Reproductive Rights Network v. President of University of Massachusetts

• Citation: 45 Mass.App.Ct. 495,699 N.E.2d 829
• Decision Date: 22 September 1998
• Docket Number: No. 97-P-0841,97-P-0841
• Parties: , 128 Ed. Law Rep. 1179 REPRODUCTIVE RIGHTS NETWORK & others 1 v. PRESIDENT OF the UNIVERSITY OF MASSACHUSETTS & others. 2
• Court: Appeals Court of Massachusetts

Page 829

699 N.E.2d 829

45 Mass.App.Ct. 495, 128 Ed. Law Rep. 1179

REPRODUCTIVE RIGHTS NETWORK & others ¹ v. PRESIDENT OF the UNIVERSITY OF MASSACHUSETTS & others.² No. 97-P-0841.

Appeals Court of Massachusetts Suffolk.

Argued May 27, 1998.

Decided Sept. 22, 1998.

Sarah R. Wunsch, Boston, for plaintiffs.

Terence P. O'Malley, Boston, for defendants.

Before BROWN, GREENBERG and LAURENCE, JJ.

GREENBERG, Justice.

A judge of the Superior Court concluded, in enjoining officials of the University of Massachusetts from interfering with the plaintiffs' free speech rights, that although the acts complained of by the plaintiffs abridged their constitutional rights under art. 16 of the Massachusetts Declaration of Rights, no violation of the Massachusetts Civil Rights Act (MCRA) occurred. See G.L. c. 12, §§ 11H and 11I. The judge also denied the plaintiffs' request for attorneys' fees under the statute. The plaintiffs appeal, and the defendants cross appeal from the judgment permanently enjoining them from interfering with the plaintiffs' right to use University facilities for political meetings. We conclude that the grant of an injunction was appropriate, but that the judge erred as to the State civil rights claim.

The plaintiffs, concerned faculty and self-described "activists," argued at trial, and contend on appeal, that the defendants should be held liable under the MCRA because they denied the plaintiffs access to a University of Massachusetts at Boston (University) building, ³ where they had planned to hold a meeting, by locking it and posting guards outside to turn away visitors. The plaintiffs claim that these actions violated their constitutional rights through "threats, intimidation, or coercion." ⁴ Further, they contend that other motives offered by the University as justification for its decision to cancel use of the facility should not operate as defenses under art. 16 or the MCRA.

Drawing upon the judge's findings and uncontested portions of the record, we will provide the relevant background. Hoping to foment opposition to what the plaintiffs perceived as Bernard Cardinal Law's interference with public policy on abortion rights, AIDS education in public schools, and gay and lesbian rights, the plaintiff Susan Trotz, a graduate student, sought to secure a University classroom for two organizational meetings, one to take place on Wednesday, June 13, 1990, and the other for Friday, June 15, to plan for a demonstration on Saturday, June 16. The demonstration was to take place at a cathedral in Boston where Cardinal Law would be present. She asked her faculty advisor, Professor Ann Withorn, for assistance in scheduling the space.

As she had done in the past in similar situations, Professor Withorn authorized Trotz to call the scheduling office and reserve a meeting room in Withorn's name. While the University had available "space request" forms, in practice, faculty would reserve rooms verbally without the forms, whether or not outside groups participated. The form noted that the University could withhold permission for use of its facilities if it determined that the group seeking their use "permits conduct detrimental to the best interest of the University."

A flyer, announcing the upcoming demonstration and advertising the planning meetings to be held at the University, was posted at the University and in downtown Boston. The flyer acknowledged the sponsorship of ACT UP/Boston, the Reproductive Rights Network, and the Coalition for Lesbian and Gay Civil Rights, along with the endorsement of seventeen other advocacy groups. One meeting was described as providing "CD [or civil disobedience] Training," to be held June 13, and the other a "Pre-Action Meeting" to be held on June 15.

