College Republicans at San Francisco State v. Reed

• Citation: 523 F.Supp.2d 1005
• Decision Date: 19 November 2007
• Docket Number: No. C 07-3542WDB.,C 07-3542WDB.
• Parties: COLLEGE REPUBLICANS AT SAN FRANCISCO STATE UNIVERSITY., et al., Plaintiffs v. Charles B. REED, et al., Defendants.
• Court: U.S. District Court — Northern District of California

523 F.Supp.2d 1005

COLLEGE REPUBLICANS AT SAN FRANCISCO STATE UNIVERSITY., et al., Plaintiffs v. Charles B. REED, et al., Defendants.

No. C 07-3542WDB.

United States District Court, N.D. California.

November 19, 2007.

David Jonathan Hacker, Alliance Defense Fund, Folsom, CA, David French, Travis Christopher Barham, Alliance Defense Fund, Columbia, TN, Nathan Wesley Kellum, Alliance Defense Fund, Memphis, TN, for Plaintiffs.

Andrea Marie Gunn, Christine Helwick, California State University, Office of General Counsel, Long Beach, CA, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

WAYNE D. BRAZIL, United States Magistrate Judge.

The central issues that we' address in the pages that follow are these: does a public university violate the First Amendment¹ if its regulations purport to empower it to punish students (1) on the undifferentiated ground that their behavior was "inconsistent with [the university's] goals principles, and policies," or (2) for engaging in conduct that is not. "civil." We also consider whether the First Amendment permits a university to proscribe "intimidation" or "harassment" that appears to threaten or endanger another person's safety.

Plaintiffs are an organization, College Republicans at San Francisco State University ("SFSU"), and two of the organization's members. Defendants are administrators with either the ... California State University System ("CSU") or with SFSU. Plaintiffs have filed a motion asking the court to issue a preliminary injunction that would prohibit the defendants from enforcing two provisions of the Student Conduct Code and one provision in the SFSU Student Organization Handbook. In support of their request, plaintiffs contend that each of the provisions they challenge is unconstitutionally overbroad and vague.²

For the reasons set forth below, the Court GRANTS in part and DENIES in part plaintiffs' Motion for Preliminary Injunction.

I BACKGROUND

A. Factual and Procedural History

This action arose from an investigation launched by SFSU following an on-campus "Anti-Terrorism Rally" on Tuesday, October 17, 2006. The rally was sponsored by plaintiff College Republicans at San Francisco State University. College Republicans is a student organization founded at SFSU in 2003; it is a local chapter of a national organization known as the College Republicans National Committee. Plaintiffs Leigh Wolf and Trent Downes are officers of the local organization.

Plaintiffs assert that the purpose of their Anti-Terrorism Rally was to educate members of the campus about domestic and international terrorism, to memorialize those who have been victims of recent terrorist attacks, to identify prominent terrorist organizations around the world, and to trigger a dialogue about how properly to respond to these groups. The rally took place at mid-day at the Malcolm X Plaza on the SFSU campus and consisted of visual displays, speeches by students, and music. For one of the visual displays, members of the College Republicans exhibited two pieces of butcher paper, one depicting the flag of Hamas, a Palestinian Organization, and the other depicting the flag of Hezbollah, a Lebanese organization. Both of the flags included words in Arabic script, one of which was "Allah." Plaintiffs assert that when they began their rally they did not know that the script on either replicated flag included the word "Allah."

At one point during the rally, members of the College Republicans placed the paper depictions of the Hamas and Hezbollah flags on the ground and began stepping on them. A few students in the large group that had gathered to watch the event voiced strong objections to the College Republicans stepping on flags that included the word "Allah." In response, the College Republicans allowed several students to use marking pens to try to cover or block out the word about which feelings were so strong. These attempts were not completely successful. Ultimately, the College Republicans permitted one of the offended students from the audience to take the Harms flag off the stage. The Hezbollah flag remained.

As the rally progressed, SFSU students and members of the College Republicans continued a heated debate about the significance of the word "Allah" on the flags and the propriety of the way the College Re publicans had chosen to communicate their political views. University Police were present in Malcolm X Square during the rally to ensure student safety, but it never became necessary for them to intervene. The rally came to a peaceful close — but the emotions it had ignited continued to fester.

