Young America's Found. v. Kaler

Citation: 370 F. Supp. 3d 967Docket: Case No. 18-cv-1864 (SRN/HB)

Court: District Court, D. Maine; February 25, 2019; Federal District Court

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The case involves a conflict between the First Amendment rights of public university student groups and guest speakers and the authority of public universities to regulate their facilities in support of their educational missions. Plaintiffs, including the University of Minnesota student group Students for a Conservative Voice, the Young America's Foundation, and conservative commentator Ben Shapiro, challenge the University of Minnesota's policy on 'large-scale events' both 'as-applied' and 'facially' under the First and Fourteenth Amendments. The 'as-applied' challenge specifically addresses the application of this policy to Shapiro's speech on February 26, 2018. 

Defendants filed a motion to dismiss the claims, which the Court partially granted and partially denied. The motion was granted regarding the Plaintiffs' 'facial' First Amendment challenge and their Fourteenth Amendment Due Process and Equal Protection claims. However, the Court denied the motion concerning the 'as-applied' First Amendment challenge. 

The plaintiffs consist of Young America's Foundation (a nonprofit promoting conservative viewpoints), Students for a Conservative Voice (a registered student organization at the University of Minnesota), and Ben Shapiro (a conservative commentator). The defendants include University President Eric W. Kaler, Vice President of University Services Michael Berthelsen, Chief of Police Matthew Clark, Lieutenant Troy Buhta, and Assistant Director of Student Unions and Activities Eric Dussault, all of whom have roles in the enactment or enforcement of university policies affecting student speech.

The litigation involves the University of Minnesota's 'Large-Scale Events Process' (LSEP), which governs how registered student groups can host large-scale events on campus. A 'large-scale event' is defined as one that occurs in a significant venue and attracts a large audience or poses security concerns. While student groups can reserve venues, such reservations require approval from the Large-Scale Events Committee (LSEC), which consists of representatives from various university departments, including the police and student activities. To gain this approval, student groups must submit a detailed 'Large Scale Event Proposal' and may need to meet with the LSEC. Approval is contingent on factors like other campus events, necessary resources, and the event's impact on both the campus community and the surrounding area.

The plaintiffs contend that the LSEP is unconstitutional under the First and Fourteenth Amendments, arguing that it lacks objective criteria for decision-making and does not sufficiently limit university officials' discretion regarding event restrictions. Additionally, the excerpt mentions a planned lecture by Ben Shapiro organized by the Student Conservative Voice (SCV) with assistance from Young America’s Foundation (YAF), scheduled for February 26, 2018. SCV sought to bring Shapiro to campus due to perceived unfair treatment of his viewpoints by university faculty and administrators. Notice of this intention was given to the university in October 2017.

Defendant Dussault informed SCV that the Shapiro event would be subject to the LSEP and promised follow-up meetings. Plaintiffs claim that Defendants had previously relocated one of SCV's events without permission, prompting SCV to reserve multiple rooms on the Minneapolis campus to ensure a suitable venue for Shapiro’s speech. They requested reservations for locations with capacities between 450 and 4,000 attendees. By December 6, 2018, two of the reserved rooms, Mayo Hall (455 seats) and Willey Hall (1,056 seats), were available. SCV formally requested Willey Hall, emphasizing their preference for the Minneapolis campus due to its convenience for students and concerns about attendance if the event were held on the St. Paul campus, which is less frequented by students and has limited evening bus service. Despite these considerations, Defendants decided to hold the event at a St. Paul venue with a maximum capacity of 500, citing security issues from past lectures. This decision was reportedly supported by various university officials, who raised concerns about Willey Hall's safety due to its access to the Skyway.

