Young America's Found. v. Kaler

• Decision Date: 26 February 2019
• Docket Number: Case No. 18-cv-1864 (SRN/HB)
• Citation: 370 F.Supp.3d 967
• Parties: YOUNG AMERICA'S FOUNDATION, a Tennessee nonprofit corporation, Students for a Conservative Voice, a registered student organization at the University of Minnesota, and Ben Shapiro, Plaintiffs, v. Eric W. KALER, President of University of Minnesota, in his official and Individual capacities, Michael Berthelsen, Vice President of University Services of University of Minnesota, in his official and individual capacities, Matthew A. Clark, Chief of Police of University of Minnesota, in his official and individual capacities, Troy Buhta, Lieutenant of University of Minnesota Police Department, in his official and individual capacities, and Erik Dussault, Assistant Director of Student Unions & Activities of University of Minnesota, in his official and individual capacities, Defendants.
• Court: U.S. District Court — District of Minnesota

370 F.Supp.3d 967

YOUNG AMERICA'S FOUNDATION, a Tennessee nonprofit corporation, Students for a Conservative Voice, a registered student organization at the University of Minnesota, and Ben Shapiro, Plaintiffs,

v.Eric W. KALER, President of University of Minnesota, in his official and Individual capacities, Michael Berthelsen, Vice President of University Services of University of Minnesota, in his official and individual capacities, Matthew A. Clark, Chief of Police of University of Minnesota, in his official and individual capacities, Troy Buhta, Lieutenant of University of Minnesota Police Department, in his official and individual capacities, and Erik Dussault, Assistant Director of Student Unions & Activities of University of Minnesota, in his official and individual capacities, Defendants.

Case No. 18-cv-1864 (SRN/HB)

United States District Court, D. Minnesota.

Signed February 26, 2019

Tyson C. Langhofer, Alliance Defending Freedom, 15100 North 90th Street, Scottsdale, AZ, 85260, David A. Cortman and Travis C. Barham, Alliance Defending Freedom, 1000 Hurricane Shoals Road NE, Suite D-1100, Lawrenceville, GA 30043, Jonathan M. Larcomb, Alliance Defending Freedom, 440 First Street NW, Suite 600, Washington, D.C. 20001, and Theodore C. Landwehr, Landwehr Law Offices, 4034 Seventh Street NE, Columbia Heights, MN 55421, for Plaintiffs.

Carrie Ryan Gallia, Brian J. Slovut, and Daniel J. Herber, University of Minnesota, Office of General Counsel, 360 McNamara Alumni Center, 200 Oak Street SE, Minneapolis, MN 55455, for Defendants.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, United States District JudgeThis case arises at the intersection of two competing freedoms: the freedom of public university student groups, and their invited guest speakers, to exercise their First Amendment rights, and the freedom of public universities to manage their facilities in the manner that best advances the University's educational mission.

Plaintiffs – a University of Minnesota student group, Students for a Conservative Voice, as well as an outside organization dedicated to promoting conservative speech on campus, Young America's Foundation, and a conservative political commentator, Mr. Ben Shapiro – have brought "as-applied" and "facial" challenges to the University of Minnesota's policy for handling "large-scale events," under both the First and Fourteenth Amendments. In their "as-applied" challenge, Plaintiffs focus on the manner in which Defendants applied the University's "large-scale events" policy to a speech given by Mr. Shapiro on February 26, 2018. Defendants have moved to dismiss the complaint in its entirety.

The Court grants Defendants' motion in part and denies it in part. The Court grants Defendants' motion with respect to Plaintiffs' "facial" First Amendment challenge, but denies Defendants' motion with respect to Plaintiffs' "as-applied" First Amendment challenge. Further, the Court grants Defendants' motion with respect to Plaintiffs' Fourteenth Amendment Due Process and Fourteenth Amendment Equal Protection claims. The Court explains its reasoning at greater length below.

I. BACKGROUND¹

A. The Parties

There are three Plaintiffs in this case. Plaintiff Young America's Foundation ("YAF") is a nonprofit organization that was founded by the late conservative thinker William F. Buckley in the 1960s. (Am. Compl. [Doc. No. 25-2] ¶¶ 24, 79.) YAF hosts and co-sponsors conferences and lectures around the country, with the goal of introducing young people and university students to conservative viewpoints. (Id. )

Plaintiff Students of a Conservative Voice ("SCV") is a registered student group at the University of Minnesota. (Id. ¶ 25.) SCV attempts to introduce their classmates to "alternative," often conservative, viewpoints by way of "flyers, signs, peaceful demonstrations, hosting tables with information, inviting speakers to campus, and talking with fellow students." (Id. ¶¶ 25-27.) According to SCV, this mission is important because "conservative viewpoints are notably absent from educational instruction at the University of Minnesota." (Id. ¶¶ 25-27, 72.)

Plaintiff Ben Shapiro is an "American political commentator, nationally syndicated columnist, author, radio talk show host, and attorney." (Id. ¶ 28.)

