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BLACKMUN, J., dissenting

IV

By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue. I dissent.

JUSTICE BLACKMUN, dissenting.

I would not vacate the stay granted by the United States Court of Appeals for the Fifth Circuit until this Court decides Pulley v. Harris, No. 82-1095, argued today. I share JUSTICE BRENNAN's view that the resolution of the proportionality issue presented in Pulley inevitably will have some bearing on the proportionality issue raised by Robert Wayne Williams. To be sure, the decision forthcoming in Pulley v. Harris may or may not be favorable to Williams. However that may be, by vacating the stay, the Court today summarily decides the issue against Williams and, to that extent, pre-empts Pulley.

(1968). See also Bumper v. North Carolina, 391 U. S. 543, 545, and nn. 5, 6 (1968). That conclusion, however, was reached 15 years ago, and recent cases and scholarship suggest that it may need to be reexamined. See, e. g., Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark. 1983); Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982). An evidentiary hearing on this issue is clearly necessary.

BLACKMUN, J., dissenting

464 U. S.

It seems to me that standards of orderly procedure require that the stay of execution granted by the Fifth Circuit remain in effect until Pulley is decided. I therefore dissent from what appears to be an untoward rush to judgment in a capital

case.

Syllabus

IRON ARROW HONOR SOCIETY ET AL. v. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 83-118. Decided November 14, 1983

Petitioner Iron Arrow Honor Society (hereafter petitioner), an all-male honorary organization at the University of Miami, has traditionally conducted its initiation "tapping" ceremony on the University's campus. In 1976, the Secretary of Health, Education, and Welfare (HEW) notified the University that the HEW had determined that the University was violating an HEW regulation implementing § 901(a) of Title IX of the Education Amendments of 1972 and prohibiting a university that receives federal funds from giving "significant assistance" to any organization that discriminates on the basis of sex in providing any aid, benefit, or service to students. The University thereafter prohibited the "tapping" ceremony. Petitioner then brought an action in Federal District Court, seeking to prevent the Secretary from interpreting the regulation so as to require the University to ban petitioner's activities from campus. Before the Court of Appeals ultimately affirmed a summary judgment for the Secretary, the president of the University wrote a letter to petitioner stating that it could not return to or conduct its activities on campus until it discontinued its discriminatory membership policy, and that this was the University's position regardless of the outcome of the lawsuit. The Court of Appeals held that the letter did not moot the case because it could still grant some relief to petitioner.

Held: The president's letter renders the case moot, and the Court of Appeals had no jurisdiction to decide it.

(a) To satisfy the Art. III case-or-controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision. Here, no resolution of the dispute can redress petitioner's grievance. Whatever the correctness of the Secretary's interpretation of the regulation in question, the University has stated unequivocally that it will not allow petitioner to conduct its activities on campus as long as it refuses to admit women. It is the University's

action, not that of the Secretary, that excludes petitioner.

(b) Whether or not the Court of Appeals could grant relief to petitioner against an enforcement action other than one seeking to ban petitioner from campus, need not be decided, as the Secretary is not request

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ing the University to take such additional steps and petitioner has not sought in this lawsuit to prevent the University from doing so.

(c) Since this case concerns the effect of the voluntary acts of a thirdparty nondefendant, it is not controlled by the line of cases in which it has been held that the voluntary discontinuance of challenged activities by a defendant does not moot the lawsuit absent proof that "there is no reasonable likelihood that the wrong will be repeated." But even assuming that such line of cases applies, it does not appear on the basis of the letter in question that there is any "reasonable likelihood" that the University will change its mind and decide to invite petitioner to return to campus.

Certiorari granted; 702 F. 2d 549, vacated and remanded.

PER CURIAM.

Petitioner Iron Arrow Honor Society is an all-male honorary organization founded by the first president of the University of Miami to honor outstanding University men. Traditionally, the Society has conducted its initiation ceremony on a "tapping" mound outside the student union building on University property. In 1972 Congress enacted § 901(a) of Title IX of the Education Amendments, 86 Stat. 373, 20 U. S. C. § 1681(a), and in 1974 the Department of Health, Education, and Welfare promulgated regulations implementing the statute. Regulation 86.31(b)(7) provides that “a recipient [of federal funds] shall not, on the basis of sex: . . . (7) [a]id or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees." 45 CFR §86.31(b)(7) (1975) (emphasis added) (recodified at 34 CFR § 106.31(b)(7) (1982)).

In 1976 the Secretary notified the University's president of its determination that the University was rendering "significant assistance" within the meaning of the regulation to Iron Arrow. The University advised the Secretary that it wished to comply with Title IX, but asked for time to negotiate with Iron Arrow about changing its membership policy; the Secretary agreed, but only upon the condition that the University

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ban the "tapping" ceremony on campus until the question was resolved.

The University thereafter prohibited the "tapping" ceremony, and Iron Arrow responded by suing the Secretary in the United States District Court for the Southern District of Florida. It sought declaratory and injunctive relief to prevent the Secretary from interpreting Regulation 86.31(b)(7) so as to require the University to ban Iron Arrow's activities from campus. The District Court held that Iron Arrow had no standing to challenge the Secretary's action and the regulations, but this determination was reversed by the Court of Appeals for the Fifth Circuit. Iron Arrow Honor Society v. Califano, 597 F. 2d 590, 591 (1979). The District Court then granted summary judgment for the Secretary, Iron Arrow Honor Society v. Hustedler, 499 F. Supp. 496 (1980), and the Court of Appeals for the Fifth Circuit affirmed. Iron Arrow Honor Society v. Schweiker, 652 F. 2d 445 (1981). We granted Iron Arrow's petition for certiorari, vacated the decision of the Court of Appeals for the Fifth Circuit, and remanded for further consideration in light of North Haven Board of Education v. Bell, 456 U. S. 512 (1982). Iron Arrow Honor Society v. Schweiker, 458 U. S. 1102 (1982). On remand the Court of Appeals for the Fifth Circuit again affirmed with one judge dissenting. 702 F. 2d 549 (1983).

After our remand but before the decision of the Court of Appeals for the Fifth Circuit, the president of the University wrote a letter to the chief of Iron Arrow. It stated the University's unequivocal position that Iron Arrow cannot return to campus as a University organization nor conduct its activities on campus until it discontinues its discriminatory membership policy. Letter from Edward T. Foote II to C. Rhea Warren (Sept. 23, 1982), reprinted in App. to Brief for Federal Respondents, 1a-4a. The Trustee Executive Committee had adopted that position on July 15, 1980, determining that Iron Arrow may return to campus only if it satisfies the code for all student organizations, a code which includes a policy of nondiscrimination. The president's letter moreover

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