Lieutenant Buhta criticized the University’s decision to relocate Mr. Shapiro’s speech to the St. Paul campus, labeling it 'unfortunate.' Plaintiffs argue that the University's security concerns were unfounded and served as a pretext to marginalize Mr. Shapiro's 'controversial' conservative views by moving the event to a less prominent location, thereby reducing visibility. They point out that the University routinely limits access to the West Bank Skyway, yet had successfully hosted numerous liberal public figures in central locations. In response to the relocation, the Students for a Conservative Voice (SCV) booked the North Star Ballroom, which quickly sold out, generating considerable interest. After renewing their request for the larger Willey Hall, a Board of Trustees member sought clarification about the situation, leading to a press conference aimed at justifying the refusal to accommodate SCV's request. Following this press conference, SCV did not pursue moving the event again, and Mr. Shapiro spoke to approximately 450 attendees in the North Star Ballroom. Plaintiffs contend that the University's actions hindered their ability to reach a broader audience and deprived students of engaging in an important dialogue, noting that only a small number of protestors appeared at the event. As a result of these experiences, SCV has reportedly self-censored and refrained from inviting speakers whose views may be deemed objectionable or controversial.

On July 3, 2018, the Plaintiff filed a complaint against the Defendants, alleging violations of the First and Fourteenth Amendments concerning the LSEP, seeking damages and a permanent injunction against the enforcement of the LSEP to protect lawful First Amendment activities at the University. The Defendants moved to dismiss the complaint on August 22, 2018, leading to a full briefing and oral argument held on November 30, 2018.

Under Federal Rule of Civil Procedure 8, a complaint must provide a short and plain statement of the claim, while Rule 12(b)(6) necessitates that it includes sufficient factual matter for a plausible claim to survive dismissal. The standard for plausibility requires more than mere possibility of unlawful action. 

The Defendants raised various procedural and substantive objections, including claims that the Plaintiffs lacked standing and failed to connect certain Defendants to the decision regarding the Shapiro speech. The Court will first address these procedural arguments, then evaluate the merits of the Plaintiffs' First Amendment claim, including its facial and as-applied aspects, and the related defenses of qualified immunity. Subsequently, the Court will assess the Plaintiffs' Fourteenth Amendment Due Process and Equal Protection claims, including applicable defenses. Ultimately, the Court determined that while some claims were plausible, others were not.

Article III of the Constitution restricts federal court jurisdiction to actual 'Cases' and 'Controversies,' necessitating that plaintiffs demonstrate 'standing' to assert claims. This requires showing: 1) an 'injury in fact' that is actual or imminent; 2) a causal connection between the injury and the defendant's conduct; and 3) that the injury is likely to be redressed by a favorable court decision. Furthermore, plaintiffs must establish standing for each claim and form of relief sought. The defendants challenge the standing of two plaintiffs, YAF and Mr. Shapiro, arguing they lack standing for both injunctive and retrospective relief due to insufficient allegations regarding their involvement in the venue reservation process or intent to return to the University of Minnesota. The court concurs with the defendants regarding the lack of standing for prospective relief, as no claims of 'self-censorship' were made. However, the court concludes that YAF and Mr. Shapiro have standing for retrospective relief, as the complaint asserts that their ability to deliver their message was hindered by the defendants' actions. This assertion meets the lenient standing requirements for First Amendment claims, emphasizing that funding speech also constitutes a legitimate interest under the First Amendment.

The Court partially grants and partially denies the Defendants' motion regarding standing. In constitutional lawsuits, state employees can be sued in their official or individual capacities. Official capacity claims allow for injunctive or declaratory relief but not monetary damages, as such suits are effectively against the state entity represented by the employee. To assert a claim in this context, a plaintiff must demonstrate that the official acted under an unconstitutional policy or had final authority that was misused. Conversely, individual capacity claims permit recovery of damages if the plaintiff shows that the official personally violated their constitutional rights or was involved in creating or enforcing unconstitutional policies. 

