Tuesday 13th April 2021

Home » Frontpage » Currently Reading:

Should College Administrators Know What The First Amendment Means?

March 29, 2021 Frontpage No Comments


Here’s a quick test — see how you score yourself. Should college administrators be punished for adopting policies that curb free speech even when they claim that there is no definitive ruling against the restriction they adopted?
Or, to put it into legal terms: “Whether qualified immunity shields public university officials from liability when the reasoning — but not the holding — of a binding decision gave the officials fair warning they were violating the First Amendment.”
The quote above comes from a brief asking the Supreme Court to review a case from the Eighth Circuit Court of Appeals which upheld a lower court decision that college administrators clearly violated the free speech rights of a student but did not award her damages for that violation. And that refusal came in spite of the wording of 42 U.S.C. 1983 which states:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
The case is called Ashlyn Hoggard v. Ron Rhodes, et al., and it has been appealed to the Supreme Court by what is called a petition for a writ of certiorari which is the legal mechanism used by litigants to request a hearing before the top court. The facts are similar to those found in other cases.
Ashlyn Hoggard was a student at Arkansas State University when she tried to establish a student chapter of Turning Point USA on campus. In order to submit a proposal to the school’s administration to recognize the chapter she had to have at least five other students as charter members, draft a constitution for the group, and file an application with the school, among other things. In attempting to drum up interest in her plan, Ashley and a representative of Turning Point took a seat at a table in the student union area where interested students could chat and pick up information on Turning Point.
To make a long story short, Ashley was soon visited by two university officials, Sarah Ponder and Elizabeth Rouse, who told her she could not use the table located as it was in an area the appeals court called the “Union Patio.” They did tell her that she could use the campus “Free Expression Area.” Now according to the campus rules, the Free Expression Areas — there were two of them — comprised about one percent of the campus and students were required to apply for and receive permission 72 hours in advance to use them.
Noting that she was at an out of the way table and was not disturbing anyone, nor was she actively soliciting other students, but passively waiting for them to approach her, Ashlyn objected. The officials told her she was violating an unwritten policy that only allowed tables in the student union to be used by registered student groups and university departments. The officials then called campus police who ordered her out.
The two officials concluded by telling Ashlyn and the Turning Point representative that they couldn’t speak anywhere on campus without telling the officials first and the responding campus police officer told them they could be arrested.
The lower courts easily concluded that the school officials violated Ashlyn’s First Amendment rights. Since there was no written policy specifying who could or could not use the tables in the student union, the policy, according to the court of appeals, “simply emerged from the bureaucratic aether.” The court also found that it was undisputed that neither Ashlyn nor her companion created any disturbance, and, in fact, there had been no complaints about what they were doing.
The unwritten policy gave, according to Ashlyn’s attorneys, “unfettered authority to grant or deny speakers permission to set up a table.”
The Alliance Defending Freedom (ADF), representing Ashlyn, issued a statement condemning the university’s actions: “Arkansas State’s previous policies unconstitutionally gave university officials free rein to shut down student speech even in open areas of campus, restricted most expressive activities to small zones that totaled about one percent of the campus, and required advance permission for students to speak anywhere on campus.”
Ashlyn then sued the university seeking an injunction and compensatory damages for the infringement on her First Amendment rights. However, the state legislature then passed legislation repealing the university’s free speech policies rendering most of the case moot. Both parties then moved for summary judgment on their claims and the district court granted the school’s motion, allowing Ashlyn’s case but dismissed her claim for damages against the school officials, the court ruling that the school officials could not be held responsible for the damage claim because the officials were entitled to qualified immunity.
Qualified immunity is the legal concept that protects public officials from civil suits unless the official violated a clearly established legal right to which a reasonable person would have knowledge. Police officers, for example, have it.
Ultimately, the appeals court found that there was a clear violation of Ashlyn’s rights, but again upheld the lower court’s decision on the issue of qualified immunity. That is the issue that is being presented to the Supreme Court: Can school officials be forced to personally pay for their infringement of a student’s constitutional rights?
The matter that raises hackles in this case involves how clear the precedent was in these student free speech cases are, and that is where this issue gets sticky. There have been several cases where the university was upheld in its decision to remove unruly or disruptive students, or non-students, from campus. However, in most of them the courts state in dicta that the school officials acted properly only in reaction to the actions of the student or non-student.
In a court opinion, dicta is an opinion expressed that does not go directly to the specific matter before the court. Often it is an expression of opinion that goes beyond the facts before the court and are not considered legal precedent, such as when the court says you can deny an unruly non-student’s expression.
There is now a split in the circuits on this question: Can dicta be so specific that it outlines the parameters of the law which school officials should know? Or can school officials defend themselves by pointing to the unruly non-student case and claim that the result vindicates them? Or is Ashlyn correct and the school authorities should have known they were trampling on free speech rights even if it only was through dicta?
This is an in the weeds case, inside baseball, if you will. But while the focus is on a very narrow legal point, a ruling in favor of Ashlyn will go a long way to protect the First Amendment rights of students.

