McGlone v. Bell

• Decision Date: 23 April 2012
• Docket Number: 10–6169.,Nos. 10–6055,s. 10–6055
• Citation: 280 Ed. Law Rep. 607,681 F.3d 718
• Parties: John McGLONE, Plaintiff–Appellant, v. Robert BELL; Ed Boucher; Mark Ochsenbein; Michael Lambert, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 718

280 Ed. Law Rep. 607

John McGLONE, Plaintiff–Appellant,

v.Robert BELL; Ed Boucher; Mark Ochsenbein; Michael Lambert, Defendants–Appellees.

Nos. 10–6055, 10–6169.

United States Court of Appeals,Sixth Circuit.

Argued: July 28, 2011.

Decided and Filed: April 23, 2012.^*

ARGUED:Nathan W. Kellum, Alliance Defense Fund, Memphis, TN, for Appellant. William J. Marett, Jr., Office of the Tennessee Attorney General, Nashville, TN, for Appellees. ON BRIEF:Nathan W. Kellum, Jonathan A. Scruggs, Alliance Defense Fund, Memphis, TN, for Appellant. William J. Marett, Jr., Blind Akrawi, Office of the Tennessee Attorney General, Nashville, TN, for Appellees.

Before: BOGGS and CLAY, Circuit Judges; TARNOW,^** District Judge.

OPINION

TARNOW, District Judge.

Appellant is an evangelical Christian who wishes to speak on the campus of Tennessee Technological University (TTU) about his religion. TTU requires nonaffiliated individuals and groups to obtain permission before speaking on certain parts of the campus. TTU employs a fourteen business day advance notice period for all applications. Appellant attempted to speak on TTU's campus. When he was denied the opportunity to speak anywhere except the north patio and was removed from campus, Appellant brought an as-applied and facial challenge to TTU's policy in the district court.

Appellant filed a motion for preliminary injunction, and Appellees filed a motion to dismiss. The district court held that Appellant did not suffer an injury in fact and therefore, did not have standing to bring the suit. It held that the campus use policy is content-neutral and narrowly tailored.

Because Appellant has suffered an injury in fact, has standing, and TTU's policy is not narrowly tailored, we REVERSE the district court's finding that Appellant does not have standing to pursue his claims; REVERSE the district court's grant of Defendants' motion to dismiss and REMAND for further proceedings consistent with this opinion; and VACATE the district court's denial of McGlone's motion for preliminary injunction and REMAND for further proceedings consistent with this opinion.

BACKGROUND

The following facts come from the district court's Memorandum and Order granting Defendants' Motion to Dismiss and denying Plaintiff's Motion for Preliminary Injunction. The district court accepted as true Plaintiff's version of the facts. R. 29, at 1–2; Appellant's Br., at 13.

Plaintiff McGlone is a professing evangelical Christian who resides in Breeding, Kentucky. As a tenet of his faith, he conveys his beliefs and convictions to others in public. He does this orally, either in small groups or in one-on-one conversations and through distribution of literature and display of signs. Plaintiff often discusses issues of the day from his religious perspective. To share his faith, the plaintiff frequently visits public universities and expresses his religious beliefs with students and others found on campus. Plaintiff's message relates to the hope that he believes Jesus Christ offers for humanity. In plaintiff's view, there is no better place to share his faith than on a college campus.

The plaintiff makes no attempt to solicit funds or membership in any organization. He does not try to harass anyone or encourage violence, and he expresses himself in a peaceful manner. He claims that he does not try to force anyone to listen to him or to accept the literature he distributes; he seeks only to share his beliefs and to engage other persons in respectful conversation and rational dialogue about the teachings and benefits of Christianity. Tennessee Technological University (“TTU”) is a public university located in Cookeville, Tennessee. The TTU campus blends in with the City of Cookeville; other than a few signs, there are no demarcations signifying where TTU ends and the City of Cookeville begins. Various city streets run around and through the TTU campus. The city streets that run through campus include University Drive, Dixie Avenue, North Willow Avenue, and North Peachtree Avenue. TTU's campus is bounded by 12th Street to the north, a railroad to the east, Pine and North Franklin Avenues to the west, and various residences, commercial establishments, and public streets to the south. The sidewalks on the perimeter of the TTU campus and on streets running through campus are indistinguishable from City of Cookeville sidewalks. There are no fences or barricades on the perimeter of the campus to prevent members of the general public from gaining access to the campus. The TTU campus is open to the public at large, and individuals not associated with the university have free access onto the grounds. The campus contains many open, accessible areas on the grounds, including sidewalks, park areas with benches and tables, pedestrian malls, and other public ways.