The Defendants contend that the Plaintiffs' claims lack sufficient allegations of personal involvement for both capacities. The Plaintiffs counter by citing specific allegations indicating the Defendants' responsibility for the LSEP and their involvement in decisions related to the Shapiro speech. The Court agrees with the Defendants regarding President Kaler but finds sufficient grounds for personal involvement concerning Chief of Police Clark and Vice President Berthelsen. The Court emphasizes the need to consider the record without discovery and allows reasonable inferences from the Plaintiffs' allegations, but it also clarifies that mere possibilities are insufficient to keep high-ranking officials in litigation.

The Court determines that the Complaint sufficiently alleges personal involvement of Clark and Berthelsen in the LSEP related to the Shapiro speech. Clark is implicated by an email explaining the administration's decision to prevent Shapiro from speaking, which he communicated to Lieutenant Buhta for further action. Berthelsen’s involvement is suggested by his department’s role in enforcing the LSEP and a contemporaneous press conference held by another Vice President justifying the speech's relocation. In contrast, the allegations against President Kaler fail to establish personal involvement, as his general responsibility does not equate to direct action regarding the LSEP or the Shapiro speech. The Court finds no reasonable inference that Kaler had knowledge of subordinates' actions related to the speech, although dismissal is without prejudice should evidence arise indicating his involvement. The Court partially grants and partially denies the Defendants' motion concerning personal involvement. Additionally, the Plaintiffs' claims are viewed as both a 'facial' challenge to the LSEP and an 'as-applied' challenge regarding its execution during the Shapiro event. The Court plans to analyze these claims while first establishing the appropriate legal standard for reviewing the First Amendment issue.

The First Amendment protects virtually all non-violent political speech, even if it is hurtful or offensive. This protection extends to public universities, as they are state entities where the risk of chilling individual thought and expression is significant. While public universities must uphold the First Amendment, they also have the authority to regulate the use of their property in alignment with their educational mission. Federal courts acknowledge that universities can impose reasonable regulations on the use of campus facilities and are not required to provide equal access to all individuals or groups. Both university property and programming are generally considered "limited public forums," as they are primarily intended for specific uses by designated groups, such as students and faculty, or for particular topics, like university-sponsored events. This balance recognizes the rights of individual speakers while respecting the property rights and educational objectives of the university.

In a limited public forum, states can impose reasonable restrictions on First Amendment-protected speech, provided these do not discriminate based on viewpoint. The Eighth Circuit recognizes an exception where a university opens part of its campus for expressive conduct without limiting speech types; this area is classified as a designated public forum. In designated public forums, restrictions are scrutinized under the traditional public forum standard, invoking strict scrutiny for content-based restrictions. For example, the Eighth Circuit deemed common areas outside the University of Arkansas's student union as designated public forums due to the lack of evidence suggesting limitations on speech types. The court distinguishes cases cited by the Plaintiffs advocating for stricter scrutiny, noting that those involved traditional public forums or are otherwise distinguishable. The court agrees with the Defendants that the LSEP (Limited Speech Event Policy) falls under limited public forum analysis, as the venues in question are not treated as designated public forums for speech and expressive activities.

Recent cases challenging university policies under the First Amendment predominantly utilize the 'limited public forum' framework. Key cases illustrating this include Martinez, Rosenberger, Gerlich, Bloedorn, and others. Although the plaintiffs argue that a 'designated public forum' analysis is appropriate due to the LSEP's application to publicly accessible areas, this assertion is incorrect. The LSEP is designed to restrict large-scale events by requiring prior university approval, indicating that the university has not created an open forum for public use. The state's intentions are paramount in forum analysis, with the establishment of a public forum requiring intentional openings for discourse rather than mere tolerance of limited speech. The Eighth Circuit has previously dismissed distinctions between plaintiffs excluded from a forum and those within it regarding First Amendment protections. Additionally, the Supreme Court's recent rulings confirm that 'limited public forum' analysis applies even to student plaintiffs intended to benefit from such forums. Consequently, the Court will assess the plaintiffs' First Amendment claim under the 'limited public forum' standard. The plaintiffs are pursuing a facial challenge to the LSEP, seeking injunctive relief against its enforcement, but facial challenges in this context are generally disfavored.

