Students for Life USA v. Waldrop et al

Filing 49

ORDER granting in part and denying in part 31 Motion to Dismiss. Signed by Chief Judge William H. Steele on 2/4/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STUDENTS FOR LIFE USA, etc.,
Plaintiff,
v.
TONY G. WALDROP, etc., et al.,
Defendants.

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) CIVIL ACTION 14-0157-WS-B
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ORDER

This matter is before the Court on the defendants’ motion to dismiss. (Doc.
31). The parties have filed briefs in support of their respective positions, (Docs.
31, 41, 43), and the motion is ripe for resolution. After careful consideration, the
Court concludes that the motion is due to be granted in part and denied in part.
BACKGROUND
According to the amended complaint, (Doc. 29), the plaintiff is a student
organization at the University of South Alabama (“the University”). The plaintiff
seeks to promote its pro-life message through flyers, signs, peaceful
demonstrations and other means. In October 2013 and again in February 2014, the
plaintiff sought permission to place a “cemetery of innocents” at various campus
locations, including an area between an academic building (“Shelby Hall”) and
two public roads (“Old Shell Road” and “University Boulevard”). Permission to
use such locations was denied by University officials. The plaintiff ultimately
utilized an area around the student center (“the Speech Zone”) that the
University’s policy (“the First Policy”) identified as the only campus location
permitted to be used for student speech. In August 2014, the University allegedly
adopted another policy (“the Second Policy”), which expands the locations that

can be used for student speech but which continues to prohibit such speech within
the campus perimeter (“the Perimeter”), which includes most areas between the
street side of campus buildings and the sidewalks paralleling Old Shell Road and
University Boulevard. (Id. at 4, 11, 13-20).
The defendants are the University’s president, Tony Waldrop; its vicepresident for student affairs, John Smith; its assistant vice-president for student
affairs and dean of the plaintiff, Michael Mitchell; and the dean of its college of
engineering, John Steadman. All four are sued in both their official and their
individual capacities. (Doc. 29 at 1).
Count One of the amended complaint alleges that the First and Second
Policies violate the plaintiff’s First Amendment rights of free speech. Counts Two
and Three allege that the First and Second Policies violate the plaintiff’s due
process and equal protection rights, respectively. The amended complaint seeks as
relief: a declaration that the Policies violate the plaintiff’s constitutional rights; an
injunction against enforcement of the Policies and associated practices; an award
of nominal damages; and attorney’s fees and costs. (Doc. 29 at 26-38).
The defendants seek the dismissal of: (1) all claims regarding the First
Policy; (2) all claims against them in their individual capacities; and (3) all asapplied challenges to the Second Policy. (Doc. 31 at 13).
DISCUSSION
“There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary
judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995). The Court’s review on this motion to dismiss is similarly limited to those
arguments the parties have expressly advanced. E.g., Jurich v. Compass Marine,
Inc., 908 F. Supp. 2d 1225, 1228 (S.D. Ala. 2012). Moreover, “a passing
reference to an issue in a brief [is] insufficient to properly raise that issue,”
Transamerica Leasing, Inc. v. Institute of London Underwriters, 430 F.3d 1326,
2

1331 n.4 (11th Cir. 2005), and the Court will not supply legal or analytical support
the parties have declined to offer themselves.
I. First Policy.
The defendants argue that the plaintiff’s challenge to the First Policy is
moot and that it violates the Eleventh Amendment.
A. Mootness.
The defendants argue that the plaintiff’s challenge to the First Policy has
been mooted by adoption of the Second Policy. (Doc. 31 at 9-11). “[A] case is
moot when it no longer presents a live controversy with respect to which the court
can give meaningful relief.” Troiano v. Supervisor of Elections, 382 F.3d 1276,
1282 (11th Cir. 2004) (internal quotes omitted). If a case is or becomes moot,
“dismissal is required because mootness is jurisdictional.” Id. (internal quotes
omitted). “Whether a case is moot is a question of law ….” Id.
Mootness may occur when the defendant voluntarily ceases the challenged
conduct. However, “[a] defendant claiming that its voluntary compliance moots a
case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.” Doe v.
Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014) (internal quotes omitted). The
defendants here are government actors, but “[t]he Supreme Court has applied this
same standard in cases involving government actors.” Id.
Unlike a private defendant, however, a government actor can raise a
“rebuttable presumption that the objectionable behavior will not recur.” Troiano,
382 F.3d at 1283 (emphasis in original).1 Thus, “a challenge to a government
policy that has been unambiguously terminated will be moot in the absence of
1

See also Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir.
2007) (confirming that “private citizens are not entitled to this legal presumption”).

3

some reasonable basis to believe that the policy will be reinstated if the suit is
terminated.” Id. at 1285. To obtain the benefit of the rebuttable presumption, the
government defendant bears the “initial burden” to show that the offending policy
has been unambiguously terminated. Doe, 747 F.3d at 1323.
“In general, the repeal of a challenged statute is one of those events that
makes it absolutely clear that the allegedly wrongful behavior … could not
reasonably be expected to recur.” Harrell v. Florida Bar, 608 F.3d 1241, 1265
(11th Cir. 2010) (internal quotes omitted). However, the unambiguous termination
of a challenged policy can be established, and the consequent rebuttable
presumption arise, “[e]ven short of so weighty a legislative act.” Id. at 1266. The
“repea[l] or amend[ment] [of] a challenged statute or policy [is] often a clear
indicator of unambiguous termination.” Doe, 747 F.3d at 1322.
The defendants have offered no affidavit for the proposition that the First
Policy has been repealed or otherwise unambiguously terminated. They have,
however, submitted uncontroverted evidence that the First Policy, which appeared
in the 2013-2014 student handbook,2 was replaced by the Second Policy in the
2014-2015 student handbook. (Doc. 29-10; Doc. 31 at 3 n.5 (providing online
citation)). The student handbook is a joint publication of the student government
association and the University, (Doc. 29-4 at 3), and it contains “the most current
information at the time of publication.” (Id.). Moreover, the Second Policy
covers the same issues concerning expressive activity as the First Policy. The
plaintiff denies that the Second Policy has been adopted and the First Policy
“repealed,” (Doc. 41 at 6), but it offers no explanation how, under the
circumstances just described, the First Policy could be anything other than
terminated. Because it is clear that the Second Policy is now in force, and because
it is clear that the First Policy is not, and could not be, simultaneously in force, the
Court finds that the First Policy has been unambiguously terminated. Whether it
2

(Doc. 29-4 at 7; Doc. 29-5 at 6).

