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Young America's Foundation v. Kaler

United States District Court, D. Minnesota

February 26, 2019

Young America's Foundation, a Tennessee nonprofit corporation, Students for a Conservative Voice, a registered student organization at the University of Minnesota, and Ben Shapiro, Plaintiffs,
Eric W. Kaler, President of University of Minnesota, in his official and individual capacities, Michael Berthelsen, Vice President of University Services of University of Minnesota, in his official and individual capacities, Matthew A. 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, and Erik Dussault, Assistant Director of Student Unions & Activities of University of Minnesota, in his official and individual capacities, Defendants.

          Tyson C. Langhofer, Alliance Defending Freedom, David A. Cortman and Travis C. Barham, Alliance Defending Freedom, Jonathan M. Larcomb, Alliance Defending Freedom, and Theodore C. Landwehr for Plaintiffs.

          Carrie Ryan Gallia, Brian J. Slovut, and Daniel J. Herber, University of Minnesota, Office of General Counsel, for Defendants.



         This case arises at the intersection of two competing freedoms: the freedom of public university student groups, and their invited guest speakers, to exercise their First Amendment rights, and the freedom of public universities to manage their facilities in the manner that best advances the University's educational mission.

         Plaintiffs - a University of Minnesota student group, Students for a Conservative Voice, as well as an outside organization dedicated to promoting conservative speech on campus, Young America's Foundation, and a conservative political commentator, Mr. Ben Shapiro - have brought “as-applied” and “facial” challenges to the University of Minnesota's policy for handling “large-scale events, ” under both the First and Fourteenth Amendments. In their “as-applied” challenge, Plaintiffs focus on the manner in which Defendants applied the University's “large-scale events” policy to a speech given by Mr. Shapiro on February 26, 2018. Defendants have moved to dismiss the complaint in its entirety.

         The Court grants Defendants' motion in part and denies it in part. The Court grants Defendants' motion with respect to Plaintiffs' “facial” First Amendment challenge, but denies Defendants' motion with respect to Plaintiffs' “as-applied” First Amendment challenge. Further, the Court grants Defendants' motion with respect to Plaintiffs' Fourteenth Amendment Due Process and Fourteenth Amendment Equal Protection claims. The Court explains its reasoning at greater length below.

         I. BACKGROUND [1]

         A. The Parties

         There are three Plaintiffs in this case. Plaintiff Young America's Foundation (“YAF”) is a nonprofit organization that was founded by the late conservative thinker William F. Buckley in the 1960s. (Am. Compl. [Doc. No. 25-2] ¶¶ 24, 79.) YAF hosts and co-sponsors conferences and lectures around the country, with the goal of introducing young people and university students to conservative viewpoints. (Id.)

         Plaintiff Students of a Conservative Voice (“SCV”) is a registered student group at the University of Minnesota. (Id. ¶ 25.) SCV attempts to introduce their classmates to “alternative, ” often conservative, viewpoints by way of “flyers, signs, peaceful demonstrations, hosting tables with information, inviting speakers to campus, and talking with fellow students.” (Id. ¶¶ 25-27.) According to SCV, this mission is important because “conservative viewpoints are notably absent from educational instruction at the University of Minnesota.” (Id. ¶¶ 25-27, 72.)

         Plaintiff Ben Shapiro is an “American political commentator, nationally syndicated columnist, author, radio talk show host, and attorney.” (Id. ¶ 28.)

         There are five Defendants in this case. Defendant Eric W. Kaler is the President of the University of Minnesota, a public university created by the State of Minnesota. (Id. ¶¶ 29-34, 51.) President Kaler “is responsible for the enactment, implementation, and enforcement of [University of Minnesota] policies affecting students, student organizations, faculty, and guests.” (Id. ¶¶ 52-53.)

         Defendant Michael Berthelsen is the Vice President of University Services at the University of Minnesota. (Id. ¶ 36.) Plaintiffs allege that Vice President Berthelsen consults with President Kaler over “certain University policies, ” and “their application to student speech.” (Id. ¶ 37.)