  • + + (You can reach Mike at: DeaconMike@q.com and listen to him every Thursday morning at 10 Central on Faith On Trial on IowaCatholicRadio.com.)
Share Button

2019 The Wanderer Printing Co.

Twitter Feed


23rd Texas City Bans Abortions, Becomes “Sanctuary for the Unborn” https://t.co/v9JKt68xhF

The goal of much of the modern American left is to celebrate public sin and to disparage traditional values as bigotry.

Abortion on demand, open borders, four dollars a gallon gasoline, churches and schools closed - what's not to love?

Chris Manion . . . Introducing A New “Reality” By Legislative Fiat - https://t.co/fUiS6S0oft

Load More...

Vatican observes ‘Earth Hour’

On Saturday, along with the Vatican, symbolic monuments of cities all across the globe turn off their lights, to demonstrate the serious global climate crisis. By Vatican News staff writer Vatican City State took part in the traditional international initiative Earth…Continue Reading

House passes bill setting up path to citizenship for millions of Dreamers

Lawmakers in the House of Representatives on Thursday passed an immigration bill that would create a path to citizenship for millions of undocumented immigrants who were brought to the country as children.

The Misleading AP Attack on the Catholic Church for Accepting COVID Relief

In early 2020, a pandemic came to America. We started staying home, then we were ordered to stay home. The market tanked. The economy tanked. Unemployment soared. You remember all this, because you lived it. We all did. Congress created a…Continue Reading

Catholic bishop released five days after kidnapping in Nigeria

CNA Staff, Jan 1, 2021 / 10:42 pm MT (CNA).- A Catholic bishop in Nigeria, who was kidnapped on Sunday, has been released unharmed, according to the Archdiocese of Owerri. The diocese, which is in southeastern Nigeria, announced in a social…Continue Reading

More GOP senators vow to challenge Biden’s win

WASHINGTON – A last-ditch effort by President Donald Trump and his allies to overturn the election thrust Washington into chaos Saturday as a growing coalition of Republican senators announced plans to rebel against Senate leaders by seeking to block formal…Continue Reading

Underground Catholic bishop dies in China

CNA Staff, Dec 31, 2020 / 03:25 pm MT (CNA).- According to the Catholic outlet AsiaNews, headquartered in Rome, Bishop Andrea Han Jingtao, 99, a leader in the underground Catholic Church in China, died Dec. 30. Han Jingtao was the…Continue Reading

‘All-star,’ ‘brilliant jurist’: Pro-life leaders thrilled Trump nominated Barrett to Supreme Court

September 26, 2020 (LifeSiteNews) – Supreme Court nominee Judge Amy Coney Barrett is “an absolute all-star” and “a judicial role model for the next generation,” pro-life leaders said today.  If confirmed, Barrett will replace pro-abortion Justice Ruth Bader Ginsburg, who died just…Continue Reading

Farewell, Uncle Di: Father Paul Mankowski, RIP

My editorial career has brought me into close contact with quite a few impressive thinkers. I have worked with famous authors, with noted theologians and philosophers, with canny political strategists, with at least a half-dozen Nobel Prize winners. Among them…Continue Reading