On Wednesday morning, June 13, a staff meeting was attended by Chancellor Sherry Penney, Vice-Chancellor for External Relations Edward O'Malley, Provost Leverett Zompa, Associate Chancellor Donald Babcock and other senior University administrators. After discussion, which included a report that two prominent members of the board of trustees had called then President Joseph Duffey to protest the plaintiffs' use of the reserved room, a decision was made to cancel the meetings. The trustees had questioned the propriety of the University hosting an event sponsored by the plaintiff ACT UP/Boston, an organization that they associated with a demonstration that had disrupted a religious service in New York, resulting in a counter-demonstration and over 100 arrests. O'Malley agreed with the trustees that private and public fundraising might be adversely affected should the University be perceived as sponsor of such a controversial demonstration. The executive staff decided that Provost Zompa be charged with canceling that evening's meeting.

Following a conversation with Professor Withorn, in which Withorn protested the decision and argued that the meeting was not sponsored by the University, Provost Zompa relented. As originally planned, the June 13 meeting took place that evening and was attended by about eight to ten people. None of the troubles anticipated by the University officials came to pass. The next day, however, the University's executive staff, in response to continuing staff and trustee concerns over a potential counter-demonstration and resulting "media circus," reevaluated whether the next meeting scheduled for Friday, June 15, should be canceled.

After the executive meeting on June 13, Vice-Chancellor O'Malley had asked the University's community relations director, Gail Hobin, to investigate the reservation. Hobin reported that space had been reserved in Withorn's name. Hobin then alerted campus security, who dispatched two officers to the first planning meeting. The next day, Hobin told Withorn that because the public had been invited to attend, the meeting rooms had been incorrectly reserved and that security coverage was required. Hobin wanted someone to agree to pay the $200 charge for the special police assignment. Withorn refused, stating that she had reserved space at the University the same way for thirteen years and that the assignment of a security detail was a pretext and had been unnecessary in light of the sparse attendance at the meeting.

President Duffey decided to close the building on Friday, June 15, before the second meeting could take place. At 5 P.M. that Friday, seventeen campus police officers arrived at the building. Without any explanation, they entered the building where the meeting was to take place, escorted all occupants out, and locked the doors. Among those evicted at that time were members of organizations and businesses that regularly used the building, as well as staff and faculty that had intended to work into the evening. All were told that the building would be closed for the weekend. There was confusion for the next few hours as occupants, unexpectedly expelled from the building, were able to retrieve their belongings only after extensive negotiations with the police who had orders from the provost's office not to let anyone inside. One woman who had tried to reenter the building got into a physical "tussle" with the officers. Uniformed officers were guarding the doors when thirty to fifty persons who planned to attend the meeting were barred from entering. Trotz and Withorn were among them and objected strenuously. In the end, the plaintiffs and other participants met on the sidewalk in front of the building and held the demonstration outside of the cathedral on June 16, 1990, as scheduled. Following the University's closure, one trustee sent a note to the president and chancellor congratulating them for having "closed our doors" to "these ... religious bigots," and hoping the groups would "find another home for their organizational meetings."

On June 25, in response to these events, President Duffey issued a statement that the building had been closed because the convening groups, by failing to submit a written request form, had not followed required University procedures and that it had been impossible to ensure the safety of the building. The judge, however, found that "Duffey closed the building based on the unsupported fear of disruption at the University and the fact that ACT UP was a controversial group not because the proper room reservation procedure was not followed."

A subsequent publication of the University's facility use policy, created in response to these events, is not substantially different from the prior unwritten practice. The written policy reiterates that if non-University affiliated individuals are invited to an event reservations should be made through the community services office rather than the scheduling office, and that "each (administrative) office determines the amount of special cleaning and security" charges. Like the preexisting request forms, which are still in use, the new facility use policy grants University administrators unfettered discretion to deny facility use. The forms still state that approval may be denied when it would be "in the best interest of the University." Neither the written policy nor the form indicate what criteria University officials are to use to deny facility use or to assess charges.

1. Mootness. The defendants argue that the issues are moot because, due to changes in circumstances, the "party who claimed to be aggrieved ceases to have a personal stake in its outcome." Hashimi v. Kalil, 388 Mass. 607, 608, 446 N.E.2d 1387 (1983), quoting from Blake v. Massachusetts Parole Bd., 369 Mass. 701, 707, 341 N.E.2d 902 (1976). They contend that the events in question have passed and that they have promulgated a written policy to deal with the issue in the future.

That the planned meetings and demonstration have taken place does not extinguish the question whether art. 16 or the MCRA were violated in that instance or could potentially be violated in the future. The likelihood that a defendant will...