         Defendant Matthew Clark is the Chief of Police at the University of Minnesota. (Id. ¶ 40.) Plaintiffs allege that Chief Clark also consults with President Kaler (and Vice President Berthelsen) over “certain University policies, ” and “their application to student speech.” (Id. ¶ 41.)

         Defendant Troy Buhta is a Lieutenant in the University of Minnesota Police Department. (Id. ¶ 44.)

         Defendant Eric Dussault is the Assistant Director of Student Unions & Activities at the University of Minnesota. (Id. ¶ 48.)

         B. The Large-Scale Events Process (“LSEP”)

         This litigation centers around a University of Minnesota student affairs policy called the “Large-Scale Events Process” (“LSEP”). (See generally Compl., Ex. 1 [Doc. No. 1-1] (“LSEP”).) Because the Complaint does not allege when or how the LSEP came into existence, the Court simply details what the LSEP says on its face. See Neubauer v. FedEx Corp., 849 F.3d 400, 403 (8th Cir. 2017) (noting that, in deciding a motion to dismiss, a court may directly consider “all documents . . . attached to the complaint as exhibits”).

         The LSEP sets forth a process to be followed “by any registered student group proposing to host a large-scale event on the University of Minnesota campus.” (LSEP at 1.) The LSEP first defines “large scale event” as a “student group sponsored event taking place in a large campus venue or outdoor space that will draw a significant amount of the campus population, a large off-campus crowd, or represents a significant security concern (i.e., public figure, celebrity, etc).” (Id.) The LSEP then states that, although a student group has a right to reserve a “large campus venue” for such an event, “the reservation will only be confirmed upon approval by the Large-Scale Events Committee (“LSEC”).” (Id.) The LSEC includes representatives from various campus departments, such as “the University of Minnesota Police Department, University Services, Parking and Transportation, [and] Student Unions and Activities.” (Id.) To secure approval from the LSEC for a venue reservation, the student group must put together a “Large Scale Event Proposal, ” containing a variety of relevant logistical details, and then must meet with the LSEC, if asked. (Id.) Ultimately, the LSEC's “determination of whether the campus can support the [student group proposed] event” will be based on factors such as “other events happening on campus, human resources needed to support the event, the impact of the event on the campus community, and the impact of the event on the community surrounding campus.” (Id.)

         Plaintiffs allege that the LSEP is unconstitutional, on its face, under either the First Amendment or the Fourteenth Amendment's Due Process Clause. (See, e.g., Am. Compl. ¶¶ 63-70.) This is largely because the LSEP purportedly “does not provide any objective, non-content-based and non-viewpoint-based criteria for [University officials] to use when deciding to impose [] restrictions on a proposed event, ” and, further, “does not limit the discretion of [University officials] when deciding whether to apply the policy to student organizations' events.” (Id. ¶¶ 68-69.)

         C. The Shapiro Speech

         Sometime in fall of 2017, SCV decided that it wanted to bring Mr. Shapiro to campus for a lecture. This was so because, although SCV found Mr. Shapiro “to be an incredibly articulate, consistent, and academically accomplished leader in conservative thought, ” SCV “believed that Mr. Shapiro's viewpoints [were] treated unfairly on campus by University of Minnesota faculty and administrators alike.” (Id. ¶ 77.) With the assistance of YAF, SCV reached out to Mr. Shapiro, and Mr. Shapiro, in turn, agreed to come speak to University of Minnesota students (and members of the surrounding community) on February 26, 2018. (Id. ¶¶ 78-80; see also id. ¶ 80 (noting that YAF provided “assistance and financial support to bring Mr. Shapiro to the University of Minnesota's campus”).)

