Speech First, Inc. v. Killeen, 072820 FED7, 19-2807

Docket Nº:19-2807
Opinion Judge:St. Eve, Circuit Judge.
Party Name:Speech First, Inc., Plaintiff-Appellant, v. Thomas L. Killeen, et al., Defendants-Appellees.
Judge Panel:Before Brennan, Scudder, and St. Eve, Circuit Judges. Brennan, Circuit Judge, concurring in part and dissenting in part.
Case Date:July 28, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Speech First, Inc., Plaintiff-Appellant,

v.

Thomas L. Killeen, et al., Defendants-Appellees.

No. 19-2807

United States Court of Appeals, Seventh Circuit

July 28, 2020

Argued February 27, 2020

Appeal from the United States District Court for the Central District of Illinois. No. 3:19-cv-03142-CSB-EIL - Colin S. Bruce, Judge.

Before Brennan, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Colleges and universities unquestionably benefit from the free flow of ideas, debate, and deliberation on campus. These institutions should strive to foster an environment where critical thought, and sometimes strong disagreement, can flourish. Indeed, "[f ]reedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education." Erwin Chemerinsky & Howard Gillman, Free Speech on Campus x (Yale Univ. Press 2017).

Speech First-a national advocacy organization dedicated to promoting the exercise of free speech on college campuses-alleges that three distinct policies at the University of Illinois at Urbana-Champaign ("the University") threaten these ideals and impermissibly chill the speech of student members of its organization. It seeks a preliminary injunction to put a halt to these policies.

When a party seeks a preliminary injunction before the district court, the burden rests on that party to demonstrate that it has standing to pursue its claims. Speech First failed to meet that burden for two of the policies it challenges; namely, it failed to demonstrate that its members face a credible fear that they will face discipline on the basis of their speech as a result of those two policies. And for its challenge to the third policy, that claim is moot. The district court therefore correctly denied the motion for a preliminary injunction, and we affirm.

I. Background

Speech First sued 29 administrators at the University on behalf of four anonymous students. These students claim that they wish to express what they describe as "political, social, and policy views that are unpopular on campus." Speech First's complaint lists examples of such viewpoints in general terms: opposition to abortion, support for President Trump, belief in traditional marriage, support for strong immigration policies, support for the "deradicalization of Islam," support for First Amendment protection of "hate speech," opposition to gun control, and support for LGBT rights.

Speech First alleges that three University policies-the responsive action of the Bias Assessment and Response Team and the Bias Incident Protocol to reports of "bias-motivated incidents" on campus, the imposition of No Contact Directives, and the prior approval rule-chill their student members' speech, force these students to engage in self-censorship, and deter them from speaking openly about issues of public concern.

A. Bias Assessment Response Team and Bias Incident Protocol

Speech First challenges the actions of the University's Bias Assessment and Response Team ("BART"). BART "collects and responds to reports of bias-motivated incidents that occur within the University of Illinois at Urbana-Champaign community." In turn, BART defines "bias-motivated incidents" as "actions or expressions that are motivated, at least in part, by prejudice against or hostility toward a person (or group) because of the person's (or group's) actual or perceived age, disability/ability status, ethnicity, gender, gender identity/expression, national origin, race, religion/spirituality, sexual orientation, socioeconomic class, etc." In addition, BART "[p]rovides opportunities for educational conversation and dialogue" and "[s]upports those impacted by bias."

BART is administratively housed within the Office for Student Conflict Resolution ("OSCR")

• In addition to BART, OSCR houses two other functions:

(a) voluntary alternative conflict resolution services and

(b) enforcement of the Student Code. Members of BART come from various departments across the University: OSCR; the University Housing Office; the Office of Student Affairs; the Office of Diversity, Equity, and Inclusion; the Student Assistance Center; the student union; and the University Police Department, which supplies a law enforcement liaison to BART.

