Students for Life USA v. Waldrop et al

Filing 55

ORDER denying 44 Motion for Preliminary Injunction. Signed by Chief Judge William H. Steele on 2/27/2015. (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 plaintiff’s motion for preliminary
injunction. (Doc. 44). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 45, 47, 48), and the motion is ripe for
resolution.
The background of this action has been set forth in the Court’s order
granting in part the defendant’s motion to dismiss. (Doc. 49). The plaintiff
student organization at the University of South Alabama (“the University”)
challenges, on First Amendment, due process and equal protection grounds, two
policies of the University addressing expressive activity. By the instant motion,
the plaintiff seeks to enjoin the defendants from enforcing the First Policy and
Section I(B)(1)(b) of the Second Policy. (Doc. 44 at 1). The Court has dismissed
as moot “all claims for declaratory or injunctive relief with respect to the First
Policy.” (Doc. 49). Accordingly, the motion for preliminary injunction is due to
be denied as to the First Policy.1
1

In support of the instant motion, the plaintiff has submitted the declaration of its
president to the effect that, when she attended a student organization leadership day in
September 2014, she “did not hear anyone who works at the university mention the
existence of the Second Policy.” (Doc. 44-1 at 3). The plaintiff asserts that this proves
the University “is still operating under the First Policy,” (Doc. 45 at 9 n.1), such that its
challenge to the First Policy is not moot. (Id. at 12).
(cont’d)

The Second Policy provides in pertinent part as follows:
For USA students or employees, all areas of the University
campus are open for expressive activities, except for the following:
• Areas between the street side of University buildings and
facilities on the periphery of campus from the portal of
North Drive to the corner of campus at Old Shell Road and
University Boulevard and to the portal of Stadium Drive and
the public sidewalks ….
(Doc. 29-10 at 3-4). This closing of the campus perimeter (“the Perimeter”) to
expressive activity is the plaintiff’s sole challenge to the Second Policy. (Doc. 29
at 24-25; Doc. 45 at 10, 13, 19, 23, 28-29, 30; Doc. 48 at 9-11).
“A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the burden of persuasion as to the
four requisites.” American Civil Liberties Union of Florida, Inc. v. Miami-Dade
County School Board, 557 F.3d 1177, 1198 (11th Cir. 2009) (internal quotes
omitted). As the plaintiff acknowledges, (Doc. 45 at 13), “[a] district court may
grant [preliminary] injunctive relief only if the moving party shows that: (1) it has
a substantial likelihood of success on the merits; (2) irreparable injury will be
suffered unless the injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) if issued, the injunction would not be adverse to the public interest.”

Because the plaintiff did not present this evidence in opposition to the defendant’s
motion to dismiss on grounds of mootness, it comes too late to be considered. At any
rate, the plaintiff cites no authority for the facially illogical notion that the failure to
mention a policy at a meeting proves the policy does not exist. Had the administration
discussed the First Policy at the meeting (at least, had it done so without then explaining
that the First Policy had been superseded by the Second), the plaintiff might have
something, but there is no such evidence. Instead, the plaintiff argues that the mere
failure to discuss University policy concerning expressive activity means the policy in
force is the First Policy rather than the Second. That simply does not follow.
In its reply brief, the plaintiff reasserts certain arguments concerning mootness
that the Court fully considered and soundly rejected on motion to dismiss. (Doc. 48 at
12-14). Those arguments remain invalid for the reasons set forth in the Court’s previous
order.
2

Id. (internal quotes omitted). “Failure to show any of the four factors is fatal, and
the most common failure is not showing a substantial likelihood of success on the
merits.” Id.; accord Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) (“If
[the plaintiff] is unable to show a substantial likelihood of success on the merits,
we need not consider the other requirements.”).
With respect to the plaintiff’s First Amendment claim, “the 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, 631 F.3d at 1230.
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.
“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). “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.” Id. (internal quotes omitted). “Just as with a traditional public
forum, 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.” Id. (internal quotes omitted). Access to any other kind of forum
(limited public forum or nonpublic forum) is subject to greater restriction. Id.
As noted, the Second Policy explicitly closes the Perimeter to expressive
activity, and the plaintiff wisely makes no argument that, in the face of this clear
language, the Perimeter could be a designated public forum. Nor does the plaintiff
assert that, even if the Perimeter is a limited public forum or a nonpublic forum,
3

