Conservative students win over liberal appeals court in censorship case, seek campus recognition

9th Circuit frowns on "subjective" policy used to remove anticommunist flyers. Student government replaces one unconstitutional policy with another after lawsuit, group claims.

Published: August 6, 2023 6:57am

Public college administrators 2,700 miles apart are trying to escape legal responsibility for what some courts are calling potential viewpoint discrimination against campus chapters of the same nationwide conservative group.

The 9th U.S. Circuit Court of Appeals made that harder for California's Clovis Community College Thursday by refusing to moot the First Amendment lawsuit against several officials by former students in its Young Americans for Freedom chapter. The question of mootness was brushed aside by the court, because even though the college being sued rescinded their "Flyer Policy" at issue, the matter was capable of repetition yet avoiding judicial review.

That leaves in place last fall's preliminary injunction against its since-rescinded policy that was used to remove anticommunist flyers and banish pro-life flyers to a remote "free speech kiosk" after a lengthy approval delay.

"A prohibition on 'inappropriate or offensive language or themes' does not have a core of readily identifiable, constitutionally proscribable speech" but rather requires a "subjective determination" that varies based on the "personal beliefs" of officials, the unanimous three-judge panel wrote in an unpublished memorandum, referring to the policy language.

Such a prohibition is also "likely too broad to be reasonably related to legitimate pedagogical concerns," according to the panel, composed of Clinton, George W. Bush and Obama appointees. 

The 9th Circuit was long perceived as the most liberal federal appeals court until President Trump's appointments started shifting the ideological balance. Young America's Foundation, which sponsors YAF chapters, crowed that it won over the "liberal stronghold."

The panel made quick work of the Clovis argument that removing the problematic words from the flyer policy ended the dispute.

President Lori Bennett, Vice President of Student Services Marco De La Garza, Dean of Student Services Gurdeep Hebert and Senior Program Advisor Patrick Stumpf "could easily reinsert the challenged provision" if the injunction were lifted, and they have "refused to disavow" the original policy as unconstitutional, the memorandum says.

The 9th Circuit is also not required to determine whether the "interior bulletin boards" on campus are a "nonpublic forum," making them "school-sponsored speech," before evaluating the potential "overbreadth" of the policy, according to the panel. 

Even if Clovis were correct about the designation, regulations cannot constitute "an effort to suppress expression merely because public officials oppose the speaker’s view," the court said, noting the 9th Circuit has yet to extend the school-speech doctrine to higher than K-12 schools.

The judges pointed to emails between Clovis administrators showing "they did not understand what speech the Policy proscribed," upholding the district court's overbreadth and vagueness basis for the injunction. 

The Foundation for Individual Rights and Expression, which is representing the chapter, noted that emails showed Bennett unilaterally ordered the anticommunist flyers' removal and invented an arbitrary justification on the spot: They were not "club announcements."

The case now continues in district court, where the former students plan to "hold the college accountable for censoring speech they disagree with," lead plaintiff Alejandro Flores said, referring to overcoming school employees' qualified immunity from personal liability as government officials.

The college's lawyers did not respond to Just the News queries on their next steps.

The State University of New York at Buffalo, meanwhile, is passing the buck to its student government for yanking recognition from its YAF chapter because of its national affiliation — and then revising the policy mid-litigation to require YAF to give up several legal rights if it wants recognition, which comes with access to student fees, meeting spaces and fundraising among other benefits.

The SUNY campus is legally responsible for granting the student government "free reign [sic] to implement unconstitutional policies," the YAF chapter's lawyers at the Alliance Defending Freedom said in an amended complaint filed July 26.

The Student Association "is a separate, self-governing non-profit organization, led by elected student leaders who serve and represent undergraduate students at the university" and establish policies "independent of the university," a UB spokesperson told WGRZ

That argument has fallen flat in other lawsuits concerning actions by student governments at other public institutions, including Queens College in the City University of New York system, which settled a similar case brought by the ADF in 2017. 

Worcester State University in Massachusetts didn't wait to get sued in 2020 when its student government denied recognition to a Turning Point USA chapter, also represented by FIRE. The school provided the "privileges" of recognition and pledged to train student leaders in First Amendment obligations so the chapter would get a fair shake for funding, the club told The College Fix at the time.

UB's student government has revised the recognition policy twice this year, both times seemingly to keep the YAF chapter out. The chapter initially achieved recognition in 2017 and now has more than 100 members, according to the amended lawsuit.

The first attempt -- a failure -- at silencing YAF at UB happened three weeks after the university refused to cancel YAF's March 10 event with conservative pundit Michael Knowles, who had recently given a Conservative Political Action Conference speech that said "transgenderism must be eradicated from public life entirely."

The second attempt at censoring YAF on March 27 "automatically" derecognized YAF because of its Young America's Foundation connection while exempting other recognized clubs with national affiliations but "different viewpoints" than YAF's, according to the suit.

The Student Association shifted gears again a week after YAF sought a preliminary injunction June 26, rescinding the national affiliation ban and replacing it with an "Acknowledgement of Club Officer Responsibilities" that officers of all recognized clubs must sign.

"No SA club may be a separate legal entity" or maintain "any accounts or financial activities outside of SA,” and their officers "may not sign contracts or otherwise enter into agreement on behalf of any SA club," according to the document. 

YAF says this functionally gives the student government authority to veto or indefinitely delay its events, which SA already did with the Knowles event by refusing to approve the speaker contract for nearly two months, only relenting three days before the event. 

The student government's bylaws further state that recognized clubs may not "take legal actions, commence litigation or undertake legal obligations," and its revised regulations for new clubs require SA signoff before recognized clubs may join "any outside organization."

This means YAF technically violates student government policy just by filing a federal lawsuit, their suit says. SA also presumes to override New York law defining the YAF chapter as an "unincorporated association" with the right to bring legal actions through its president or treasurer.

UB did not answer Just the News' queries to confirm WGRZ's report.

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