VIDEO: BLM mob threatens, chases Rand Paul down streets of DC

WASHINGTON, D.C., August 28, 2020 (LifeSiteNews) – Republican Sen. Rand Paul of Kentucky found himself the target of left-wing violence yet again Thursday night as protesters swarmed him as he was leaving the White House, chasing him and his wife…Continue Reading

Planned Parenthood acknowledges Margaret Sanger’s ‘racist legacy’, continues abortions

CNA Staff, Jul 21, 2020 / 11:05 am MT (CNA).- The New York affiliate of the nation’s largest abortion provider said Tuesday it will remove the name of its founder, Margaret Sanger, from its Manhattan building because of her support…Continue Reading

Statue of Virgin Mary beheaded at Tennessee parish

CNA Staff, Jul 15, 2020 / 10:40 am MT (CNA).- A statue of the Blessed Virgin Mary was attacked this weekend at a parish in Chattanooga, Tennessee, the third reported incident against a statue of Mary occuring in the same…Continue Reading

21 doctors tell bishops Communion on tongue ‘safer’ than in hand

June 26, 2020 (LifeSiteNews) – Twenty-one Austrian doctors have authored a letter appealing their country’s Bishops’ Conference to lift the de facto ban on receiving Holy Communion on the tongue, which has been enforced since Communion in the hand was…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.

  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1


Today . . .

Americans to receive COVID shots inside abortion centers as part of multi-million dollar Planned Parenthood campaign

April 8, 2021 (LifeSiteNews) – America’s largest abortion company is launching a major campaign to distribute COVID-19 vaccines and convince people to get them. Today, Planned Parenthood announced a $2 million English and Spanish ad blitz to promote COVID-19 vaccines to at least 1.5 million people, on top of campaigns to distribute shots through clinics and

Statement on the Reception of Holy Communion by Those Who Persist in Public Grave Sin

Many Catholics and also non-Catholics who, while they do not embrace the Catholic faith, respect the Catholic Church for her teaching regarding faith and morals, have asked me how it is possible for Catholics to receive Holy Communion, while at the same time they publicly and obstinately promote programs, policies and legislation in direct violation of the moral law. In particular, they ask how Catholic politicians and civil officials who publicly and obstinately defend and…Continue Reading

Catholic teaching on Communion applies to politicians who support abortion, too, bishop says

Phoenix, Ariz., Apr 6, 2021 / 20:01 pm America/Denver (CNA). Catholic teaching sees the Eucharist as Christ’s transformative sacrifice on the cross and this Holy Communion must only be received worthily. This teaching is not partisan, but it certainly applies to political leaders who back abortion and euthanasia, Bishop Thomas Olmsted of Phoenix has said in an apostolic exhortation on the sacrament of the Holy Eucharist. “Holy Communion is reserved for those, who with God’s grace…Continue Reading

">Conversations with Cardinal Burke March 2021

Only one third of US Catholics plans to attend Mass for Easter: poll

March 31, 2021 (LifeSiteNews) — A recent poll revealed the severe effect COVID-19 restrictions have had upon churchgoers in the U.S. Catholics are shown to be most cautious, with only 5% of Catholic churches open without any restrictions, as they were before the arrival of the virus. Meanwhile, Evangelical protestants are the most eager to return to normal, and look set to fill their churches the most at Easter time.

Should Government Track The Miles You Drive?