the Second Policy’s closure of the Perimeter to expressive activity violates the
First Amendment under the more relaxed standards applicable to such fora.
Instead, the plaintiff argues exclusively that the Perimeter is a traditional public
forum, the closure of which fails the strict scrutiny analysis applicable to such
fora. (Doc. 45 at 15-16; Doc. 48 at 6, 9-11). Therefore, unless the plaintiff has
shown a substantial likelihood of success in demonstrating that the Perimeter is a
traditional public forum, it has not shown a substantial likelihood of success on the
merits of its First Amendment claim.
The Perimeter, as described by the plaintiff, is a “park-like area with lawns,
picnic benches, and trees next to the public sidewalks on Old Shell Road and
University Boulevard.” (Doc. 45 at 16). The plaintiff argues that the Perimeter is
a traditional public forum because of these “physical characteristics” and because
“students can socialize there.” (Doc. 48 at 11).
The plaintiff cites a number of authorities, but they generally stand only for
the proposition that, under the facts presented, a portion of a campus had been
affirmatively opened up by the institution as a designated public forum. Because
the plaintiff cannot demonstrate that the University has opened up the Perimeter as
a designated public forum, and because the plaintiff makes no argument that the
University has done so, these authorities are inapposite.
As for traditional public fora, the plaintiff asserts that “[t]he Supreme Court
has determined that the outdoor areas of a public university campus, at least for
students, are a traditional public forum.” (Doc. 48 at 9). The cases on which the
plaintiff relies for this proposition, however, do not support it. The Court in
Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788
(1985), stated that “a university campus, at least as to its students, possesses many
of the characteristics of a traditional public forum,” id. at 803, (emphasis added),
but it did not say that any part of a college campus is a traditional public forum.
Nor could it have done so, since Cornelius did not involve campus speech but a
“charity drive aimed at federal employees.” Id. at 791.
4

The Cornelius Court relied on Widmar v. Vincent, 454 U.S. 263 (1981),
which the plaintiff also cites. Widmar “present[ed] the question whether a state
university, which makes its facilities generally available for the activities of
registered student groups, may close its facilities to a registered student group
desiring to use the facilities for religious worship and religious discussion.” Id. at
264-65. The question was not whether a public forum existed – it did, because
“the University has created [i.e., designated] a forum generally open for use by
student groups,” id. at 267 – but whether, having created the forum, the university
could discriminate against religious groups in the use of the forum. Nevertheless,
the Court noted that it “has recognized that the campus of a public university, at
least for its students, possesses many of the characteristics of a public forum.” Id.
at 267 n.5. As with the similar quote from Cornelius, this statement falls far short
of a determination that the outdoor areas of campus are a traditional public forum.2
Indeed, Widmar is significant chiefly because it confirms that “[a]
university differs in significant respects from public forums such as streets or
parks or even municipal theaters.” Id. (emphasis added). Because its “mission is
education,” a university has “authority to impose reasonable regulations
compatible with that mission upon the use of its campus and facilities.” Id. “We
have not held, for example, that a campus must make all of its facilities equally
available to students and nonstudents alike, or that a university must grant free
access to all of its grounds or buildings.” Id. (emphasis added). In context,
Widmar more nearly states that the outdoor portions of a college campus are not a
traditional public forum.

2

As support for its statement that a public university campus, as to its students,
possesses many characteristics of a public forum, the Widmar Court cited generally to
Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), and Cox v. Louisiana, 379
U.S. 536 (1965). Mosley involved picketing on a public sidewalk (a traditional public
forum) adjacent to a public high school, while Cox involved a demonstration by college
students on a public sidewalk across from the county courthouse. It is not clear what in
these opinions supports the proposition for which they were cited.
5

