In Beta Upsilon Chi Upsilon v. J. Bernard Machen, in his official capacity as President of the University of Florida, et al. (08-13332), the Eleventh Circuit dismissed an appeal as moot and ordered the trial court to dismiss the case.
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 original manuscripts.” Accordingly, BYX bars from membership non-Christians, Roman Catholics, and adherents to the traditional Christian orthodoxy taught by the mainline Protestant denominations.
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The University of Florida permits and encourages student organizations to undergo its registration process and become Registered Student Organizations (“RSOs”)....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 “[t]his commitment applies in all areas,” including “to students.”
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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.
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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 would “significantly affect BYX’s ability to express itself—publicly or privately.” Machen, 559 F. Supp. 2d at 1278.
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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...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.
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On January 15, 2009, after we heard oral argument, the University announced that it had modified the Handbook Policy...[and] moved this court to dismiss this appeal for mootness.
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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...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...This is so even if, as here, the court has heard oral argument and has taken the case under advisement.
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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.”...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 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.
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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.
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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).
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