membership.
BYX also demands moral and “sexual purity.” According to its code of
conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant
of marriage between a man and a woman. Therefore, we will not condone such
activity as homosexuality, fornication, or adultery.”5
Persons seeking membership in the fraternity are interviewed by a panel of
at least three chapter officers. The officers ask the applicant a series of questions
about his Christian beliefs and willingness to agree with and adhere to BYXs
statement of faith, purpose, and code of conduct. An applicant is admitted as a
pledge only after all presiding chapter officers agree the applicant has
demonstrated an agreement with BYX’s viewpoint on the Christian faith and a
willingness to conform to the organization’s code of conduct.
After admission into the fraternity as a pledge, the applicant must complete
the pledge process. The purpose of the pledge process is to examine the
applicant’s understanding of salvation, his personal relationship with Jesus Christ,
and his willingness to accept and promote BYX’s doctrine. As part of the process,
the pledge must participate in BYX’s “Big/Little Brother Program” and is assigned
4
BYX considers Mormons and Seventh Day Adventists non-Christians.
5
This rule applies to all homosexuals irrespective of whether they have ever engaged in
homosexual conduct.
4
to an active member of the fraternity who serves as the pledge’s “Big Brother.”
The Big Brother is required to watch over the pledge and ensure that he is
conducting himself in conformity with the fraternity’s code of conduct.
Ideological, theological, and moral purity are central elements of BYX’s
foundational purpose, and the “Big Brother” program is designed as a safeguard
against the pledge going astray. As BYX’s constitution states,
BYX has fulfilled its purpose over the years, and Satan hates it. He
wants to sift this group like wheat and is roaming on [ ] campus like a
roaring lion waiting for the chance to destroy us. If the devil sifts our
group, he will probably do it primarily through alcohol, but also
through sexual impurity or lust, pride, laziness, and contention. So be
on your guard.
The “Big Brother” is the first line of defense against such impurities and
influences infiltrating the group.
After completing the semester-long pledgeship, the pledge becomes a
member of the fraternity. He is then eligible to stand for election to chapter officer
positions, vote for chapter officers, serve as a “Big Brother” who can mentor and
hold others accountable to the moral standards established by the group, and
participate in the general business of the organization.
All BYX members and pledges participate in Cell Groups, which are weekly
meetings where the members and pledges hold one another accountable to living
5
consistently with BYX’s Christian beliefs and values. BYX also holds weekly
meetings, which include prayer, worship, encouragement of specific members, a
testimony or Bible message from a fraternity member, and announcements
pertaining to fraternity business.
B.
The University of Florida permits and encourages student organizations to
undergo its registration process and become Registered Student Organizations
(“RSOs”). According to the Student Organization Handbook (“Handbook”),
“[s]tudent organizations are an essential part of the University of Florida
community and are an integral part of the total academic program. Such
organizations foster valuable experiences for students that lead to significant
learning and development and create a sense of belonging.”
Currently, more than 750 UF student groups are RSOs. There are sixty
religious RSOs, of which forty-eight are Christian.
UF’s Center for Student Activities and Involvement (“CSAI”) is responsible
for registering student organizations. To become an RSO, a group must complete
registration paperwork with the CSAI and fulfill certain requirements (e.g., select
a unique name, describe the group’s purpose and activities, and have at least three
members). The primary benefits of RSO status are eligibility to apply to the
6
Student Government for funding and priority use of some facilities. RSOs are also
afforded a number of channels through which they can communicate with the
campus community. These include (1) advertising in the highly trafficked J.
Wayne Reitz Union; (2) participating in the annual Student Organizations Fair; (3)
staffing an information table in front of the Union; (4) appearing in lists of student
organizations in UF publications, including UF’s website and hard copy
publications; and (5) establishing an organizational website and e-mail address.
A student group may also choose to forego the registration process and exist
as a non-registered group. While not afforded the full range of benefits of an
RSO, a non-registered group may nevertheless use campus facilities, distribute
literature on campus, verbally express its views on campus, and recruit new
members.
UF requires that RSOs abide by the University’s nondiscrimination policy,
as derived from UF Regulation 6C1-1.006(1) available at
http://regulations.ufl.edu/chapter1/1006.pdf. (the “Policy” or “Handbook Policy”).
The Policy states that UF “is committed to non-discrimination with respect to race,
creed, color, religion, age, disability, sex, sexual orientation, marital status,
national origin, political opinions or affiliations, and veteran status” and states that
7
“[t]his commitment applies in all areas,” including “to students.” The Handbook
explains the application of the Policy to RSOs:
A registered student organization may not discriminate against a
member or prospective member on the basis of race, color, religion,
sex, national origin, ancestry, age, marital status, disability,
unfavorable discharge from the military, or status as a disabled
veteran or veteran of the Vietnam era, except as specifically exempted
by law. Likewise, among the individual discrimination prohibited by
the University policy, but not by law, is sexual orientation.