On April 6, 2009, the plaintiff called TTU to learn how he could express his religious views on campus. He spoke with Susan Henry in the Student Information Office, and she told him to stop by the office when he wanted to speak.¹

The next day, on April 7, 2009, Mr. McGlone and his friend, Shawn Holes, visited the TTU campus for the specific purpose of expressing a Christian message to students by conversation, literature distribution, and display of signs. McGlone wished to speak in any open, outside area of the campus where students could be found, including but not limited to, the south patio/plaza area outside the University Center, Sherlock Park, the Main Quad near South Hall, and the sidewalks along 12th Street, Dixie Avenue, North Willow Avenue, North Peachtree Avenue, and 7th Street. (Docket Nos. 2–2 through 2–14, Exs. B through O.)

Upon arriving at the TTU campus, McGlone and Holes went to the University Center to meet with Ms. Henry. They noticed a few students on the south patio outside the University Center (Docket No. 2–1, Ex. B) and immediately started talking to them before checking in with Ms. Henry. The south patio has several tables and chairs and flows into a large plaza area. (Docket Nos. 2–2 & 2–3, Exs. C & D.) Students gather in this area, which resembles a pedestrian mall.

After a few minutes, McGlone went inside the University Center to find Ms. Henry, while Holes stayed outside and talked with students. Ms. Henry was not present that day, so McGlone spoke with Mark Ochsenbein, Director of Student Activities. Mr. Ochsenbein said that McGlone could speak on the north patio. (Docket No. 2–15, Ex. P.) McGlone asked if he could use the south patio/plaza instead, there being more students and tables and chairs in that area. Ochsenbein declined McGlone's request and told him that the north patio was his only option. McGlone asked to see the written policy limiting expressiveactivity to the north patio. Ochsenbein became agitated and said that if McGlone did not use the north patio he would call the university police and have him arrested.

McGlone went outside to inform Holes of Ochsenbein's comments. Holes agreed that the north patio was inadequate for their expressive activities, as there were few students and no tables and chairs. McGlone went back inside the University Center and spoke to Ed Boucher, Dean of Student Affairs. McGlone explained why he and Holes did not want to use the north patio, and he asserted that their use of the south patio/plaza area would in no way cause a disruption. Dean Boucher said that he would check university policy and get back to McGlone.

McGlone then returned to the south patio outside the University Center, where he and Holes, without permission, continued to distribute tracts and engage others in conversation. A few minutes later, TTU police officer Michael Lambert approached and informed McGlone and Holes that they had to stop their activities and leave campus or they would be arrested for trespass. McGlone and Holes left the campus.

The following day, on April 8, 2009, at approximately 9:00 a.m., McGlone telephoned Dean Boucher to find out whether he could speak on campus. Dean Boucher said that plaintiff could speak, but he needed to follow TTU's campus use policy. (Docket No. 2–19, Ex. T.) According to Dean Boucher, the policy required plaintiff to submit a written application before speaking (Docket No. 2–20, Ex. U) and to submit that application in person at least 14 business days prior to speaking.

The policy, entitled “Use of Campus Property And Facilities,” states that its purpose “is to provide a uniform basis upon which the institutions and area vocational-technical schools governed by the Tennessee Board of Regents can regulate the use of campus property and facilities by affiliated and non-affiliated groups, organizations and individuals.” (Docket No. 2–19 at 1, 0240–1–1.01.) The policy also provides that it

is intended to provide a system of regulations calculated to promote the orderly conduct of activities on campus property and in campus facilities: to prevent interruption of or interference with normal missions, processes and functions of the institutions and schools; to promote an educational rather than commercial atmosphere on campus; to prevent commercial exploitation of students; to preserve residential tranquility and to prevent use of campus property and facilities contrary to federal, state, or local law or regulation, or policies or regulations of the Tennessee Board of Regents, or the institution and schools.

( Id.) The policy further provides that the campuses and facilities of the institutions and schools are restricted to students, faculty, staff and guests of the institutions or schools, except when part or all of the campuses, its buildings or facilities are open to the general public for a designated time and purpose or “when use by nonaffiliated groups, organizations or individuals has been granted or approved pursuant to the provisions of this policy or the policy of the individual institution or school.” ( Id. at 1, 0240–1–1.02(2)(a).) The policy specifically...