4

was terminated by formal repeal (which is unknown) or by supersession (which is
obvious) is irrelevant.3
Because the defendants have met their initial burden of showing that the
First Policy has been unambiguously terminated, the plaintiff’s challenge to that
policy is moot unless there is “some reasonable basis to believe that the policy will
be reinstated if the suit is terminated.” Troiano, 382 F.3d at 1285. “Mere
speculation that the [defendant] will return to its previous ways is no substitute for
concrete evidence of secret intentions.” National Advertising Co. v. City of
Miami, 402 F.3d 1329, 1334 (11th Cir. 2005).
“[W]here the circumstances surrounding the cessation suggest that the
defendant is attempting to manipulate the court’s jurisdiction to insulate a
favorable decision from review, [citations omitted], courts will not deem a
controversy moot.” Harrell, 608 F.3d at 1266 (internal quotes omitted). “More
generally, the timing and content of a voluntary decision to cease a challenged
activity are critical in determining the motive for the cessation and therefore
whether there is any reasonable expectation … that the alleged violation will
recur.” Id. (internal quotes omitted). “As for timing, a defendant’s cessation
before receiving notice of a legal challenge weighs in favor of mootness, [citation
omitted], while cessation that occurs late in the game will make a court more
skeptical of voluntary changes that have been made.” Id. (internal quotes
omitted). “With respect to content, we look for a well-reasoned justification for
3

“[T]he timing and content of the decision are also relevant in assessing whether
the defendant’s ‘termination’ of the challenged conduct is sufficiently ‘unambiguous’ to
warrant application of the Troiano presumption ….” Harrell, 608 F.3d at 1266.
“Timing” looks to when the cessation occurred vis-à-vis the plaintiff’s legal challenge,
while “content” looks for “a well-reasoned justification for the cessation.” Id. The
plaintiff does not ask the Court to consider timing and content in this context, and it
appears these circumstances are chiefly, if not exclusively, relevant when there is not, as
here, a facially obvious termination of a formal policy. See, e.g., id. at 1252, 1267-68
(considering the timing and content of a board’s unexplained decision to reverse a
committee’s determination that the plaintiff’s legal advertisement violated bar rules,
which might have been only a decision not to enforce the rules against the plaintiff in the
particular case).
5

the cessation as evidence that the ceasing party intends to hold steady in its revised
… course.” Id.; accord Rich v. Secretary, Florida Department of Corrections, 716
F.3d 525, 532 (11th Cir. 2013) (“[W]e look to whether the change in government
policy or conduct appears to be the result of substantial deliberation.”) (internal
quotes omitted). In addition, “we ask whether the government has consistently
applied a new policy or adhered to a new course of conduct.” Id. (internal quotes
omitted). Finally, it may be significant whether the defendant “promised not to
resume the prior practice.” Id. While “[t]hese factors are not exhaustive,” Doe,
747 F.3d at 1323, the plaintiff relies on them and no others to establish a
reasonable basis to believe the First Policy will be reinstated if the action is
dismissed. (Doc. 41 at 16-17).
As for timing, the Second Policy was adopted on or about August 8, 2014,
approximately four months after suit was filed and the University’s counsel
notified of the suit. (Doc. 22; Doc. 29, ¶ 153). The plaintiff stresses that the First
Policy was in effect when the defendants “receiv[ed] notice of a legal challenge,”
Harrell, 608 F.3d at 1266, but it ignores the promptness with which the defendants
responded to that notice by replacing the First Policy with the Second. The
change was not made “late in the game,” id., but at a time when all that had
occurred in this litigation was extended settlement negotiations (instigated by the
plaintiff contemporaneously with filing the complaint and continued by the
plaintiff throughout) and service of process (which occurred barely three weeks
before the Second Policy was adopted). (Docs. 22, 23). This timing indicates a
genuine effort to resolve the dispute informally and an efficient development of a
comprehensive policy covering a complex subject; it does not suggest a subterfuge
to deprive the Court of jurisdiction so that the defendants can then replace the
Second Policy with the First Policy.
As for content, the plaintiff itself, in its amended complaint, articulates the
defendants’ “well-reasoned justification” for replacing the First Policy:
“Defendant Waldrop instructed the Defendants to change and alter the First Policy
6

to comply with constitutional mandates ….” (Doc. 29, ¶ 29). There is no
suggestion here that the defendants replaced the First Policy with the crass motive
of gaming the system, obtaining dismissal, and then reverting to old ways; instead,
the plaintiff credits the defendants with the honorable motive of upholding the
Constitution.4
The plaintiff denies that the defendants adopted the Second Policy as a
“result of substantial deliberation,” (Doc. 41 at 17), but its own allegations again
belie such a contention. According to the amended complaint, the Second Policy
was the result of a “process,” one in which three of the defendants were personally
involved. (Doc. 29, ¶¶ 28, 39, 56). In addition, the length and detail of the
Second Policy, and the multiple changes it makes from the First Policy, reflect that
some degree of care attended its creation. The plaintiff insists the Second Policy
“materialized like a bolt out of the blue,” but the case on which it relies for this
colorful imagery involved a policy that was unwritten, unannounced and unknown
until the day it was enforced against the plaintiffs. OSU Student Alliance v. Ray,
699 F.3d 1053, 1064 (9th Cir. 2012). Nothing remotely of the sort is in play here.
As for consistency of application, the plaintiff correctly notes that the
Second Policy has been in force for only a few months. But the plaintiff does not
explain how this circumstance indicates that the defendants are itching to replace
the Second Policy with the First. All policies have a birthdate, and the mere fact
that a policy is new cannot of itself make it reasonable to believe the policy is
already targeted for elimination. There is no evidence the Second Policy has been
applied, but there is no evidence that, since August 2014, there has been any
occasion to apply it, and certainly no indication that the First Policy has been
applied in lieu of the Second.
4