Unlike non-registered groups, RSOs must have a constitution to
demonstrate compliance with basic registration requirements. As of the 2008-09
academic year, each RSO constitution must contain the following statement:
In compliance with the University of Florida Non-Discrimination
Policy (Regulation 6C1-1.006) [Name of organization] will not
discriminate on the basis of race, creed, color, religion, age, disability,
sex, sexual orientation, marital status, national origin, political
opinions or affiliations, and veteran status, national origin, political
opinions or affiliations, and veteran status as protected under the
Vietnam Era Veteran’s Readjustment Assistance Act.
Under the Handbook Policy, an RSO may not exclude a student from
membership based upon his or her religious beliefs. “However, when an RSO
selects its leaders it may consider whether the views of an officer candidate reflect
those of the organization.” UF provides student groups a guidance document,
which offers the following as a permissible sample provision that may also be
included in an RSO constitution: “Only an individual whose interests, views, and
8
knowledge align with our organization’s religious purpose is eligible to run for
office, as specified in our By-laws.”
C.
On March 16, 2007, BYX founded a chapter at UF6 and thereafter requested
the University to register the chapter so that it could receive the full range of
benefits enjoyed by RSOs. On May 17, 2007, the University denied BYX’s
request on the ground that because the fraternity would not allow women to join,
BYX was in violation of the Policy’s prohibition against sex discrimination. In
response, BYX brought this lawsuit on July 10, 2007, seeking declaratory and
injunctive relief against the University under 42 U.S.C. § 19837 on the ground that
its refusal to register BYX’s chapter has denied the chapter rights guaranteed by
the First and Fourteenth Amendments.
6
The chapter is officially called Beta Upsilon Chi, Upsilon Chapter. At the time the
district court heard BYX’s application for a preliminary injunction, the chapter had seven
members.
7
Section 1983 of Title 42 of the United States Code states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
9
After the University responded to its complaint, BYX located and formally
affiliated its chapter with a sorority, Theta Alpha. The University concluded that
the affiliation with Theta Alpha satisfied its concern over sex discrimination but
nevertheless denied the chapter registration because BYX refused to state in its
constitution that it would not discriminate on the basis of creed or religion. The
University determined that BYX’s stringent membership requirements amounted
to “religious” discrimination in violation of the Handbook Policy.
On October 4, 2007, BYX amended its complaint to address UF’s new
rationale for denying registration.8 The amended complaint contained five counts,
all based on the University’s refusal to afford the fraternity full RSO status and
asserting a violation of First Amendment rights. Count I alleged that the refusal
infringed the fraternity’s right to freedom of expressive association. Count II
alleged infringement of the right to freedom of intimate association. Count III
alleged infringement of the right to free speech. Count IV alleged infringement of
the right to free exercise of religion. Count V alleged that the University was
denying the fraternity equal protection of the laws in violation of the Fourteenth
Amendment. For relief, in addition to a declaration that UF had infringed its
8
This was BYX’s second amended complaint. BYX filed its first amended complaint on
August 15, 2007.
10
rights as asserted in these counts, BYX sought a preliminary and permanent
injunction ordering UF to grant its chapter “Registered Student Organization
status; and prohibiting [UF] . . . from withholding the rights, privileges, benefits,
or incidents of registered status from BYX and from retaliating against [BYX] and
its members directly or indirectly for exercising their constitutional rights.”
On October 17, BYX filed a motion for preliminary injunction. In its
motion, BYX claimed that because UF had denied its chapter RSO status during
Fall Rush, it was unable to advertise or host any of its rush meetings or activities
on campus. As a result, the chapter was only able to recruit three new pledges,
whereas other Christian fraternities were able to recruit substantially greater
numbers. It asked the court to provide injunctive relief to ensure the fraternity
would be able to attain RSO status and thereby fully participate in Spring Rush.
As for the legal basis of the motion, BYX asserted that it was unconstitutional
(and illogical) to create a public forum that includes organizations organized
around specific religious principles but not allow those organizations to accept or
exclude members based on that faith. It also claimed that UF’s enforcement of its
nondiscrimination policy was designed to induce BYX to alter its membership
standards and force it to abandon its core beliefs. This, according to BYX, would
11
unduly and unconstitutionally burden its members’ ability to express their beliefs
and give effect to the fraternity’s stated purpose.