There are five Defendants in this case. Defendant Eric W. Kaler is the President of the University of Minnesota, a public university created by the State of Minnesota. (Id. ¶¶ 29-34, 51.) President Kaler "is responsible for the enactment, implementation, and enforcement of [University of Minnesota] policies affecting students, student organizations, faculty, and guests." (Id. ¶¶ 52-53.)

Defendant Michael Berthelsen is the Vice President of University Services at the University of Minnesota. (Id. ¶ 36.) Plaintiffs allege that Vice President Berthelsen consults with President Kaler over "certain University policies," and "their application to student speech." (Id. ¶ 37.)

Defendant Matthew Clark is the Chief of Police at the University of Minnesota. (Id. ¶ 40.) Plaintiffs allege that Chief Clark also consults with President Kaler (and Vice President Berthelsen) over "certain University policies," and "their application to student speech." (Id. ¶ 41.)

Defendant Troy Buhta is a Lieutenant in the University of Minnesota Police Department. (Id. ¶ 44.)

Defendant Eric Dussault is the Assistant Director of Student Unions & Activities at the University of Minnesota. (Id. ¶ 48.)

B. The Large-Scale Events Process ("LSEP")

This litigation centers around a University of Minnesota student affairs policy called the "Large-Scale Events Process" ("LSEP"). (See generally Compl., Ex. 1 [Doc. No. 1-1] ("LSEP").) Because the Complaint does not allege when or how the LSEP came into existence, the Court simply details what the LSEP says on its face. See Neubauer v. FedEx Corp. , 849 F.3d 400, 403 (8th Cir. 2017) (noting that, in deciding a motion to dismiss, a court may directly consider "all documents ... attached to the complaint as exhibits").

The LSEP sets forth a process to be followed "by any registered student group proposing to host a large-scale event on the University of Minnesota campus." (LSEP at 1.) The LSEP first defines "large scale event" as a "student group sponsored event taking place in a large campus venue or outdoor space that will draw a significant amount of the campus population, a large off-campus crowd, or represents a significant security concern (i.e. , public figure, celebrity, etc)." (id. ) The LSEP then states that, although a student group has a right to reserve a "large campus venue" for such an event, "the reservation will only be confirmed upon approval by the Large-Scale Events Committee ("LSEC")." (id. ) The LSEC includes representatives from various campus departments, such as "the University of Minnesota Police Department, University Services, Parking and Transportation, [and] Student Unions and Activities." (id. ) To secure approval from the LSEC for a venue reservation, the student group must put together a "Large Scale Event Proposal," containing a variety of relevant logistical details, and then must meet with the LSEC, if asked. (id. ) Ultimately, the LSEC's "determination of whether the campus can support the [student group proposed] event" will be based on factors such as "other events happening on campus, human resources needed to support the event, the impact of the event on the campus community, and the impact of the event on the community surrounding campus." (id. )

Plaintiffs allege that the LSEP is unconstitutional, on its face, under either the First Amendment or the Fourteenth Amendment's Due Process Clause. (See, e.g. , Am. Compl. ¶¶ 63-70.) This is largely because the LSEP purportedly "does not provide any objective, non-content-based and non-viewpoint-based criteria for [University officials] to use when deciding to impose [ ] restrictions on a proposed event," and, further, "does not limit the discretion of [University officials] when deciding whether to apply the policy to student organizations' events." (Id. ¶¶ 68-69.)

C. The Shapiro Speech

Sometime in fall of 2017, SCV decided that it wanted to bring Mr. Shapiro to campus for a lecture. This was so because, although SCV found Mr. Shapiro "to be an incredibly articulate, consistent, and academically accomplished leader in conservative thought," SCV "believed that Mr. Shapiro's viewpoints [were] treated unfairly on campus by University of Minnesota faculty and administrators alike." (Id. ¶ 77.) With the assistance of YAF, SCV reached out to Mr. Shapiro, and Mr. Shapiro, in turn, agreed to come speak to University of Minnesota students (and members of the surrounding community) on February 26, 2018. (Id. ¶¶ 78-80; see also Id. ¶ 80 (noting that YAF provided "assistance and financial support to bring Mr. Shapiro to the University of Minnesota's campus").)

In October 2017, several months before Mr. Shapiro's speech, SCV informed the University that it intended to bring Mr. Shapiro to campus the following February. (Id. ¶ 81.) According to Plaintiffs, "[b]efore any specific details were provided by SCV, Defendant Dussault [the Assistant Director of Student Unions & Activities] explicitly informed SCV that the Shapiro event would be subject to [the LSEP] and stated that he would schedule follow up meetings to discuss details." (Id. ¶ 83.) Nonetheless, because Defendants had allegedly used the LSEP to relocate one of SCV's prior events (a speech by conservative commentator Lauren Southern) "on three occasions without obtaining SCV's prior permission" (Id. ¶ 85), Plaintiffs allege that SCV immediately took the initiative of reserving "multiple potential rooms" on the centrally-located Minneapolis campus "to avoid being forced to host the Shapiro event in an undesirable location and to make sure that at least one room was available." (Id. ¶ 87.) Because SCV's goal was to hold Mr. Shapiro's speech "in the largest venue available on the Minneapolis...