Young America's Found. v. Kaler

• Decision Date: 04 October 2021
• Docket Number: No. 20-3029,20-3029
• Citation: 14 F.4th 879
• Parties: YOUNG AMERICA'S FOUNDATION, a Tennessee nonprofit corporation; Students for a Conservative Voice, a Registered Student Organization at the University of Minnesota; Ben Shapiro, Plaintiffs - Appellants v. Eric W. KALER, President Emeritus of University of Minnesota, in his individual capacity; Michael Berthelsen, Vice President of University Services of University of Minnesota, in his official and individual capacities; Matthew 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; Erik Dussault, Assistant Director of Student Unions & Activities of University of Minnesota, in his official and individual capacities, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.4th 879

YOUNG AMERICA'S FOUNDATION, a Tennessee nonprofit corporation; Students for a Conservative Voice, a Registered Student Organization at the University of Minnesota; Ben Shapiro, Plaintiffs - Appellants

v.Eric W. KALER, President Emeritus of University of Minnesota, in his individual capacity; Michael Berthelsen, Vice President of University Services of University of Minnesota, in his official and individual capacities; Matthew 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; Erik Dussault, Assistant Director of Student Unions & Activities of University of Minnesota, in his official and individual capacities, Defendants - Appellees

No. 20-3029

United States Court of Appeals, Eighth Circuit.

Submitted: May 11, 2021

Filed: October 4, 2021

Travis C. Barham, David Andrew Cortman, ALLIANCE DEFENDING FREEDOM, Lawrenceville, GA, Theodore Curtis Landwehr, LANDWEHR LAW OFFICES, Columbia Heights, MN, Tyson C. Langhofer, ALLIANCE DEFENDING FREEDOM, Lansdowne, VA, Jacob P. Warner, ALLIANCE DEFENDING FREEDOM, Scottsdale, AZ, for Plaintiffs - Appellants.

Carrie Ryan Gallia, Daniel J. Herber, Brian Slovut, UNIVERSITY OF MINNESOTA, Office of the General Counsel, Minneapolis, MN, for Defendants - Appellees.

Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.

SHEPHERD, Circuit Judge.

Students for a Conservative Voice (SCV) brought Ben Shapiro to speak at the University of Minnesota Twin Cities Campus at an event funded by Young America's Foundation (YAF). University of Minnesota (University) officials rejected various proposed venues for the event, citing security concerns. The officials ultimately approved a smaller, more remote venue than what SCV had requested. SCV, YAF, and Shapiro (Appellants) brought claims under 42 U.S.C. § 1983 against the officials, alleging that the University's then-existing events policy was unconstitutional facially and as applied to them under the First and Fourteenth Amendments. Because we find that SCV's facial challenges and requests for injunctive relief are now moot and that Appellants lack standing to maintain their as-applied claim, we vacate the district court's orders with respect to those claims and remand with instructions to dismiss without prejudice.

I.

In 2017, SCV and Collegians for a Constructive Tomorrow (CFACT), student organizations at the University, hosted an event featuring conservative speaker Lauren Southern on the University's Twin Cities Campus. Prior to the event, SCV became aware that a group of students planned to protest the event. In response, SCV contacted the University of Minnesota Police Department (UMPD) and requested additional security. Upon learning of these security concerns, Erik Dussault, Assistant Director of Student Unions & Activities, scheduled a meeting between the student organizations, UMPD, and himself to discuss security for the event. At this meeting, CFACT mentioned that it, along with SCV, intended to bring Shapiro to campus the following semester and expressed that similar safety concerns would likely be present.¹

Dussault suggested that the students follow the University's "Large Scale Event Process" (LSEP) in planning that event. On its face, this policy is a mandatory approval process for "large scale events,"² which requires student organizations to submit a proposal to a committee of administrators and students which then determines whether the campus can logistically support the event. The parties dispute whether the LSEP was in fact mandatory, and the record is unclear as to whether the LSEP committee even existed. It is undisputed that SCV never submitted a proposal, and the record indicates that no party followed the process in planning for the Shapiro event. Since the commencement of this litigation, the University has replaced the LSEP with a more defined "Major Events" policy, which applies to all individuals regardless of their connection to the University.

The Lauren Southern event was met with a 250-person protest, which resulted in two arrests, a campus curfew, and the use of chemical spray. However, the event itself progressed as planned, unaffected by the disruption. That same evening, SCV submitted a reservation request for the Mayo Auditorium for a "Ben Shapiro Speech" on February 26, 2018, stating:

We will be holding the event in Mayo Auditorium. We understand there is a fee and insurance cost associated with it. That is not an issue. DO NOT relocate this event, and DO let us know the additional work we will be required to do ahead of time. The event will likely require security.