Statements in the pleadings may constitute judicial admissions. See, e.g.,
Nichols v. Barwick, 792 F.2d 1520, 1523 (11th Cir. 1986); Kenneth W. Graham, Jr. &
Michael H. Graham, 30B Federal Practice & Procedure § 7026 (online ed. 2014).
Admissions or not, the plaintiff’s allegations flatly contradict its contention that there is a
reasonable basis to believe the defendants will reinstate the First Policy.
7

The plaintiff complains that the defendants “have never promised not to
resume the First Policy.” (Doc. 41 at 17). The defendants state in brief that the
University “has no intention of reinstating the First Policy,” (Doc. 31 at 11), but
the plaintiff scoffs that “[s]tatements by counsel in briefs are not evidence.” (Doc.
41 at 16 n.5). True enough, but the Eleventh Circuit, in ruling that a challenge to a
sign ordinance was moot, expressly relied on statements by counsel, orally and in
brief, denying the defendant’s intention to resurrect the old ordinance after it was
significantly amended. Coral Springs Street Systems, Inc. v. City of Sunrise, 371
F.3d 1320, 1332-33 (11th Cir. 2004). The plaintiff has not explained why such an
assurance is less adequate here than it was in Coral Springs.
The allegations of the amended complaint once again strengthen the
inference that the defendants will not revert to the First Policy. The plaintiff
insists that the Second Policy can be changed “only with the prior approval of
Defendant Smith and the Defendant Waldrop.” (Doc. 29, ¶ 37). The plaintiff does
not explain why Waldrop and Smith – who ordered that the First Policy be brought
into compliance with the Constitution, (id., ¶¶ 29, 40) – can reasonably be
expected to approve the reinstatement of the allegedly unconstitutional First
Policy.
The plaintiff cites four cases as support for the proposition that there is a
reasonable basis to believe the defendants will reinstate the First Policy if its legal
challenge is ruled moot. (Doc. 41 at 16-17 & 16 n.6). The plaintiff finds Rich
significant because the change occurred after suit was filed. The defendant in
Rich, however, waited over two years after suit was filed and did not act until it
was also sued by the Department of Justice and until just before appellate
argument – timing that clearly qualifies as “late in the game.” 716 F.3d at 532.
The plaintiff relies on National Association of Boards of Pharmacy v. Board of
Regents, 633 F.3d 1297 (11th Cir. 2011), as showing a lack of substantial
deliberation, but in that case there was no written policy and no justification
offered for the change, just an unexplained verbal decision to cancel a board
8

review course. Id. at 1312. The plaintiff cites Jager v. Douglas County School
District, 862 F.2d 824 (11th Cir. 1989), as rejecting mootness when the change was
made under imminent threat of a lawsuit, but the focus of the Jager Court’s
mootness analysis was not timing but rather the defendants’ failure to formalize
the change as policy (instead leaving implementation of the change up to
individual principals), plus their failure to promise not to engage in the former
practice (as the absence of a formal policy threatened), plus their continued
insistence on appeal that the former practice should be declared constitutional. Id.
at 833-34. The plaintiff cites Rich a second time, for the defendant’s failure to
promise not to resume its prior practice – a circumstance that, as noted previously,
is not presented here. Moreover, unlike here, the defendant in Rich also changed
course “late in the game” and continued to insist on appeal that its prior conduct
be ruled constitutional. 716 F.3d at 532. Finally, the plaintiff compares the
newness of the Second Policy with Jews for Jesus, Inc. v. Hillsborough County
Aviation Authority, 162 F.3d 627 (11th Cir. 1998), where the Court noted that the
evidence suggested the new policy had been consistently applied for three years.
Id. at 629. The Eleventh Circuit, however, did not indicate that the new policy
must be applied consistently for any particular length of time (or at all) as a
predicate to a finding of mootness.
The Court has studied all the Eleventh Circuit cases cited by the parties and
many more besides. None involves a fact pattern supporting the conclusion that
the circumstances of this case could, much less must, establish a reasonable basis
for believing the defendants will reinstate the First Policy if the instant challenge
is declared moot. For the reasons set forth above, the Court finds no reasonable
basis to believe the defendants will do so.
The plaintiff argues that its challenge to the First Policy is not moot
because it is capable of repetition yet evading review. (Doc. 41 at 8). However,
“[a] holding that there is no reasonable expectation that the conduct will recur also

9

precludes application of the ‘capable of repetition, yet evading review’ doctrine.”
Jews for Jesus, 162 F.3d at 629 n.4.
The defendants argue that “all claims relating to the First Policy” are due to
be dismissed as moot. (Doc. 31 at 9). Elsewhere, however, they identify only the
requests for declaratory and injunctive relief as moot. (Id. at 11). The plaintiff
concedes that mootness would eliminate its requests for equitable relief in
connection with the First Policy, but it argues that its request for damages for
violations of its constitutional rights visited by the First Policy is not moot. (Doc.
41 at 16 n.4, 17). The plaintiff is correct. “Because [the plaintiff] has requested
damages, however, the changes made to the ordinance do not make this case
moot.” Granite State Outdoor Advertising, Inc., v. City of Clearwater, 351 F.3d
1112, 1119 (11th Cir. 2003); accord KH Outdoor, L.L.C. v. Clay County, 482 F.3d
1299, 1303 (11th Cir. 2007).
B. Eleventh Amendment.
The defendants claim the protection of the Eleventh Amendment with
respect to all claims against them for declaratory and injunctive relief in their
official capacities related to the First Policy. They acknowledge that the Eleventh
Amendment “does not generally prohibit suits seeking only prospective injunctive
or declaratory relief,” Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326,
1337 (11th Cir. 1999), but they note that it does prohibit declarations that past
conduct violated the plaintiff’s rights. The defendants assert that the amended
complaint as to the First Policy seeks equitable relief only as to historical wrongs
and that this is barred by the Eleventh Amendment. (Doc. 31 at 4-5).5
The plaintiff responds that it is also seeking prospective declaratory and
injunctive relief with regard to the First Policy. (Doc. 41 at 5). The amended
5

Neither the defendants nor the plaintiff addresses whether federal suits against
the University are subject to the Eleventh Amendment; the Court assumes for argument
that they are.