Any member of the University community can report to BART by sending an email to the BART-specific email address or through a webform on the BART website. The webform does not require the reporter to identify himself, and the majority of BART reporters remain anonymous. One of the BART Co-Chairs enters the report into an internal database. A Co-Chair will promptly address any incidents that require a simple response. This could include, for example, a report of a swastika drawn on a bathroom door, where a Co-Chair will call the facilities department to erase it. For those incidents that do not allow for as straightforward of a resolution, BART members discuss reports at a bi-weekly meeting and determine whether to reach out to the involved students, if they are identified, to invite them to participate in a voluntary conversation. BART also devises a response plan, which could include "[e]ducational conversations," "[m]ediation, facilitated dialogue," "[e]ducational referrals," "[r]esolution agreements," or "[r]eferrals to other offices and/or programs."

If the reporting party is identified and wishes to meet, a BART staff member will discuss the report with the student and offer support. If the reporting party identifies the offender, a BART staff member will contact that person via email to schedule a voluntary meeting. Notably, the majority of students who BART contacts either do not respond or decline to meet. Students who decline suffer no consequences. If a student agrees to meet, BART staff explains to the student that her conduct drew attention and gives the student an opportunity to reflect upon her behavior and its impact on other students. BART cannot require students to change their behavior and does not have authority to issue sanctions if they decline to do so.

Justin Brown, Director of OSCR and a former Chair of BART, states in a declaration that BART keeps private all interactions with students, and interactions do not appear in students' academic or disciplinary records. BART does, however, publish an annual report of incidents with all personally identifiable information removed from its data and descriptions. Examples of these descriptions, in their complete form, include: • "The pillars outside of Foellinger Auditorium were chalked with the phrases, 'Women are Worthless' and 'Go White Privilege.' Facilities removed the chalking within an hour of it being reported."

"A student reported that another student said to him, 'I voted for Trump because I want to deport you guys. Enjoy the last few months in America.' A member of the team met with both of the students involved."

"There were multiple reports (41) that an RSO posted on Facebook that they were going to hold an Affirmative Action Bake Sale' where they would charge different prices based on race and ethnicity. A member of the team met with the leadership of the RSO. All of the people that reported were contacted, and many of them met with a member of the team."

January Boten, Assistant Dean of Students at the University and a Co-Chair of BART, asserts in an affidavit that "[a]ny contact a student has with BART-whether the student reporting an incident or the student who is alleged to have engaged in the reported behavior-is entirely voluntary."

Expressing the views Speech First describes in its complaint does not violate the University's Student Code. Thus, Boten explains, students "could not face discipline at the University solely as a result of expressing those opinions," although "some behavior motivated by bias may also violate the Student Code." (emphasis in original). Such behavior could include physical violence, stalking, true threats, and sexual harassment. BART has no independent disciplinary authority, and therefore the student disciplinary process, rather than BART, addresses this sort of behavior. Boten represents that reports made to BART "are not 'referred' from BART to the University Police, nor do the police ever investigate an incident reported to BART unless that incident independently was reported to the Police for law enforcement reasons." Relatedly, there is no evidence that the liaison to BART from the University Police has any law enforcement function in her capacity as a BART member.

Speech First National President Nicole Neily submitted a declaration that states she is "aware of how BART operates." Neily has no present connection to the University: she is not a current student, nor is she a member of the faculty or staff. Because she lacks first-hand information about the University's current policies and procedures, she relies on what she has learned through her discussions "with Speech First members and other students who attend and have attended the University" - Students A, B, C, and D. Neily explains her general understanding of BART's procedures, based on these conversations: When a BART official contacts the offender, the official tells the student that the BART has received a bias report about the student and that the BART needs to speak with the student to discuss the allegations. The BART official will not identify the person who has accused the student of "bias" or inform the student of any rights he or she may have.

In addition, Neily asserts that, if BART determines the identity of the student who committed the bias-motivated incident, "it will record the details of the...

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