United States District Court, D. Minnesota
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.
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
Ryan Gallia, Brian J. Slovut, and Daniel J. Herber,
University of Minnesota, Office of General Counsel, for
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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.
- 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
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.
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.)
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. ¶¶
Ben Shapiro is an “American political commentator,
nationally syndicated columnist, author, radio talk show
host, and attorney.” (Id. ¶ 28.)
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.)
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.)
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.)
Troy Buhta is a Lieutenant in the University of Minnesota
Police Department. (Id. ¶ 44.)
Eric Dussault is the Assistant Director of Student Unions
& Activities at the University of Minnesota.
(Id. ¶ 48.)
The Large-Scale Events Process (“LSEP”)
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”).
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.”
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.
The Shapiro Speech
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”).)
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. ¶
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.)
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.)
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.
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
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. ¶
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.
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.
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.”
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
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' ...