10

complaint, which asks for a declaration that the defendants “are violating [The
plaintiff’ constitutional rights] under the First Policy” and for “an injunction
against Defendants’ First Policy,” (Doc. 29, ¶¶ 250, 265, 291) confirms the
plaintiff’s position. The prayer for relief, which requests a declaration that the
“First Policy violates Plaintiff’s rights” and an injunction against “enforcing the
First Policy and associated practices,” (id. at 37-38, ¶¶ (A), (B), (E)), does so as
well. The defendants’ unexplained assertion that the amended complaint does not
seek prospective relief as to the First Policy is not well taken. The Eleventh
Amendment precludes the plaintiff from obtaining retrospective declaratory or
injunctive relief, but it does not bar the plaintiff’ explicit request for prospective
declaratory and injunctive relief as to the First Policy.
In their reply brief, the defendants argue that, even though the amended
complaint does seek prospective relief, it does not allege “any ongoing or live
harm for which prospective relief is needed from the First Policy.” (Doc. 43 at 23). This is a new argument, not asserted in the defendants’ principal brief.6
“District courts, including this one, ordinarily do not consider arguments raised for
the first time on reply.” Gross-Jones v. Mercy Medical, 874 F. Supp. 2d 1319,
1330 n.8 (S.D. Ala. 2012) (citing cases and explaining the underlying rationale).
The defendants identify no reason to depart from this well-established rule, and
the Court declines to do so.

6

The argument in the defendants’ principal brief was that the amended complaint
does not seek prospective relief – an issue that implicates the Eleventh Amendment and
in support of which the defendants cited only those paragraphs of the amended complaint
that articulate the plaintiff’s requested relief. (Doc. 31 at 5). The argument in the
defendants’ reply brief is that there is no factual basis in the amended complaint for an
award of prospective relief – an issue that does not implicate the Eleventh Amendment
and which was not fairly raised or even hinted at in their principal brief.

11

II. Nominal Damages.
The plaintiff seeks an award of nominal damages against each of the
defendants in their individual capacities. (Doc. 29, ¶¶ 248, 263, 289). The
defendants argue that the state of Alabama is the real party in interest and that they
are protected by qualified immunity.
A. Real Party in Interest.
“The Eleventh Amendment bars a suit against state officials when the state
is the real, substantial party in interest.” Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 101 (1984) (internal quotes omitted). In determining
whether the state is the real party in interest, “[t]he general rule is that a suit is
against the sovereign if the judgment sought would expend itself on the public
treasury or domain … or if the effect of the judgment would be to restrain the
Government from acting, or to compel it to act.” Harbert International, Inc. v.
James, 157 F.3d 1271, 1277 n.3 (11th Cir. 1998) (internal quotes omitted). The
defendants, quoting Pennhurst and Harbert for these propositions, assert that the
state is the real party in interest because the amended complaint does not allege
that they violated policy but only that they developed and enforced policy. (Doc.
31 at 5-7).
The defendants’ argument is something of a non sequitur, since it does not
address what they concede are the determinative questions: (1) whether the
judgment (if damages) would be paid by the state, and (2) whether the judgment
(if injunctive) would require the state to do or not do something. Because the
defendants challenge only the demand for damages, the second question is not on
the table.7 The first question asks whether “the judgment must, under all

7

In their reply brief, the defendants reference the amended complaint’s request
for declaratory and injunctive relief, and they insist that “[t]his fits squarely into the rule”
expressed in Harbert. (Doc. 43 at 7). And so it does, but the issue, as framed by the
defendants, is limited to an attack on the plaintiff’s “individual capacity claims for
12

circumstances, be paid out of state funds.” Jackson v. Georgia Department of
Transportation, 16 F.3d 1575, 1577 (11th Cir. 1994) (emphasis in original)
(internal quotes omitted). Here, and as the defendants acknowledge, (Doc. 31 at 4
n.6), damages are sought against the defendants explicitly and exclusively in their
individual capacities. “The essence of an individual capacity suit is that the
plaintiff is seeking to recover from the individual defendant, who is personally
liable for the judgment.” Jackson, 16 F.3d at 1577. The defendants offer no
explanation how damages sought only from them personally could under no
circumstances be paid with non-state funds. That silence is fatal to their argument.
B. Qualified Immunity.
“[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he
burden is first on the defendant to establish that the allegedly unconstitutional
conduct occurred while he was acting within the scope of his discretionary
authority.” Harbert, 157 F.3d at 1281. The burden then shifts to the plaintiff to
show that the defendant’s conduct “violated a clearly established statutory or
constitutional right.” Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003).
1. Discretionary authority.
“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority. ... If, and only if, the defendant does that will the burden
shift to the plaintiff to establish that the defendant violated clearly established
law.” Harbert, 157 F.3d at 1281 (emphasis added). The reason is that an official
nominal damages.” (Doc. 31 at 5). The defendants’ reply brief again expresses the issue
in identical language. (Doc. 43 at 7).
13

acting outside the scope of his discretionary authority “ceases to act as a
government official and instead acts on his own behalf,” so that “the policies
underlying the doctrine of qualified immunity no longer support its application.”
Id.
For purposes of federal qualified immunity analysis, a defendant acts
within his discretionary authority when “his actions were undertaken pursuant to
the performance of his duties and within the scope of his authority.” Rich v.
Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (internal quotes omitted). For this
inquiry, “[w]e ask whether the government employee was (a) performing a
legitimate job-related function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).
The first prong of this test requires that the defendant “have been
performing a function that, but for the alleged unconstitutional infirmity, would
have fallen within his legitimate job description.” Holloman, 370 F.3d at 1266
(emphasis omitted). “The inquiry is not whether it was within the defendant’s
authority to commit the allegedly illegal act,” but “whether the act complained of,
if done for a proper purpose, would be within, or reasonably related to, the outer
perimeter of an official’s discretionary duties.” Harbert, 157 F.3d at 1282
(internal quotes omitted).8
As for the second prong, “[e]ach government employee is given only a
certain ‘arsenal’ of powers with which to accomplish her goals.” Holloman, 370
F.3d at 1267. “Pursuing a job-related goal through means that fall outside the
range of discretion that comes with an employee’s job is not protected by qualified
immunity.” Id.
8

For example, the issue is not whether a marshal has the authority to deliver a
prisoner into unconstitutional conditions but whether he has the authority to transport and
deliver prisoners. Harbert, 157 F.3d at 1282 (describing Jordan v. Doe, 38 F.3d 1559,
1566 (11th Cir. 1994)).