Facial invalidation of statutes or regulations is a significant legal action that should be employed sparingly, particularly in educational contexts. The Eighth Circuit and the Supreme Court have not imposed strict judicial oversight on school officials managing limited educational forums. In evaluating whether the LSEP (Large-Scale Event Policy) is constitutionally valid, two criteria are considered: (1) whether the policy is reasonable given its purpose, and (2) whether it discriminates based on viewpoint. The Supreme Court emphasizes that restrictions in a limited public forum do not need to be the most reasonable option, and access control can depend on various factors, including the nature of speech and practical management needs. Courts must respect educational authorities' discretion in policy-making.

In this case, the Complaint does not convincingly argue that the LSEP imposes an unreasonable burden on campus speech. The policy requires registered student groups to secure support from the LSEC (Large Scale Events Committee) for reserving large venues and allows consideration of multiple factors, including other campus events and resource availability, to ensure effective management and safety. The LSEP acts as a permit requirement, which is deemed reasonable given the university's interests in safety, minimizing disruption, and managing limited space effectively.

Numerous courts have upheld "permit requirements" for activities on university campuses, regardless of whether assessed under a "limited public forum" or "designated public forum" standard, as evidenced by cases such as Bloedorn, Bowman, and Riemers. The rationale for these requirements, as supported by the Supreme Court in Thomas, includes the need for government to manage limited space, ensure safety, prevent unlawful activities, and maintain accountability for damages. The plaintiffs argue that the LSEP is unreasonable because it applies universally across the University of Minnesota campus, claiming it does not provide ample alternative means for expression, particularly for the group SCV. However, this argument is countered by the view that the LSEP is merely a procedural requirement for hosting large events, causing minimal obstruction to the plaintiffs' messaging capabilities. The court notes that university students have various means to communicate without official support. The plaintiffs’ dissatisfaction with potential venue restrictions does not equate to a First Amendment violation, as unrestricted access to a limited public forum is not guaranteed. Furthermore, while reasonable restrictions can be imposed, any regulation that serves as a pretext for viewpoint discrimination is impermissible. A policy is deemed viewpoint neutral if it does not differentiate based on ideology or opinion, reflecting the principles established in cases like Widmar and Rosenberger.

A university policy may be deemed discriminatory based on viewpoint if it grants excessive discretion to officials controlling speech, as highlighted in Roach. Without clear standards, officials could make arbitrary decisions based on speech content. In a relevant case involving Oregon State University, the Ninth Circuit identified "unbridled discretion" in a poorly defined policy restricting newspaper distribution. Although the LSEP is formally viewpoint-neutral, Plaintiffs argue it risks viewpoint discrimination due to its broad discretion in determining event compliance, approvals, and imposing restrictions such as location, timing, and fees, all without written justification or an appeals process. The Court counters this argument by noting that previous cases of "unbridled discretion" typically pertained to state regulations in traditional public forums, which may not fully apply here. Assuming relevance, the LSEP includes sufficient criteria for guiding the discretion of the LSEC, focusing solely on "student group sponsored large-scale events" and providing specific examples. The LSEC's discretion is also guided by considerations of other campus events and community impact. The LSEP emphasizes collaboration among student groups, administration, and campus stakeholders, which mitigates concerns over the absence of a formal appeals process, as supported by prior rulings.

The policy in question was developed with input from various sources, and existing case law supports its validity against "unbridled discretion" challenges. Recent rulings indicate that such challenges to university policies have generally been rejected, even when similar broad language is used. For example, in Southworth v. Board of Regents of University of Wisconsin, a policy allowing discretion in funding allocation was upheld, while other cases highlighted the rejection of challenges when policies were poorly defined or lacked established criteria.

A recent Northern District of California case upheld the University of California-Berkeley's Major Events Policy, which included specific terms related to campus safety and security, suggesting it did not grant excessive discretion. Conversely, a predecessor policy was found potentially problematic due to its lack of written standards.