         In October 2017, several months before Mr. Shapiro's speech, SCV informed the University that it intended to bring Mr. Shapiro to campus the following February. (Id. ¶ 81.) According to Plaintiffs, “[b]efore any specific details were provided by SCV, Defendant Dussault [the Assistant Director of Student Unions & Activities] explicitly informed SCV that the Shapiro event would be subject to [the LSEP] and stated that he would schedule follow up meetings to discuss details.” (Id. ¶ 83.) Nonetheless, because Defendants had allegedly used the LSEP to relocate one of SCV's prior events (a speech by conservative commentator Lauren Southern) “on three occasions without obtaining SCV's prior permission” (id. ¶ 85), Plaintiffs allege that SCV immediately took the initiative of reserving “multiple potential rooms” on the centrally-located Minneapolis campus “to avoid being forced to host the Shapiro event in an undesirable location and to make sure that at least one room was available.” (Id. ¶ 87.) Because SCV's goal was to hold Mr. Shapiro's speech “in the largest venue available on the Minneapolis campus, ” the student group “placed reservation requests both verbally and via e-mail for several locations, ” with seating capacities ranging from 450 to 4, 000. (Id. ¶¶ 94-96.) Plaintiffs allege that, as of December 6, 2018, at least two of the three rooms SCV reserved were open and available for use on the evening of February 26, 2018 - Mayo Hall, which seats 455 attendees, and Willey Hall, which seats 1, 056 attendees. (Id. ¶¶ 99-102.) Consequently, on that date, SCV “formally requested use of Willey Hall.” (Id. ¶ 102.)

         Although the University of Minnesota-Twin Cities has a St. Paul campus that is, by Plaintiffs' admission, only a bus ride away from the Minneapolis campus (id. ¶ 139), Plaintiffs allege that “they always intended to host the Shapiro lecture on the Minneapolis campus” because that campus is “more convenient for the majority of students, ” and because hosting the lecture on the St. Paul campus “would inhibit attendance” and “burden the effectiveness of the speech.” (Id. ¶¶ 103-04.) Indeed, Plaintiffs allege, “many students on the Minneapolis campus go their entire undergraduate careers without ever visiting the St. Paul campus, ” in part because evening busses between the two campuses only run every 15-20 minutes. (Id. ¶ 139.)

         However, in late December 2017, Defendants, acting pursuant to the LSEP, determined that the Shapiro speech would be held in a venue on the St. Paul campus that could accommodate a maximum of 500 attendees. (Id. ¶ 105.) Specifically, Plaintiffs allege that Chief of Police Clark sent an e-mail, which was later forwarded to SCV, stating that “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.” (Id. ¶ 106-07; see also id. ¶ 108 (alleging that, “upon information and belief, ” President Kaler and Vice President Berthelsen participated in this decision).) Lieutenant Buhta and Mr. Dussault allegedly concurred with this assessment, and further asserted, in e-mails to SCV, that Willey Hall's “access to the [West Bank] Skyway” rendered the location unsafe to host Mr. Shapiro. (Id. ¶¶ 114-18.) In these exchanges, Lieutenant Buhta also referred to the University's decision to move Mr. Shapiro's speech to the St. Paul campus as “unfortunate.” (Id. ¶ 136.)

         Plaintiffs allege that Defendants' security concerns lacked support, especially two months prior to the event, and therefore constituted a mere pretext to “banish” Mr. Shapiro's “controversial” conservative views to an out-of-the-way location, where SCV and Mr. Shapiro would receive less attention from the campus. (Id. ¶¶ 105, 113-14.) In further support of this “pretext to discriminate” contention, Plaintiffs allege that (a) the University “routinely controls access to its West Bank Skyway, ” including by closing off the Skyway every weekday night after 10:00 PM and all day on Sundays (id. ¶¶ 118-23), and (b) concerns about “access to the West Bank Skyway” did not prevent the University and/or student groups from hosting well-known “liberal” public figures with “university-favored viewpoints” in centrally-located lecture halls connected to that Skyway, i.e., Justice Ruth Bader Ginsburg in September 2014, Justice Sonia Sotomayor and U.S. Senator Bernie Sanders in October 2016, former U.S. Senator Al Franken in June 2017, and U.S. Senator Amy Klobuchar, former U.S. Vice President Walter Mondale, U.S. Senator Elizabeth Warren, and then-U.S. Representative Keith Ellison in October 2017. (Id. ¶¶ 124-30.)