14

The quantum and quality of evidence necessary to meet the defendant’s
burden “vary in proportion to the degree of discretion inherent in the defendant’s
office,” Harbert, 157 F.3d at 1282 (internal quotes omitted), but ordinarily “there
must be a showing by competent summary judgment materials of objective
circumstances that would compel th[e] conclusion” that the defendant acted within
his discretionary authority. Id. (internal quotes omitted). Certainly “[a] bald
assertion that the acts were taken pursuant to the performance of duties and within
the scope of duties will not suffice” to meet the defendant’s burden of proof. Id.
(internal quotes omitted). However, when it is “undisputed … that the
[defendants] were acting within their discretionary authority,” the Court can deem
that element of qualified immunity established. E.g., Lewis v. City of West Palm
Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). The plaintiff does not dispute the
defendants’ contention that they acted within their discretionary authority, and the
allegations of the amended complaint affirmatively establish this element.
The amended complaint alleges that Waldrop participated in the process to
create the First and Second Policies; gave final approval for their adoption;
directed that changes be made to the First Policy; failed to direct that changes be
made to the Second Policy; delegated authority to enforce the First Policy to Smith
and Mitchell; and permitted other student organizations to hang sheet signs on
campus. (Doc. 29, ¶¶ 27-30, 91, 96). The amended complaint also alleges that
Waldrop is responsible for enacting and enforcing all University policies
concerning student free speech, including the First and Second Policies; that he
must approve in advance all changes to those policies; and that he has final
authority to review, approve or reject student requests to use campus facilities and
grounds, including the use of sheet signs. (Id., ¶¶ 23-26, 31, 90, 102). The

15

plaintiff thus admits that all of Waldrop’s challenged acts and omissions fell
within his discretionary authority.9
The amended complaint alleges that Smith participated in the process to
create the First and Second Policies; gave approval for their adoption; directed that
changes be made to the First Policy; failed to direct that changes be made to the
Second Policy; and permitted other student organizations to hang sheet signs on
campus. (Doc. 29, ¶¶ 38-41, 96). The amended complaint also alleges that Smith
is responsible for enacting and enforcing University policies, including the First
and Second Policies; that he must approve in advance all changes to those
policies; that he has authority to coordinate and approve student solicitation and
speech requests, including the use of sheet signs; and that he has authority under
the Second Policy to define the boundaries of the Perimeter. (Id., ¶¶ 34-37, 42-43,
102, 168). The plaintiff thus admits that all of Smith’s challenged acts and
omissions fell within his discretionary authority.
The amended complaint alleges that Mitchell participated in the process to
create the First and Second Policies; gave approval for their adoption; failed to
direct that changes be made to the Second Policy; enforced the First Policy against
The plaintiff regarding its distribution of pro-life information and hosting of a
cemetery of innocents by restricting the plaintiff to the Speech Zone; and
permitted other student organizations to hang sheet signs on campus. (Doc. 29, ¶¶
53, 55-57, 96, 114, 130-32, 145, 231). The amended complaint also alleges that
Mitchell is responsible for enacting and enforcing University policies, including
the First and Second Policies; that he is responsible for reviewing and giving final
approval or disapproval to student requests to engage in expressive speech,
including the use of sheet signs; that he was responsible for regulating the Speech
Zone under the First Policy; and that he is responsible for regulating the Perimeter
9

Omissions as well as acts are subject to qualified immunity if they “occurred
while [the defendant] was engaged in a discretionary duty.” Goebert v. Lee County, 510
F.3d 1312, 1329 (11th Cir. 2007).
16

under the Second Policy. (Id., ¶¶ 47-51, 54). The plaintiff thus admits that all of
Mitchell’s challenged acts and omissions fell within his discretionary authority.
The amended complaint alleges that, in October 2013 and February 2014,
Steadman denied the plaintiff permission to engage in speech on the grounds
outside Shelby Hall. (Doc. 29, ¶¶ 61, 119, 123-26, 129, 132). The amended
complaint also alleges that Steadman was responsible for enforcing the First
Policy on the University grounds around Shelby Hall, including deciding whether
to approve or deny student speech requests. (Id., ¶ 60). The plaintiff thus admits
that all of Steadman’s challenged acts and omissions fell within his discretionary
authority.
2. Clearly established right.
The lower courts have discretion whether to address first the existence of a
constitutional violation or the clearly established nature of the right allegedly
violated. Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012). To avoid “the often more difficult
question whether the purported right exists at all,” id., the Court addresses first the
latter issue.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202
(2001). “In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle, 132 S. Ct. at 2093 (internal
quotes omitted). “The salient question … is whether the state of the law at the
time of an incident provided fair warning to the defendants that their alleged
conduct was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). To
attain that level, “the right allegedly violated must be established, not as a broad
general proposition, … but in a particularized sense so that the contours of the

17

right are clear to a reasonable official.” Reichle, 132 S. Ct. at 2094. The law is
clearly established if any of three situations exists.
“First, the words of the pertinent federal statute or constitutional provision
in some cases will be specific enough to establish clearly the law applicable to
particular conduct and circumstances to overcome qualified immunity, even in the
total absence of case law.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.
2002) (emphasis omitted). The requisite fair and clear notice can be given without
case law only “[i]n some rare cases.” Williams v. Consolidated City of
Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003).
“Second, ... some broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future to
different sets of detailed facts.” Vinyard, 311 F.3d at 1351. “For example, if some
authoritative judicial decision decides a case by determining that ‘X Conduct’ is
unconstitutional without tying that determination to a particularized set of facts,
the decision on ‘X Conduct’ can be read as having clearly established a
constitutional principle: put differently, the precise facts surrounding ‘X Conduct’
are immaterial to the violation.” Id. “[I]f a broad principle in case law is to
establish clearly the law applicable to a specific set of facts facing a government
official, it must do so with obvious clarity to the point that every objectively
reasonable government official facing the circumstances would know that the
official’s conduct did violate federal law when the official acted.” Id. (internal
quotes omitted). “[S]uch decisions are rare,” and “broad principles of law are
generally insufficient to clearly establish constitutional rights.” Corey Airport
Services, Inc. v. Decosta, 587 F.3d 1280, 1287 (11th Cir. 2009).
“Third, [when] the Supreme Court or we, or the pertinent state supreme
court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances,’” then if
“the circumstances facing a government official are not fairly distinguishable, that
is, are materially similar [to those involved in the opinion], the precedent can
clearly establish the applicable law.” Vinyard, 311 F.3d at 1351-52.
18