The plaintiffs failed to provide sufficient allegations that the LSEP (the policy in question) grants the University excessive discretion that could lead to viewpoint censorship, referencing the Supreme Court's deference to university officials in managing programs and facilities. Consequently, the court granted the defendants' motion regarding the plaintiffs' facial First Amendment challenge.

Regarding the plaintiffs' as-applied First Amendment challenge, they argued that Mr. Shapiro's speech was relocated to the St. Paul campus not due to legitimate security concerns but because his conservative views were perceived as controversial on a liberal campus. They posited that even if the defendants did not personally oppose his speech, moving it to appease liberal constituents without genuine security justification could constitute viewpoint discrimination.

In a limited public forum, concerns about a "heckler's veto" can constitute viewpoint discrimination if they are based on speculative fears of negative audience reactions or if only one side of a controversial debate is silenced. The case Burnham v. Ianni establishes that it is unconstitutional to limit speech merely due to objections to a speaker's viewpoint. Defendants argue that their actions were solely to ensure campus security and maintain the educational environment, claiming that the Plaintiffs failed to demonstrate a connection between potential protestor views and their decisions. However, the Court finds that the Plaintiffs' allegations, viewed favorably, suggest their controversial viewpoint may have influenced the Defendants' actions regarding the speech by Mr. Shapiro. Specifically, the Complaint asserts that the decision to relocate the event was made two months prior without specific information about potential protests, indicating the possibility that the move was based on objections to Mr. Shapiro's viewpoint. Additionally, the Complaint highlights that liberal speakers were permitted to speak in prominent locations despite security needs, while Mr. Shapiro, a conservative speaker, faced restrictions due to purported security concerns. This differential treatment raises plausible allegations of viewpoint discrimination, supported by Eighth Circuit precedent that warns against imposing unique scrutiny on speakers based on their viewpoints.

University officials' motion for summary judgment on a First Amendment claim was denied due to the heightened scrutiny they applied to a pro-marijuana student group's application to use the university's trademark. The court rejected the officials' argument for qualified immunity, emphasizing that even if the alleged facts suggest a violation of First Amendment rights, the constitutional right must have been "clearly established" by late December 2017 for the claim to be dismissed. The court noted that while specific precedents are not always necessary for establishing a right, officials must have had "fair warning" that their actions could be unconstitutional. The officials argued that there was no clearly established right for student groups to reserve campus buildings for outside speakers and claimed that their decision to relocate an event for security reasons did not violate the Constitution. In contrast, the plaintiffs asserted that the Constitution protects free speech on public university campuses against arbitrary restrictions and viewpoint discrimination. The court acknowledged that both the Supreme Court and the Eighth Circuit recognize the prohibition of viewpoint discrimination in limited public forums created by universities. However, due to unresolved factual disputes regarding the motivation behind the officials' decision to move the event, the court decided to postpone determining whether the law was clearly established until a proper factual record was developed at the summary judgment stage.

A ruling against the defendants at this early litigation stage would improperly frame the case's context by incorporating genuinely disputed factual issues. The court references *Tolan* and *Young America's Foundation*, emphasizing the need for a fully developed record before addressing qualified immunity concerning the plaintiffs' as-applied First Amendment claim. The Fourteenth Amendment's Due Process Clause prohibits state actors from depriving individuals of life, liberty, or property without due process. A statute that may infringe on First Amendment rights can violate due process if it lacks clarity, failing to provide fair notice or encouraging discriminatory enforcement, as established in *Holder v. Humanitarian Law Project*. The Eighth Circuit previously invalidated vague school regulations threatening First and Fourteenth Amendment rights, but has indicated that the "void-for-vagueness" doctrine applies less rigorously to policies with minor consequences, as seen in *Powell v. Ryan* and *Keating v. University of South Dakota*. The court determined that the vagueness doctrine is inapplicable where no sanctions are imposed, including in *Bandy v. Commission of Corrections*. Plaintiffs have reframed their First Amendment challenge regarding "unbridled discretion" into a Fourteenth Amendment "void-for-vagueness" challenge, arguing that the vagueness of the LSEP terminology prevents students from effectively structuring event requests and allows for discriminatory decision-making by the defendants.

