Dismissal of free-speech suit against ASU trustees upheld

A federal appellate court Monday upheld the dismissal of a First Amendment lawsuit filed against Arkansas State University while nevertheless finding a university policy in place in 2017 to be unconstitutional as applied to a student seeking to recruit members to an unregistered organization.

The 8th Circuit Court of Appeals opinion concluded that ASU trustees named in the case are entitled to qualified immunity, rejecting arguments made by attorneys for Ashlyn Hoggard and a chapter of the conservative organization Turning Point USA.

“We are pleased overall with the decision of the 8th Circuit Court of Appeals. We have no further comment at this time,” Jeff Hankins, a spokesman for the ASU System, said in an email.

U.S. Education Secretary Betsy DeVos highlighted ASU in a 2018 speech criticizing college administrators and faculty for “manipulating [the] marketplaces of ideas,” but an ASU attorney maintained that the university had never denied a person’s request to speak on campus.

In October 2017, Hoggard and a representative of conservative group Turning Point USA were told by an ASU administrator that they could not have an information table in an area of Heritage Plaza reserved for “tabling” by registered student organizations.

The appellate opinion states that “the Tabling Policy’s enforcement against Hoggard on Oct. 11, 2017, was unreasonable and unconstitutional.”

However, the defendants named in the lawsuit “may reasonably have not understood this at the time,” the opinion states.

Hoggard, a 2019 ASU graduate, and the Turning Point chapter were represented by attorneys with the Alliance

Defending Freedom, a Christian legal advocacy group.

Chris Schandevel, an attorney with the group, said in a statement that “by affirming that Arkansas State officials violated Ashlyn’s constitutional rights, the court ensured that the law is clearly established going forward.”

The appeal was filed after a change in state law led ASU to revise its campus speech policies in March 2019.

State lawmakers, in Act 184 of 2019, prohibited public colleges and universities from establishing free-expression zones.

Arkansas law now states that members of a campus community wanting “to engage in noncommercial activity in an outdoor area of campus of a state-supported institution of higher education shall be permitted to do so freely,” so long as their conduct is not unlawful and “does not materially or substantially disrupt” university functions.

In August 2019, a decision to dismiss the case by U.S. District Court Judge Leon Holmes cited the repeal of ASU’s policy.

Tyson Langhofer, with the Alliance Defending Freedom, in a September 2019 phone interview said that a reason to appeal the dismissal was to pursue a “broader policy issue that sets precedent for future cases.”

Schandevel, in a statement Monday to the Democrat-Gazette, said “we’ll be deciding in the next several days whether more can be gained by appealing further.” He said the lawsuit “prompted the Arkansas General Assembly to enact the FORUM Act,” a name sometimes used to refer to the law.

U.S. Circuit Judge L. Steven Grasz wrote the opinion of the federal appellate court.

In a concurring opinion, U.S. Circuit Judge James B. Loken criticized the actions of the two ASU administrators confronting Hoggard in 2017, stating that she was “poorly treated” by Sarah Ponder and Elizabeth Rouse, neither of whom was named as a defendant in the lawsuit.

“In the modern university, it is all too common for petits fonctionnaires, arbitrarily enforcing broad rules and policies, to take action that may be politically correct but is not viewpoint neutral. When such actions trample a student’s constitutionally protected right of free speech, those responsible should be held accountable,” Loken wrote.

However, Grasz, in the main opinion, noted that “Hoggard does not allege viewpoint discrimination.”

Loken, in his concurring opinion, remarked how those suing ASU “did not sue Ponder or Rouse, perhaps because Turning Point’s attorneys saw ‘bigger fish to fry’ in a facial attack on multiple University policies,” adding that the Arkansas state law known as the FORUM Act “mooted this cause célèbre.”

Loken stated that the ASU “Tabling Policy” was unwritten, and so the actions taken against Hoggard “for all the record reveals, may have been an ad hoc creation of Ponder and Rouse to further their personal notions of what student speech was appropriate” in the patio area.

Loken’s concurring opinion states that the analysis of the “Tabling Policy” in place “addresses a hypothetical, not this case.”

Referring to the constitutionality analysis labeled as Part II. A., Loken states: “I therefore suggest that, as precedent, Part II. A. be treated as a thoughtful but not controlling advisory opinion.”

Also hearing the appeal was U.S. District Judge Stephen R. Clark Sr., who did not write a separate opinion.

Schandevel said two judges agreed that Hoggard’s rights were violated, and “that opinion is controlling.”