Public college officials who banned anticommunism, pro-life flyers appeal judge's legal rebuff
As campus activism returns amid COVID-19 restrictions, administrators target conservative speech.
Public college officials who reversed their approval to post anticommunist flyers on campus bulletin boards — and then banished pro-life flyers to a remote "free speech kiosk" — are appealing a federal judge's preliminary injunction against the flyer policy.
The Young Americans for Freedom chapter at California's Clovis Community College, represented by the Foundation for Individual Rights and Expression, sued four administrators in August, citing their emails discussing possible excuses to remove the club's flyers following complaints.
U.S. District Judge Jennifer Thurston blocked provisions of the flyer policy that require "preapproval from College administrators or staff and prohibits 'inappropriate or offens[iv]e language or themes,'" finding that YAF was likely to win the lawsuit.
The combination of these provisions "likely creates a chilling effect on student speech and an 'unacceptable risk of the suppression of ideas' otherwise protected by the First Amendment," Thurston wrote, calling the policy vague and its application "arbitrary and discriminatory."
It also causes irreparable harm by even temporarily restricting speech, the judge said, noting that Dean of Student Services Gurdeep Hebert admitted the Clovis "permit system" delayed the posting of the pro-life flyers — a rapid response to the Supreme Court's Dobbs hearing — for a full month.
Counsel for the four administrators, including President Lori Bennett, asked the 9th U.S. Circuit Court of Appeals to intervene last week without specifying the basis for the appeal.
While declining to provide the basis for the appeal, their lawyer Anthony DeMaria told Just the News the revised flyer policy has already taken effect, "and all campus clubs are able to post their materials without any of the prior concerns raised." No complaints have been subsequently filed, he said.
Clovis itself isn't a defendant, an objection raised by the administrators and rejected by Thurston, citing the 9th Circuit's reinstatement of a satirical campus newspaper's lawsuit against its public university president.
The lawsuit targets the administrators for personal liability, arguing they violated "clearly established" First Amendment precedents as evidenced by internal communications showing they "fabricated a pretext" for removing the anticommunist flyers "to hide their blatant viewpoint discrimination" and then applied it to the pro-life flyers.
Judge Thurston faulted the administrators' counsel for "failure to identify which facts [they believe] might be undisputed or provide authorities to support such contentions" and providing "little to no response" to the YAF chapter's primary claims — "prior restraint, overbreadth, and vagueness."
It's irrelevant whether the bulletin boards are a "nonpublic forum" subject to the "editorial discretion" of administrators, as they claimed, because Clovis "undisputedly opens the bulletin boards to third-party speakers" and therefore accepts viewpoint-neutral conditions, the order says.
It's also not credible to claim the bulletin boards are for "government speech," because the State Center Community College District, which governs Clovis, explicitly designates them for "student material" and "student use," according to the judge.
The existence of the free speech kiosk, which is far from student foot traffic, does not override the school's obligation to "exclude content-based limitations" in its regulation of student postings, Thurston wrote. She noted the administrators didn't dispute YAF's claims about the pointlessness of the kiosk for reaching students.
Foundation for Individual Rights and Expression
"Defendants' own proffered justification for determining allowable flyers on the bulletin boards" — whether they interest students – "invokes a question of their content," as does the vague prohibition on inappropriate and offensive content.
Not only is the policy broad enough to prohibit Black Lives Matter or Blue Lives Matter flyers, but YAF credibly argues that "all applications of the Flyer Policy provision are unconstitutional," undermining "the school's own interest in fostering a diversity of viewpoints on campus," Thurston wrote. The policy is not even "reasonably related to legitimate pedagogical concerns."
Clovis students aren't the only ones facing a circumscribed environment for free expression as campus activism resumes amid ongoing COVID-19 restrictions.
Cornell University students used "circus music," whistles and a "chain tactic" of consecutive outbursts to shut down an event last week with conservative firebrand and Cornell alum Ann Coulter, despite a pre-event warning from Associate Dean of Students Greta Kenney and several removals by security officers, The Cornell Review reported.
Vice President for University Relations Joel Malina apologized to Coulter, who gave up trying to speak less than halfway through, in a statement provided by media relations officer Rebecca Valli.
"Eight college-age individuals were removed from the auditorium," and any Cornell students among them "will be referred for conduct violations," Malina said. Valli declined to specify the range of sanctions they might face and didn't answer when asked for sanctions issued against students for previous disruptions.
Gonzaga University, a Jesuit institution, recently put the kibosh on a Zags for Life event featuring Catholic pro-life speaker Liz Wheeler, a former One America News Network anchor.
The ministry office overruled the Center for Student Involvement, which approved the event, claiming jurisdiction over Zags for Life because Gonzaga considers it a religious group, The College Fix reported. Zags for Life board member Grant Habersetzer said this means Gonzaga can block it from using the "thousands of dollars" it has privately raised.
Director of Mission and Ministry Luke Lavin told the club in an email he was "unaware" it was working with the conservative Young America's Foundation, which provides support to YAF chapters. He reportedly cited "the ambiguity around the requests around advisor change and club status" as grounds to block the event.
Habersetzer said the administration has repeatedly shut down its tabling events in the past year, sometimes without prior notice.
Gonzaga did not respond to Just the News queries seeking explanation of the basis for shutting down the event and status of the club's privately raised funds.