The University opposed BYX’s motion, arguing that BYX was not hindered
in its recruitment efforts on account of the status of its chapter as an unregistered
organization. It claimed that the chapter was able to communicate with UF
students during Fall Rush by advertising itself in student areas and by using online
social networking sites like Facebook. The University also pointed out that the
chapter was able to use the Orange and Brew coffee shop, located on campus, for
its weekly Cell Groups, and noted that it had held several events around campus
and had participated in intramural sports. The University also claimed that BYX
had mischaracterized the case as a forced inclusion case. It argued that it had not
forced BYX to include unwanted members; instead, UF claimed that it had simply
conditioned the fraternity’s registration as an RSO—which would allow the
chapter to apply for funding and provide it with priority access to facilities and
channels of communication—on compliance with UF’s nondiscrimination policy.
On May 29, 2008, over seven months after BYX filed its motion for a
preliminary injunction, the district court entered an order denying the motion. In
its order, the court rejected BYX’s expressive association and viewpoint
discrimination claims. The court found no evidence that the Handbook Policy
12
would “significantly affect BYX’s ability to express itself—publicly or privately.”
Machen, 559 F. Supp. 2d at 1278. The court also found “no evidence that the
mere presence of non-Christians [in BYX] will prevent the other members from
fostering unity and encouraging each other in their Christian walk.” Id. As for
BYX’s viewpoint discrimination claim, the court noted that UF had registered
numerous Christian organizations, but, unlike BYX, these Christian organizations
had agreed to comply with the University’s nondiscrimination policy. This fact
alone, in the court’s view, demonstrated that viewpoint discrimination “was not
the rationale for UF’s decision.” Id. at 1280.
On June 6, 2008, BYX filed a notice of appeal challenging the district
court’s May 29 order, and moved this court for an injunction pending appeal. On
July 30, a panel of this court entered an order granting BYX’s motion and an
injunction issued.9
II.
On January 15, 2009, after we heard oral argument, the University
announced that it had modified the Handbook Policy relating to the registration of
9
The panel issued the injunction after considering four factors: (1) whether the movant
was likely to prevail on the merits of its appeal; (2) whether, if the injunction did not issue, the
movant would suffer irreparable harm; (3) whether, if the injunction issued, any other party
would suffer substantial harm; and (4) whether an injunction would serve the public interest. See
In re Grand Jury Proceedings, 975 F.2d 1488, 1492 (11th Cir. 1992).
13
student organizations and had registered BYX as an RSO. The Handbook Policy,
as modified, provides:
Student organizations that wish to register with the Center for Student
Activities and Involvement (CSAI) must agree that they will not
discriminate on the basis of race, creed, color, religion, age, disability,
sex, sexual orientation, marital status, national origin, political
opinions or affiliations, or veteran status as protected under the
Vietnam Era Veteran’s Readjustment Assistance Act.
A student organization whose primary purpose is religious will not be
denied registration as a Registered Student Organization on the
ground that it limits membership or leadership positions to students
who share the religious beliefs of the organization. The University
has determined that this accommodation of religious belief does not
violate its nondiscrimination policy.
(the “modified Policy”) (emphasis added). This statement is in effect and is
reflected in the CSAI Handbook of Activities and CSAI’s registration and
constitution guidelines and website.
Under the modified Policy, the BYX chapter is considered a “student
organization whose primary purpose is religious.” Thus, the fact that BYX “limits
membership or leadership positions to students that share the religious beliefs of
the organization” is no limitation to registration as an RSO. Accordingly, the
fraternity, having been duly registered as an RSO, now enjoys the same benefits
offered to all other RSOs at the University. Given this turn of events, the
University moved this court to dismiss this appeal for mootness.
14
BYX is not satisfied with this result, however, and urges us to reach the
merits of its constitutional claims. It ardently presses us to retain jurisdiction over
this case because the University has failed to change the regulation from which the
CSAI Handbook nondiscrimination policy derived: UF Regulation 6C1-1.006(1)
(the “Regulation”). Furthermore, BYX is troubled by UF’s timing. It contends
that “the timing of [UF’s] motion to dismiss [this appeal] indicates that it is
motivated not by a genuine change of heart but rather by a desire to avoid
liability.” We are not concerned with UF’s motivation for changing its
registration policy, but only with whether a justiciable controversy exists. Finding
that BYX has received the relief sought in its complaint, we reject its request that
we reach its constitutional claims and dismiss this case, as we no longer possess
jurisdiction.