R. Doc. 17-1, at 1. SCV initially estimated attendance for the Shapiro event to be about 400 people and requested the Mayo Auditorium because the venue held 455 people and was centrally located on the East Bank portion of the University's campus.³ This request was forwarded to the University President, Eric Kaler, who then sent an email to his chief of staff stating, "So have they actually invited Ben Shapiro? I do not want this in the middle of campus - West Bank is a better location." R. Doc. 51-2, at 2. Kaler later testified that he was concerned about hosting the event in the Mayo Auditorium because it is in the middle of the medical school and near the campus's transit train's route. He believed that the event would be better located farther from the center of campus "so that if there was a disruption it would have minimal effect on the thousands of people who come to the [U]niversity for reasons besides protesting." R. Doc. 73-8, at 28-29.

Despite its reservation request for the Mayo Auditorium, SCV continued to look for larger venues. SCV had difficulty finding a venue because the University had not finalized its spring semester class schedule. The student organization inquired as to the availability of the Tedd Mann Concert Hall and the Northrop Auditorium, venues located in West Bank with capacities of 1,178 and 2,692 people, respectively. The administrations of these venues declined to hold the event, and Dussault later clarified that the decisions were based on the unavailability of the venues on the event date. SCV also submitted a request to host the event at Willey Hall, a West Bank location with a 1,058-person capacity; the administration of the venue set this request to "tentative" because the Mayo Auditorium was still being held for the event.

On December 19, 2017, Lieutenant Troy Buhta, representing the UMPD, and SCV conducted a "walkthrough" of the Mayo Auditorium to perform a security assessment. Following the walkthrough, Buhta concluded that security concerns rendered the Mayo Auditorium unsuitable for the event, namely the venue's direct connection to the University's hospital and the burden of having to determine whether an individual was a security threat or merely associated with the hospital. The following day, Dussault recommended Ferguson Hall, located in West Bank with a 150-person capacity, and the North Start Ballroom, located in St. Paul with a 555-person capacity. SCV later stated that it would have never agreed to Ferguson Hall based on its limited capacity. Accordingly, Dussault sent an email to SCV and Buhta stating: "Sounds like [i]t will be a decision between the North Star Ballroom or Willey Hall then." R. Doc. 65-4, at 10. Buhta replied, "Willey [Hall] is not going to be a good option due to access from the skyway." R. Doc. 65-4, at 11. In addition, Buhta recommended the Continuing Education and Conference Center, located in St. Paul with a 392-person capacity. Based on this information, SCV responded, "It looks like St. Paul will be our best option," and requested reservations for both the North Star Ballroom and the Continuing Education and Conference Center. R. Doc. 65-4, at 46. Notably, later that day, Matt Clark, the University's Chief of Police, sent an email to Ken Gay, the Director of the Continuing Education and Conference Center, stating: "The admin has asked that we try to move this visit to the St. Paul campus. It's going to be a security issue with past lectures at other universities." R. Doc. 65-4, at 31. The next day, he sent another email to Gay stating that "the crowd size need[ed] to be limited to 500" and that he expected there to be protestors present. R. Doc. 65-4, at 30.

SCV later decided to eliminate the Continuing Education and Student Center from its consideration based on its associated event costs and smaller size. After a walkthrough of the North Star Ballroom, SCV reserved the venue for its event. SCV subsequently met with the venue's event manager to discuss seating configurations; SCV selected the 400-seat configuration because any additional seats would have had an obstructed view. A few weeks later, SCV began selling tickets and sold out within hours. Dussault informed SCV that 49 seats could be added to the North Star Ballroom, though the attendees would have partially obstructed views, and SCV agreed to the expansion.

In late January, SCV, in coordination with YAF, began a "press push" to place public pressure on the University to provide a larger venue. As part of this campaign, YAF published a blog post discussing the event planning process and accusing the University of viewpoint discrimination. On February 12, 2018, a member of the University's Board of Regents emailed the University and expressed concerns about the event planning process. In the member's opinion, the University's messaging regarding the venue changes was inconsistent and Willey Hall was easier to secure than the North Star Ballroom. This email was forwarded to Clark as well as Michael Berthelsen, the Vice President of University Services. Clark responded:

We are already past capacity for this event considering the number of officers on UMPD. Adding additional seats and guarding a growing protest crowd creates greater safety risk and

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