When case law is utilized to show that the law was clearly established, the
plaintiff must “point to law as interpreted by the Supreme Court [or] the Eleventh
Circuit,” and such case law must pre-date the challenged conduct. Mercado v.
City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005); accord Coffin v. Brandau,
642 F.3d 999, 1013 (11th Cir. 2011) (en banc).10 Moreover, “[t[he law cannot be
established by dicta[, which] is particularly unhelpful in qualified immunity cases
where we seek to identify clearly established law.” Santamorena v. Georgia
Military College, 147 F.3d 1337, 1342 n.13 (11th Cir. 1998) (internal quotes
omitted).
As is generally the case under Rule 56, “[w]e resolve all issues of material
fact in favor of the plaintiff, and then determine the legal question of whether the
defendant is entitled to qualified immunity under that version of the facts.”
Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003).
As noted, the plaintiff brings free speech, due process and equal protection
challenges. The Court considers them in turn.
a. Free speech.
“[T]he Supreme Court has broadly discerned three distinct (although not
airtight) categories of government property for First Amendment purposes:
traditional public fora, designated public fora, and limited public fora.” Bloedorn
v. Grube, 631 F.3d 1218, 1230 (11th Cir. 2011). Identifying which is at issue is
important, because “the degree of scrutiny we place on a government’s restraint of
speech is largely governed by the kind of forum the government is attempting to
regulate.” Id. The plaintiff, relying on Bloedorn and other cases, argues that this
case involves only traditional and/or designated public fora.

10

The plaintiff relies on a large number of trial court decisions and appellate
opinions from other circuits. Because they are legally irrelevant to the task at hand, the
Court ignores them.
19

“Traditional public fora are public areas such as streets and parks that, since
time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.” Bloedorn, 631 F.3d
at 1231 (internal quotes omitted). The plaintiff asserts that the Perimeter is a
traditional public forum “because it is a park-like area with lawns, picnic benches,
and trees next to” public sidewalks. (Doc. 41 at 24-25). The only Supreme Court
or Eleventh Circuit case the plaintiff cites for this proposition is Bloedorn, which
does not support it. On the contrary, that case instructs that “[t]he physical
characteristics of the property alone cannot dictate forum analysis.” 631 F.3d at
1233. Thus, “it is of lesser significance that the [campus] sidewalks and
Pedestrian Mall physically resemble municipal sidewalks and public parks,”
because a college campus “differs in many important ways from public streets or
parks,” especially in that “the purpose of a university is strikingly different from
that of a public park.” Id. at 1233-34. In short, “a state-funded university is not a
traditional public forum ….” Id. at 1232. The plaintiff has thus failed to meet its
burden of showing it is clearly established that the Perimeter is a traditional public
forum.11
“A designated public forum is government property that has not
traditionally been regarded as a public forum but that has been intentionally
opened up for that purpose. … To create a designated public forum, the
government must intentionally open up a location … for use by the public at
large.” Bloedorn, 631 F.3d at 1231 (internal quotes omitted). The plaintiff asserts
that the “the remaining outdoor areas of the campus” (that is, everything other than
the Perimeter) constitute a designated public forum. (Doc. 41 at 24-25). Under
the First Policy, the University “restricted student speech to one small speech zone
11

The plaintiff also suggests, without argument or explanation, that “the interior
of the University’s campus is a traditional … public forum.” (Doc. 41 at 15). The
discussion in text reflects the plaintiff’ failure to show that any such proposition is clearly
established under Supreme Court and/or Eleventh Circuit jurisprudence.

20

that occupied less than 0.01% of the University’s main campus,” although
administrators had discretion to allow speech elsewhere. (Doc. 29, ¶ 2). Under
the Second Policy, student speech is permitted in additional areas but prohibited in
others. (Doc. 29-10 at 3-4). The plaintiff offers no Supreme Court or Eleventh
Circuit authority (or any other) for the proposition that an entire property can be a
designated public forum when the government body identifies only a part of the
property as appropriate for expressive speech.
The plaintiff cites Sentinel Communications Co. v. Watts, 936 F.2d 1189
(11th Cir. 1991), as “refer[ring] to the outdoor areas of campus as designated
public fora for the plaintiff.” (Doc. 41 at 25). In fact, Sentinel merely noted that
certain state property “may be” designated as a public forum, 936 F.2d at 1202
(internal quotes omitted), as could any part of any government property. The
question, though, is not what can be a designated public forum but what, in a
particular case, has become a designated public forum pursuant to government
designation. Sentinel does not address the latter issue and so does not advance the
plaintiff’s position.
The plaintiff also points to Bloedorn. Unlike a designated public forum,
which the government opens to “the public at large,” 631 F.3d at 1231, “a limited
public forum may be established when the government limits its property to use by
certain groups or dedicates it solely to the discussion of certain subjects.” Id.
(internal quotes omitted). The Bloedorn Court held that, when a university
“expressed no intention to open [certain] areas to the general public for expressive
conduct [but] limited these areas only for use by a discrete group of people – the
[university] community; its the plaintiff, faculty, and employees; and their
sponsored guests,” such restriction “is precisely the definition of a limited public
forum.” Id. at 1232. The plaintiff asserts that this passage from Bloedorn
establishes that, when a campus location is opened to the university community
but not the general public, the location is a limited public forum vis-à-vis the
general public but a designated public forum vis-à-vis the university community.
21