On October 26, 2006, one week after the rally, an SFSU student, Brian Gallagher, submitted to Defendant Joey Greenwell, the Director of the Office of Student Programs & Leadership Development ("OSPLD"), a formal letter of complaint against the College Republicans for their actions during the rally. Among other things, Mr. Gallagher decried the fact that members of the organization "very evidently walked over and trekked over a banner with Arabic script ... [that] represented the word `Allah,' otherwise known as the name of God in Arabic." See October 26, 2006, letter from B. Gallagher to J. Greenwell. Mr. Gallagher also asserted that the College Republicans:

[D]ebased and violated the following principles in [sic] which this university proclaims to be its standards. Why has a group of college students chosen to pursue such actions of incivility? I am at a loss for words and continue in my state of bewilderment as to why this route of intolerance and stupidity was chosen. Such actions do nothing but foment incivility and discourage critical analysis.

Id. (emphasis added). The letter went on to say that Mr. Gallagher "hope[d] this matter [would] be promptly dealt with in a judicious manner where justice will be served and wrongs made right." Id. At the end of his letter of complaint, Mr. Gallagher quoted Section 41301(a) of' the Code on "Standards for Student Conduct" — one of the provisions at issue in this lawsuit — which states, in part, that "students are expected to be ... civil to one another and to others in the campus community...." Id. (citing Cal.Code Regs. tit. 5, § 41301(a)) (emphasis added).³

Under rules that had been adopted earlier by SFSU, a letter of complaint like Mr. Gallagher's triggers a set of procedures that are set forth in the Student Organization Handbook that is promulgated by SFSU's Office of Student Programs and Leadership Development. See Exhibit A to the First Amended Verified Complaint, filed August 30, 2007. Under these procedures, the Director of OSPLD (currently Mr. Greenwell) is to respond initially to a complaint against a student organization by communicating the substance of the complaint to the organization and conducting an informal inquiry. With the information he gathers through this initial inquiry, the Director determines whether the matter is to be resolved either (1) through an informal process that fosters communication between the persons who have complained and the organization against whom the complaint was made or (2) by referring the complaint to the Student Organization Hearing Panel (SOHP) for a formal investigation and hearing. That Panel is empowered to impose discipline on a student organization if it concludes that the behavior of some of its members⁴ is "inconsistent with SF State goals, principles and policies." See Section on Student Group Misconduct in SFSU Student Organization Handbook, Section on Collective Responsibility. The disciplinary measures that the Panel is empowered to impose include "warning, censure, probation, suspension, or revocation of the organization's recognition." Id.

After receiving Mr. Gallagher's letter, Director Greenwell sent a formal notification to the College Republicans that advised them about the complaint. He stated that:

[T]he complaint describes alleged actions of walking on a banner with the word `Allah' written in Arabic script. The complaint also includes:

1.) Allegations of attempts to incite violence and create a hostile environment

2.) Allegations of actions of incivility. At this time the University policy being posed as allegedly violated includes:

Standards for Student Conduct California Code of Regulations Title V, § 41301

The University is committed to maintaining a safe and healthy living and learning environment for students, faculty, and staff. Each member of the campus community must choose behaviors that contribute toward this end. Student behavior that is not consistent with the Student Conduct Code is addressed through an educational process that is designed to promote safety and good citizenship and, when necessary, impose appropriate consequences.

(a) Student Responsibilities

Students are expected to be good citizens and to engage in responsible behaviors that reflect well upon their university, to be civil to one another and to others in the campus community, and contribute positively to student and university life.

See Email from J. Greenwell, dated October 30, 2006. Director Greenwell closed this formal notification by reminding the College Republicans where they could access the full Code of Conduct and informing them that a "meeting has been scheduled to meet with you and discuss the charges and process for ... November 2, 2006." Id.

What happened during that meeting (or even whether it took place) is not clear, but a few days later Mr. Gallagher submitted⁵ copies of emails from several other students who complained in a similar spirit about the way the College Republicans allegedly had disparaged the Muslim religion during their rally. According to Mr. Gallagher, these emails evidenced the "public outcry over actions taken by the College Republicans" at the rally on October 17th. See November 2006, emails from B. Gallagher to ASI Officers. One of these emails complained that "[n]o...