The Constitution confines the jurisdiction of the federal courts to actual
“Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. This prerequisite must
be satisfied at each stage of the litigation. See Spencer v. Kemna, 523 U.S. 1, 7,
118 S. Ct. 978, 140 L. Ed. 2d 43 (1998); Roe v. Wade, 410 U.S. 113, 125, 93 S.
Ct. 705, 35 L. Ed. 2d 147 (1973); Coral Springs St. Sys., Inc. v. City of Sunrise,
371 F.3d 1320, 1327 (11th Cir. 2004). Because this requirement is foundational
and “goes to the heart of our constitutional doctrine of the separation of powers
15
and the proper role of the judiciary,” sound practice counsels that we begin our
inquiry there. Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382
F.3d 1276, 1282 (11th Cir. 2004). See also City of Erie v. Pap’s A.M., 529 U.S.
277, 287, 120 S. Ct. 1382, 1390, 146 L. Ed. 2d 265 (2000); De La Teja v. United
States, 321 F.3d 1357, 1362 (11th Cir. 2003) (“‘The doctrine of justiciability
prevents courts from encroaching on the powers of the elected branches of
government and guarantees that courts consider only matters presented in an
actual adversarial context.’”) (quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1335
(11th Cir. 2001)).
The law is clear that if, pending an appeal, events transpire that make it
impossible for this court to provide meaningful relief, the matter is no longer
justiciable. Al Najjar, 273 F.3d at 133. This is so even if, as here, the court has
heard oral argument and has taken the case under advisement. See United States
v. Koblan, 478 F.3d 1324, 1326 (11th Cir. 2007) (per curiam) (dismissing the
appeal as moot despite the fact that “all briefs have been filed, oral argument has
been held, and nothing remains but the issuance of this Court's opinion”). The
burden of establishing mootness rests with the party seeking dismissal. See
County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d
642 (1979). This burden is a heavy one. United States v. W.T. Grant Co., 345
16
U.S. 629, 633, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953). Moreover, dismissal is
compulsory as federal subject matter jurisdiction vanishes at the instant the case is
mooted. See Coral Springs, 371 F.3d at 1327.
The University claims that this appeal no longer embodies a live case or
controversy because it has modified the Handbook Policy and now allows
religious groups like BYX to register and has, in fact, already registered BYX’s
chapter as an RSO. Because it has endowed the chapter with the status and
benefits of an RSO, no controversy exists and this appeal is merely academic.
BYX counters that while UF has amended the CSAI Handbook, the
Regulation, the source of the constitutional violation, remains in effect. BYX
claims that unless the Regulation is amended, UF may capriciously revoke BYX’s
RSO status at any time.10
BYX grounds its argument in the “voluntary cessation” doctrine, which
provides that the “[m]ere voluntary cessation of allegedly illegal conduct does not
moot a case.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S.
199, 203, 89 S. Ct. 361, 364, 21 L. Ed. 2d 344 (1968). The basis for this doctrine
is a concern that a defendant who voluntarily ceases an activity is “free to return to
10
BYX also protests that the timing of UF's decision to amend the CSAI handbook
demonstrates that it amended the handbook only to avoid an unfavorable appellate decision.
17
his old ways.” Id. (internal quotation omitted). Yet such concern is less warranted
“when the defendant is not a private citizen but a government actor.” Troiano, 382
F.3d at 1283. In such cases, “there is a rebuttable presumption that the
objectionable behavior will not recur.” Id.; see also Coral Springs, 371 F.3d at
1328-29 (“[G]overnmental entities and officials have been given considerably
more leeway than private parties in the presumption that they are unlikely to
resume illegal activities.”); Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.
1988) (“[C]essation of the allegedly illegal conduct by government officials has
been treated with more solicitude by the courts than similar action by private
parties.”).
In cases where government policies have been challenged, the Supreme
Court has held almost uniformly that voluntary cessation of the challenged
behavior moots the claim. See, e.g., Lewis v. Cont’l Bank Corp., 494 U.S. 472,
474, 110 S. Ct. 1249, 1252, 108 L. Ed. 2d 400 (1990); Princeton Univ. v. Schmid,
455 U.S. 100, 103, 102 S. Ct. 867, 869, 70 L. Ed. 2d 855 (1982) (per curiam);
Kremens v. Bartley, 431 U.S. 119, 128–29, 97 S. Ct. 1709, 1715, 52 L. Ed. 2d 184
(1977); Diffenderfer v. Cent. Baptist Church, Inc., 404 U.S. 412, 415, 92 S. Ct.