(Doc. 41 at 26 n.10). Bloedorn, however, does not state that the same location can
simultaneously be a limited public forum as to some and a designated public
forum as to others, and its statement that a designated public forum must be
opened up to “the public at large” would make such a construction difficult if not
untenable. Certainly Bloedorn does not clearly establish for purposes of qualified
immunity analysis the proposition for which the plaintiff contends.
“Any restrictions made on expressive activity in a limited public forum
only must be reasonable and viewpoint neutral,” while “a time, place, and manner
restriction can be placed on a designated public forum only if it is content neutral,
narrowly tailored to achieve a significant government interest, and leaves open
ample alternative channels of communication.” Bloedorn, 631 F.3d at 1231. The
plaintiff points out that the Second Policy provides that “expressive activities may
be subject to reasonable regulation with regard to the time, place, and manner.”
(Doc. 29-10 at 2). The plaintiff concludes that the “campus is a traditional or
designated public forum” because the Second Policy employs the stock phrase,
“time, place and manner,” which terminology the plaintiff apparently believes
cannot be used in the context of a limited public forum. (Doc. 41 at 26 n.9). The
plaintiff is wrong, as Bloedorn itself did so. 631 F.3d at 1235 (because certain
locations “are limited public fora, any time, place, and manner restrictions made
on expressive activity need only be viewpoint neutral and reasonable”).
Finally, (Doc. 41 at 26), the plaintiff notes that “the campus of a public
university, at least for its the plaintiff, possesses many of the characteristics of a
public forum.” Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981). This is far too
general a statement to clearly establish that the entire outdoor portion of the
University’s campus is a public forum, since sharing certain qualities of a public
forum is not the same as being a public forum. Indeed, the very same footnote
reminds readers that “[w]e have not held … that a university must grant free
access to all of its grounds or buildings.” Id.

22

Although the defendants have not shown it is clearly established that the
entire outdoor area of campus was a designated public forum, they may still show
it is clearly established that certain portions of campus are or were a designated
public forum. The Court therefore examines each policy in light of the principles
set forth above.
The First Policy, which contained no restriction on the subjects that could
be discussed, provided that demonstrations, speeches and debates, including those
by “unsponsored” speakers, were to be held in the Speech Zone unless permission
to use another location was granted. (Doc. 29-5 at 6). The Bloedorn Court
equated “non-sponsored speakers” with those “drawn from the general public” but
not “sponsored by community members.” 631 F.3d at 1225-26. It is thus clearly
established that the Speech Zone was a designated public forum rather than a
limited public forum under the First Policy. See id. at 1234 (where “the University
ha[d] intentionally opened this limited space … to its student body and to the
general public without any restrictions on content,” it had created a designated
public forum). The defendants make no argument to the contrary.
The Second Policy provides that the plaintiff and employees may engage in
outdoor expressive activity in “all areas of the University campus,” with several
excepted areas. (Doc. 29-10 at 3-4). However, outdoor expressive activity by
non-University sponsored persons or groups is restricted to the Speech Zone. (Id.
at 3). Because expressive speech outside the Speech Zone is open only to a
“discrete group of people,” Bloedorn, 631 F.3d at 1231, it is not clearly
established that any area outside the Speech Zone is a designated public forum
under the Second Policy.12
In sum, for purposes of the pending motion, the plaintiff has met its burden
of showing it is clearly established that the Speech Zone was a designated public
12

The areas opened by the Second Policy to expressive activity by the University
community but not by outsiders would be a limited public forum under Bloedorn. 631
F.3d at 1231.

23

forum under the First Policy and that it remains a designated public forum under
the Second Policy. However, the plaintiff has not met its burden of showing it is
clearly established that any other area of campus was a traditional public forum or
a designated public forum under the First or Second Policy.
Unfortunately for the plaintiff, its entire argument depends on the premise
of a traditional or designated public forum, and the plaintiff invokes only the test
for permissible regulation applicable to such fora. (Doc. 41 at 27-28). This
renders the plaintiff’s argument incapable of carrying its burden of showing that
the First and Second Policies violate its clearly established First Amendment
rights.13
The plaintiff might nevertheless defeat qualified immunity to the extent it
challenges the First or Second Policy’s regulation of the Speech Zone, since that
area is a designated public forum as to which the plaintiff’ proposed test applies.
The plaintiff, however, mounts no such challenge. As to the First Policy, the
plaintiff objects to: the discretion vested in administrators in deciding whether to
allow expressive activity outside the Speech Zone; the advance notice required to
obtain permission to speak outside the Speech Zone; the loss of anonymity
associated with requests for permission to speak outside the Speech Zone; the
requirement of a permit to speak outside the Speech Zone even when only an
individual or small group is involved; the absence of additional designated public
fora; and the University’s denials of the plaintiff’s requests to hold a cemetery of

13

As the plaintiff acknowledges, (Doc. 41 at 24-25, 28), “a time, place, and
manner restriction can be placed on a designated [or traditional] public forum only if it is
content neutral, narrowly tailored to achieve a significant government interest, and leaves
open ample alternative channels of communication.” Bloedorn, 631 F.3d at 1231. As the
plaintiff also acknowledges, (Doc. 41 at 26 n.9), “[a]ny restrictions made on expressive
activity in a limited public forum only must be reasonable and viewpoint neutral.”
Bloedorn, 631 F.3d at 1231.

24

innocents outside the Speech Zone. (Doc. 41 at 27-28, 30-31, 33, 35-36).14 As to
the Second Policy, the plaintiff objects to the banning of expressive activity in the
Perimeter and the discretion vested in administrators to determine its interior
boundary. (Id. at 28, 31-32, 36-37, 38).
The only issue raised by the plaintiff that might arguably implicate
regulation of the Speech Zone is the objection that the Speech Zone is too small.
(Doc. 41 at 36). Because the plaintiff cites only trial court opinions in support of
this objection, (id.), it plainly has not carried its burden of demonstrating it is
clearly established that the size of the Speech Zone violates the First Amendment.
As the plaintiff notes, (Doc. 41 at 24-25, 26 n.9), one rule applies both to
traditional/designated public fora and to limited public fora. “[E]ven in a nonpublic forum, the law is clearly established that the state cannot engage in
viewpoint discrimination – that is, the government cannot discriminate in access to
the forum on the basis of the government’s opposition to the speaker’s viewpoint.”
Cook v. Gwinnett County School District, 414 F.3d 1313, 1321 (11th Cir. 2005).
The plaintiff argues that Mitchell and Steadman engaged in content discrimination
and viewpoint discrimination when, while the First Policy was in force, they
denied the plaintiff permission to place a cemetery of innocents in the Perimeter.