Vagueness in the LSEP has led student groups to avoid speaking altogether. The void-for-vagueness doctrine, critical in First Amendment cases, suggests that unclear regulations can deter lawful speech. Defendants argue that this doctrine does not apply since the LSEP imposes no penalties other than potentially preventing an event from occurring. The Court concurs, indicating skepticism about the applicability of the doctrine based on Eighth Circuit law. While the LSEP affects First Amendment rights by requiring procedural compliance for student speech, it does not impose sanctions typically associated with protected speech. Unlike the case of Stephenson, where a school policy threatened severe consequences for protected speech, the LSEP merely results in logistical consequences like rescheduling. There are no credible claims that the LSEP is unclear or encourages discriminatory enforcement.

The Court also addresses the Fourteenth Amendment Equal Protection claim, emphasizing that the Equal Protection Clause prohibits state actors from denying equal protection under the law. If a state actor classifies individuals based on a suspect class or infringes on constitutional rights, such actions are subject to strict scrutiny. The Court highlights the intertwined nature of the Equal Protection Clause and the First Amendment's prohibition on viewpoint discrimination, asserting that government cannot favor certain viewpoints over others in public forums. Consequently, the Court grants Defendants' motion regarding the Plaintiffs' Due Process claim.

In *Police Dep't of Chicago v. Mosley*, the court examined the interplay between Equal Protection claims and First Amendment claims, noting that some out-of-circuit courts have suggested that the evaluation of viewpoint discrimination under the First Amendment often informs the Equal Protection analysis. While there is limited precedent addressing the Equal Protection clause in the context of as-applied student free speech claims within a limited public forum, the court determined that qualified immunity shields the defendants from liability regarding the Equal Protection claim. The court emphasized that there was no "clearly established law" that would have informed the defendants of a potential violation of the Equal Protection clause at the time of their actions in December 2017. Consequently, the court could not find sufficient precedent to support the plaintiffs' claims. As a result, the court granted the defendants' motion to dismiss the Equal Protection claim and also dismissed the plaintiffs' facial First Amendment challenge, Fourteenth Amendment Due Process claim, and Equal Protection claim with prejudice. The plaintiffs' as-applied First Amendment claim against Defendant Eric Kaler was dismissed without prejudice. The court's ruling included partial grants and denials on motions to dismiss and amend the complaint.

Plaintiffs may seek to re-join President Kaler as a Defendant if evidence emerges of his personal involvement in the case, as allowed by Fed. R. Civ. P. 20. They are required to file an Amended Complaint within seven days, including only the surviving claim and relevant allegations, with Defendants obligated to respond within 14 days. Plaintiffs previously sought to amend their complaint to elaborate on their claims, which Defendants opposed, arguing that even if the allegations were accepted as true, they did not establish plausible constitutional violations. The Court granted the amendment concerning Plaintiffs' "as-applied" First Amendment claim but denied it for other claims, deeming further amendments futile.

The Court acknowledged that while the Eighth Circuit's stance on the "unbridled discretion" doctrine in educational contexts is unclear, it will consider the argument because other circuits have upheld its applicability to limited public forums. The Court noted differences between the more detailed criteria in student group funding cases and the simpler Local Student Event Policy (LSEP) at issue, emphasizing that the LSEP involves less complexity. 

Defendants submitted evidence suggesting security concerns had been raised before a specific event, which they argued refuted Plaintiffs’ claims. However, the Court declined to consider this extrinsic document at the dismissal stage, adhering to the principle that courts should not evaluate materials outside the pleadings. The Court distinguished this case from a similar one at UC-Berkeley, where security risks were clearly established due to prior violent protests, which was not the case here.