         In response, SCV decided to reserve the North Star Ballroom, a 400-person venue on the St. Paul campus. (Id. ¶ 141.) According to Plaintiffs, “[t]ickets for the event sold out in only a few short hours after they were made available, ” with SCV receiving “725 inquiries within the first 24 hours of offering the tickets.” (Id. ¶ 142.) This success prompted Plaintiffs to “renew[] their request for use of [the 1, 000-seat] Willey Hall.” (Id. ¶ 143.) Moreover, Plaintiffs allege that, after they renewed their request for Willey Hall, a member of the University's Board of Trustees “sent an e-mail to Defendant Dussault, ” on January 26, 2018, “requesting further information” about the situation. (Id. ¶ 144.) Plaintiffs further allege that this inquiry led the University to hold a press conference on February 9, 2018 to address “the backlash received by the Board of Trustees.” (Id. ¶ 149.) Plaintiffs describe this press conference, organized by Matt Kramer, Vice President of University Relations, as an “attempt[] to justify” the University's “refusal” to accommodate “SCV's request for the available Willey Hall venue.” (Id. ¶¶ 150-51.) It appears that, after this press conference, Plaintiffs did not request to move the Shapiro speech again.

         Mr. Shapiro ultimately spoke to a crowd of around 450 people in the North Star Ballroom on February 26, 2018. (Id. ¶ 153.) However, Plaintiffs contend, Defendants' actions prevented Plaintiffs from “deliver[ing] their message to hundreds of students that wanted to attend the event, ” which “deprived” those students “the opportunity to . . . participate in an important dialogue on matters of public concern.” (Id. ¶ 155.) Moreover, Plaintiffs allege, “[n]o more than two dozen protestors appeared outside the Shapiro lecture on the day of the event.” (Id. ¶ 113.)

         Because of this experience, Plaintiffs' complaint concludes, SCV has “modified, self-censored and suppressed its speech . . . by choosing not to invite certain speakers to campus whose content and viewpoint Defendants or other members of the campus community will consider to be more objectionable or controversial than other speakers.” (Id. ¶ 193.)

         D. Procedural History

         On July 3, 2018, Plaintiff filed a complaint alleging that the LSEP violated the First and Fourteenth Amendment, both facially and as-applied to the Shapiro speech, and accordingly requested damages for past harm, as well as a permanent injunction prohibiting Defendants “from enforcing” the LSEP, or “otherwise disrupting or preventing Plaintiffs from engaging in lawful First Amendment activity at the University.” (Compl. Prayer for Relief.) Defendants moved to dismiss the complaint in its entirety a little over a month later, on August 22, 2018. (See Defs.' Br. in Support of Mot. to Dismiss [Doc. No. 16] (“Defs.' Br.”).) Full briefing on the motion followed. (See Pls.' Br. in Opposition to Defs.' Mot. to Dismiss [Doc. No. 20] (“Pls. Opp. Br.”); Defs.' Reply Br. [Doc. No. 23].) The Court, in turn, entertained oral argument on November 30, 2018.


         Federal Rule of Civil Procedure 8 requires that a complaint present “a short and plain statement of the claim showing that the [plaintiffs are] entitled to relief.” Fed.R.Civ.P. 8. However, to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), and therefore advance a claim into discovery, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Neubauer, 849 F.3d at 404 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Although “[t]he plausibility standard is not akin to a probability requirement, ” it does require a complaint to present “more than a sheer possibility that a defendant has acted unlawfully.” Id.

         Here, Defendants levy a variety of procedural and substantive attacks on Plaintiffs' complaint, which the Court will address one-by-one. The Court will first consider Defendants' two procedural arguments: One, that Plaintiffs YAF and Mr. Shapiro lack “standing” to bring this suit, and, two, that Plaintiffs have failed to allege facts personally connecting Defendants Kaler, Berthelsen, and Clark to the decision to move the Shapiro speech.

         The Court will then turn to the merits of Plaintiffs' claims. The Court will first address the viability of Plaintiffs' First Amendment claim, both facially and as-applied, as well as Defendants' qualified immunity defense to this claim. After that, the Court will consider Plaintiffs' Fourteenth Amendment Due Process Clause claim. The Court will conclude with an evaluation of Plaintiffs' ...

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