14

At times in its briefing, the plaintiff seems to suggest that loss of spontaneity
and anonymity apply to speech in the Speech Zone, (Doc. 41 at 35, 38), but the express
terms of the First Policy render any such unstated suggestion untenable:
Demonstrations, speeches, and debates will be held around the Student
Center unless the Vice President for Student Affairs is able to coordinate
another appropriate campus location no less than three working days prior
to the event. Authorization for any speech or demonstration beyond the
Student Center will require identification of the individual or organization
involved ….
(Doc. 29-5 at 6 (emphasis added)).

25

(Doc. 41 at 33).15 The plaintiff has evidence that permission was denied because
the plaintiff “advocates for a position that involves political and social
controversy.” (Doc. 29-6). The Court agrees with the plaintiff that this e-mail
constitutes evidence that Mitchell and Steadman denied permission due to the
plaintiff’s viewpoint (“position”) on abortion (pro-life). Because it was clearly
established in February 2014 that such viewpoint discrimination violates the First
Amendment, Mitchell and Steadman cannot receive qualified immunity with
regard to these denials.16
b. Due process - overbreadth.
The plaintiff argues that the First and Second Policies violate its due
process rights under the Fourteenth Amendment because the policies are
overbroad. (Doc. 41 at 39). In the first place, the amended complaint limits the
plaintiff’s due process claim to one of vagueness, to the exclusion of overbreadth.
(Doc. 29 at 32-34). In the second place, the only two cases cited by the plaintiff
involve free speech challenges, not due process challenges. In the third place,
those cases address overbreadth only in the context of a traditional public forum,
which renders them irrelevant to the present context. For all these reasons, the
plaintiff has failed to meet its burden of demonstrating it is clearly established that
the First and Second Policies violate the plaintiff’ due process rights.
15

In contrast to viewpoint neutrality, content neutrality is not always required in a
limited public forum. “[I]n determining whether the State is acting to preserve the limits
of the forum it has created so that the exclusion of a class of speech is legitimate, we have
observed a distinction between, on the one hand, content discrimination, which may be
permissible if it preserves the purposes of that limited forum, and, on the other hand,
viewpoint discrimination, which is presumed impermissible when directed against speech
otherwise within the forum’s limitations.” Rosenberger v. Rector and Visitors of the
University of Virginia, 515 U.S. 819, 829-30 (1995).
16

Mitchell and Steadman argue they could not have had fair notice of any
constitutional infirmity because the First Policy “has never been declared unconstitutional
or even challenged as such until this lawsuit was filed.” (Doc. 31 at 8). As discussed in
text, this is not the test of whether their conduct violates a clearly established
constitutional right.
26

c. Due process – vagueness.
The plaintiff also argues that the First and Second Policies violate its due
process rights under the Fourteenth Amendment because the policies are vague.
(Doc. 41 at 40). The only three cases cited by the plaintiff address vagueness in
the context of a criminal statute, not a policy creating designated and/or limited
public fora, which renders them irrelevant to the present context. The plaintiff has
thus failed to carry its burden of showing it is clearly established that the First and
Second Policies violate the plaintiff’ due process rights.
d. Equal protection.
The plaintiff argues that the First and Second Policies, as written and as
applied, violate its equal protection rights under the Fourteenth Amendment.
(Doc. 41 at 41). The single case cited by the plaintiff – which did not involve
expressive activity – is offered only for the bland proposition that similarly
situated persons should be treated similarly. (Id.). What the plaintiff fails to
provide is any authority from which it could be clearly established that those
treated more favorably than the plaintiff – an engineering club that hosted a
jousting event in the Perimeter, the students who talk/eat/study/play/hang out in
the Perimeter, and student groups that hang sheet signs advertising campus events
and elections in a traffic circle – are similarly situated to an organization that
desires to use these areas, not to play or to publicize campus activities, but to
“promote and defend the culture of life.” (Doc. 29, ¶¶ 70, 96, 103-06, 127-28,
137-38, 165-67). The plaintiff has thus failed to demonstrate it is clearly
established that the First and Second Policies violate the plaintiff’ equal protection
rights.

27

III. Second Policy.
The plaintiff challenges the Second Policy “on its face and as applied.”
(Doc. 29, ¶ 8). The defendants argue that the as-applied claim is inadequately
pleaded because the amended complaint does not allege facts “to show that any
Defendant has applied the Second Policy to [The plaintiff] at all.” (Doc. 31 at 12).
The defendants misapprehend the nature of an as-applied challenge. While
“[a] facial challenge asserts that a law always operates unconstitutionally,” an asapplied challenge “asserts that a statute cannot be constitutionally applied in
particular circumstances.” Harris v. Mexican Specialty Foods, Inc., 564 F.3d
1301, 1308 (11th Cir. 2009) (emphasis in original) (internal quotes omitted).
While such claims often address an historical application of the rule to the
plaintiff, they can be brought without such an application, as occurred in Harrell.
Because the defendants have not attempted to demonstrate that the plaintiff is
required to plead an affirmative application to it of the Second Policy, they cannot
obtain dismissal on the ground that the plaintiff failed to do so.17
In similar fashion, the defendants complain that the amended complaint
fails to allege that any other student organization has engaged in protected speech
(as opposed to recreation) in the Perimeter. (Doc. 31 at 12-13). Such an omission
might be relevant to the plaintiff’ equal protection claim, but the defendants have
not explained how it could impact the plaintiff’ due process and free speech
claims. Nor have they attempted to demonstrate that, as a matter of law, an equal
protection claim cannot be based on the preferential treatment of such
organizations. The defendants have therefore failed to show that the amended
complaint is legally deficient.
17

Given that the Second Policy explicitly closes the Perimeter to expressive
activities, (Doc. 29-10 at 3-4), and given that even under the First Policy the University
twice refused The plaintiff permission to use the Perimeter, the defendants would have a
difficult climb were they to argue that the controversy is not ripe absent another request
to use the Perimeter. See Harrell, 608 F.3d at 1262 (an as-applied challenge is ripe
absent an actual application when it addresses a rule “whose application is categorical
and thus clear”).
28

CONCLUSION
For the reasons set forth above, the defendants’ motion to dismiss is
granted as to all claims for declaratory or injunctive relief with respect to the First
Policy and is granted as to all claims for nominal damages not based on alleged
viewpoint discrimination in violation of the First Amendment by Mitchell and
Steadman in denying permission to use the Perimeter for a cemetery of innocents.
In all other respects, the motion to dismiss is denied.
DONE and ORDERED this 4th day of February, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

29