574, 576, 30 L. Ed. 2d 567 (1972). Accordingly, an assertion of mootness will be
rejected “only when there is a substantial likelihood that the offending policy will
18
be reinstated if the suit is terminated.” Troiano, 382 F.3d at 1284 (citing City of
Mesquite v. Aladdin’s Castle, 455 U.S. 283, 289 & n.11, 102 S. Ct. 1070, 1074–75
& n.11, 71 L. Ed. 2d 152 (1982), a case where the Court decided that a challenge
to a city statute was not moot, because even though the city had repealed the
statute, there was “no certainty” that the city would not reenact the law and the
city had announced its intention to reenact the offending statute if the Court
dismissed the case.).
To support its argument that the case is moot, the University has provided
an affidavit of Jamie Lewis Keith, Vice President and General Counsel of UF. In
her affidavit, Keith states that on January 15, 2009, “UF fully registered Beta
Upsilon Chi, Upsilon Chapter (‘BYX’) as a Registered Student Organization on
par with the hundreds of other RSOs at UF.” She further avers:
The University’s decision to modify its policies relating to RSOs was
a considered decision, as described in the University’s attached
statement, and was made with the approval of the chief executive
officer of the University of Florida, President J. Bernard Machen.
The University’s modified policies have already taken effect and UF
fully intends to apply these modified policies going forward.
(Id. at ¶ 5.)
The University has modified the Policy in the CSAI Handbook, registered
BYX’s chapter, and stated its intention to adhere to its modified policies. BYX
19
speculates that UF amended the Policy as a ploy to avoid an adverse ruling, and
UF may reinstate its former policy and strip BYX of its RSO status if the court
dismisses the appeal. BYX has failed to present any affirmative evidence to
support this position, and we are not persuaded by such speculation. We hold that
BYX cannot overcome the presumption that the “objectionable behavior will not
recur.” Troiano, 382 F.3d at 1283.
BYX’s argument is further undermined by its own pleadings in this case. In
its complaint, BYX prayed for “[a] preliminary and permanent injunction
enjoining [UF] from denying to BYX [RSO] status.” (Second Am. Compl. at 27.)
Again, in its motion for preliminary injunction, BYX requested that the court
“[p]reliminarily enjoin [UF] . . . from enforcing [its] Constitutional Guidelines and
other University policies to preclude BYX from requiring that officers and
members agree with the groups [sic] religious beliefs” and “[p]reliminarily enjoin
[UF] . . . from denying to BYX the status, rights, and privileges of an [RSO]
recognized by the University.” The motion did not specify the manner in which
UF would grant this relief, nor did BYX mount a facial challenge to the text of the
Regulation. It merely challenged UF’s refusal to register the BYX chapter as an
20
RSO. The chapter has been registered, and we will not review the manner in
which UF accomplished the registration.11
In its final attempt to persuade us to retain jurisdiction over this appeal,
BYX posits a hypothetical concerning UF’s amended nondiscrimination policy.
BYX notes that it requires potential members to agree with its view of the
Christian faith and to conduct their lives in strict accordance with its code of
conduct. The modified Policy provides that student organizations may consider
the “sincerely held current religious beliefs” of prospective members and leaders,
but is silent as to whether these organizations may consider their conduct
(emphasis added). So, the hypothetical goes, “if a student professes to agree with
BYX’s religious beliefs but repeatedly gets drunk or engages in extramarital
sexual conduct, it is simply unclear whether BYX is permitted to deny or expel
this person from membership.” (Appellant’s Resp. to Appellee’s Mot. to Dismiss
Appeal at 20.) We will not consider the hypothetical. We lack the power to retain
11
For its part, UF responds that there is no need for it to amend the Regulation. It notes
that the Regulation does not address how UF’s general and aspirational commitment to non-
discrimination will be implemented and applied to registering student organizations. The CSAI
Handbook sets forth the policy that implements the Regulation in the context of deciding whether
to register a student organization. Because the CSAI Handbook policy has changed its
implementation policy with regard to student organizations like BYX, BYX can become an RSO.
What is critical for our purposes is not that UF has stated through the Regulation that it aspires to
create and sustain a nondiscriminatory environment, but that it has decided against enforcing this
policy in a way that denies the BYX chapter RSO status.
21
jurisdiction over a moot controversy for the purpose of rendering an advisory
opinion. CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 622 (1st
Cir. 1995).
III.
Our consideration of this case is at an end. Because the relief BYX sought
has now been obtained, we lack a live controversy. The University’s motion to
dismiss this appeal for mootness is accordingly granted. The order of the district
court denying BYX’s motion for a preliminary injunction is vacated, the case is
remanded, and the district court, on receipt of our mandate, shall dismiss the case
as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95
L.Ed. 36 (1950).
SO ORDERED.
22