By TERENCE P. JEFFREY One American gets up in the morning, gets in his car and drives down a congested highway to work.Another wakes at noon and rides a subway to a saloon.Which of these two — if America’s future takes a wrong turn — would pay what might be called the “Buttigieg tax”?CNBC’s Kayla…Continue Reading

The Plight Of The Author

By DONALD DeMARCO Our parish bazaar was in its second day. Most of the more attractive items were gone on the opening day when crowds of treasure seekers stormed the church basement. Our pastor urged us to sweep clean any trinkets that remained. And so, after Mass, my wife and I made the short journey…Continue Reading

Joe Biden’s Bid To Remake America

By PATRICK J. BUCHANAN If Joe Biden’s American Jobs Program, outlined in Pittsburgh, is enacted, then the federal government will take a great leap forward toward irreversible control of the destiny of the Republic.To finance this leap, to subsidize this giant stride toward socialism, U.S. corporations are to be forced to turn over to the…Continue Reading

Like Clockwork… Mass Shooting, Then Demands For Gun Control

By BARBARA SIMPSON (Editor’s Note: This article first appeared on WorldNetDaily, www.wnd.com, on March 26. All rights reserved. Barbara Simpson has a 20-year radio, TV, and newspaper career in the Bay Area and Los Angeles.) + + Here we go again — or rather, “here we still are.” The news is filled with horrific reports…Continue Reading

Senators Demand Investigation . . . Into Planned Parenthood Getting PPP loans

WASHINGTON, D.C. (CNA) — A letter signed by 25 Republican senators is demanding an investigation into Planned Parenthood affiliates illegally accessing emergency small business loans.“We write to request an investigation concerning how affiliates of the Planned Parenthood Federation of America (‘Planned Parenthood’), a national organization with central control over its affiliates which has nearly $2…Continue Reading


Our Catholic Faith (Section B of print edition)

Remember The Suffering Of The Messiah

By FR. ROBERT ALTIER Third Sunday Of Easter (YR B) Readings: Acts 3:13-15, 17-191 John 1-5aLuke 24:35-48 In the fourth week of Lent we had a break and looked forward to the joy that was coming in Easter. That day reminded us to be joyful and spurred us on to continue with our Lenten penances, knowing we had made it…Continue Reading

Catholic Replies

Q. Can you explain what righteous anger is? I thought anger was one of the seven deadly sins, so how can it ever be righteous? — T.S., via e-mail.A. The glossary at the back of the Catechism of the Catholic Church defines anger as “an emotion which is not in itself wrong, but which, when it is not controlled by…Continue Reading

A Leaven In The World . . . Freedom Of Faith Vs. Social Control

By FR. KEVIN M. CUSICK The world doesn’t know how to use power. Like addicts, those unrestrained by any humility or faith believe that, if a little feels good, then more must be better.We may be in masks to buy groceries for the rest of our lives. We may not be able to do anything about that. It’s the world.…Continue Reading

Cardinal Sarah Asks Pope Francis . . . To Reinstate Individual Masses At St. Peter’s Basilica

By HANNAH BROCKHAUS VATICAN CITY (CNA) — Robert Cardinal Sarah has asked Pope Francis to reinstate the celebration of private Masses at the side altars in St. Peter’s Basilica, after individual Masses were suspended earlier in March in favor of concelebration.“I humbly beg the Holy Father to order the withdrawal of the recent norms issued by the secretariat of state,”…Continue Reading

Love God And Love Neighbor

By FR. ROBERT ALTIER Second Sunday Of Easter (Divine Mercy) (YR B) Readings: Acts 4:32-351 John 5:1-6John 20:19-31 In the first reading today, we are told that the first Christians were of one heart and mind. Such unity can only exist when there is no selfishness. What the first believers show us is that their minds were united in the…Continue Reading

Catholic Heroes . . . St. Jeanne Jugan

By DEB PIROCH “The Seventh Commandment implies the obligation of assisting the poor and needy as far as we are able. . . . Our Lord declares the omission of alms deeds will be punished by eternal damnation (Matt. 25:46). . . . For many persons, without their own fault, are pitiably destitute, e.g. orphans, widows, the sick and disabled,…Continue Reading

Catholic Heroes… Pope St. Pius X

By DEB PIROCH “He saith to him again: Simon, son of John, lovest thou me? He saith to him: Yea, Lord, thou knowest that I love thee. He saith to him: Feed my lambs. He said to him the third time: Simon, son of John, lovest thou me? Peter was grieved, because he had said to him the third time: Lovest…Continue Reading