By MIKE MANNO
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.
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