Reopen ASU free-speech suit, 8th Circuit filing asks
An appeal notice filed Wednesday seeks to reopen a free-speech rights lawsuit against Arkansas State University leaders despite changes to university policy that led a federal district judge to earlier dismiss the case as moot.
The appeal filed on behalf of the ASU chapter of Turning Point USA and a now-former ASU student will involve a “broader policy issue that sets precedent for future cases,” Tyson Langhofer, an attorney with the nonprofit legal advocacy group Alliance Defending Freedom, said in a phone interview.
The appeal will be filed with the 8th U.S. Circuit Court of Appeals at St. Louis.
President Donald Trump and Education Secretary Betsy DeVos have warned colleges about violating students’ First Amendment free-speech rights, while advocacy groups and lawmakers — including in Arkansas — have pushed for policy changes. Some leaders in higher education have defended campuses as already committed to free expression.
“We would prefer not to expend additional resources on this matter, but we will respond in due course,” ASU spokesman Jeff Hankins said in an email. “We continue to believe that this lawsuit has no merit whatsoever.”
In December 2017, the Alliance Defending Freedom filed a lawsuit in U.S. District Court in Jonesboro on behalf of the ASU chapter of Turning Point USA, an organization known for supporting politically conservative causes, and Ashlyn Hoggard, a student at the time and2019 graduate of ASU, Langhofer said.
“Our clients’ rights, Constitutional rights, were violated by the university in refusing to allow them to speak on a public area of campus without prior permission, and the court never decided that. That’s something we think is important and an important part of justice,” Langhofer said.
In court documents, ASU has denied violating freespeech and due-process rights.
Last month, U.S. District Court Judge Leon Holmes, in dismissing the case, cited the March repeal of ASU’s former policy following the legislative approval of a state law that “prohibits state-supported universities from limiting expressive activities to only designated areas.”
“Our policy complies with state law,” Hankins said.
Langhofer said the issue is not with ASU’s current policy, but the previous policy.
He claimed there is evidence that ASU’s old policy was not “content neutral.” In court documents, ASU has described its now-former policy as “content and viewpoint neutral.”
“It’s been established for more than 100 years that the government cannot take content into account when determining whether to allow someone to speak or not,” Langhofer said.
Holmes, in his opinion and order, cited a previous legal case, Bowman v. White, that involved the University of Arkansas, Fayetteville’s freespeech related policy. Holmes, in addition to dismissing the case, ruled that a legal doctrine known as “qualified immunity” — described by Holmes as protecting “government officials who act reasonably” — shielded ASU trustees from the lawsuit.
“The policy in Bowman stipulated it was content neutral. In this case, the policy definitely was not content neutral,” Langhofer said, adding that the ASU case also differs because it is about a student’s rights, in contrast to the Bowman case, which was about a non-student’s rights.