The plaintiff next cites Hays County Guardian v. Supple, 969 F.2d 111 (5th
Cir. 1982), for the proposition that “[t]he campus’s function as the site of a
community of full-time residents makes it ‘a place where people may enjoy the
open air or the company of friends and neighbors in a relaxed environment,’
[citation omitted], and suggests an intended role more akin to a public street or
park than a non-public forum.” Id. at 117 (quoting Heffron v. International
Society for Krishna Consciousness, 452 U.S. 640, 651 (1981)). Hays County,
however, did not rule that all or any part of the campus was a traditional public
forum; instead, it held – based on the university’s written policies – that portions
of campus were designated public fora. 969 F.2d at 116-17.
Moreover, the principle for which the plaintiff cites Hays County is not
well supported therein. While the Fifth Circuit cited the same portion of Widmar
as does the plaintiff herein, it ignored the remaining portions, quoted above, that
undermine any effort to use Widmar as authority for considering any part of a
college campus a traditional public forum. And although Heffron described a
public street as a place where people can enjoy fresh air and conversation in a
relaxed environment, it does not and cannot follow that any public outdoor
location where people can talk and relax is therefore a traditional public forum.
Thus, for example, the plaza outside the federal courthouse in Atlanta, though
clearly appropriate for fresh air and conversation, is not a traditional public forum.
United States v. Gilbert, 920 F.2d 978, 984 (11th Cir. 1991).
Finally, the plaintiff relies on Roberts v. Haragan, 346 F. Supp. 2d 853
(N.D. Tex. 2004). The Roberts Court formed the “preliminary assumption” that,
“to the extent the campus has park areas, sidewalks, streets, or other similar
common areas, these areas are public forums, at least for the University’s
students.” Id. at 861. The Court believed these areas “might be referred to as
traditional public forums,” although it hedged that they might more properly be
termed designated public fora – at least if one ignored the established definition of
the term and found the designation to inhere in the act of designing a campus that
6

included features resembling streets and parks. Id. at 861 n.8. Alone among the
authorities cited by the plaintiff, Roberts arguably stands for the proposition that
park-like areas of a campus are traditional public fora.
The Court, however, does not find Roberts persuasive. For its unique
ruling, Roberts relied on the same snippets from Widmar and Hays County that the
Court has addressed above and found wanting. 346 F. Supp. 2d at 861. In
addition, the Roberts Court relied on the unremarkable proposition that a college
campus – in the present case, one covering almost two square miles – “‘contains a
variety of fora.’” Id. (quoting Alabama Student Party v. Student Government
Association, 867 F.2d 1344, 1354 (11th Cir. 1989) (Tjoflat, J., dissenting)). And
surely it does,3 but the mere inability to assign a single label to an entire campus
fails to establish that any part of the campus fits within the narrow definition of a
traditional public forum.
As its final ground of support, Roberts noted the Supreme Court’s
statement that, “[i]n cases where the principal function of the property would be
disrupted by expressive activity, the Court is particularly reluctant to hold that the
government intended to designate a public forum.” Cornelius, 473 U.S. at 804.
The Roberts Court extrapolated from this statement – which on its face addresses
only designated public fora – “an equally useful definition of what characterizes a
traditional public forum, viz., government property whose principal function
would not be disrupted by expressive activity.” 346 F. Supp. 2d at 859 n.6. The
definition of a traditional public forum, however, has been expressly provided by
the Supreme Court, and the Roberts Court offered no justification for enlarging
that definition to cover property which falls outside the Supreme Court’s
definition so long as the principal function of the property would not be disrupted
by expressive activity.
3

Because “[a] modern university contains a variety of fora,” including various
buildings, sports venues and open areas, “labeling the campus as one single type of forum
is an impossible, futile task.” Bowman v. White, 444 F.3d 967, 977 (8th Cir. 2006);
accord Bloedorn v. Grube, 631 F.3d at 1232.
7

“Traditional public fora are those places which ‘by long tradition or by
government fiat have been devoted to assembly and debate.’” Cornelius, 473 U.S.
at 802 (quoting Perry Education Association v. Perry Local Educators’
Association, 460 U.S. 37, 45 (1985)). Streets and parks are traditional public fora,
because they “‘have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.’” Perry, 460 U.S. at
45 (quoting Hague v. Committee for Industrial Organization, 307 U.S. 496, 515
(1939) (opinion of Roberts, J.)). Public sidewalks are also a traditional public
forum, because they “traditionally have been held open to the public for
expressive activities.” United States v. Grace, 461 U.S. 171, 177, 179 (1983).
There are several key notions embedded in the definition of a traditional
public forum. First is that “‘a traditional public forum is property that has as a
principal purpose … the free exchange of ideas.’” International Society for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (quoting Cornelius,
473 U.S. at 800).
Second is the necessity of a longstanding, traditional use of the property for
public expressive activity. “The Court has rejected the view that traditional public
forum status extends beyond its historic confines ….” Arkansas Educational
Television Commission v. Forbes, 523 U.S. 666, 678 (1998). “The doctrines
surrounding traditional public forums may not be extended to situations where
such a history is lacking.” United States v. American Library Association, Inc.,
539 U.S. 194, 206 (2003). For example, “[t]he notion that federal military
reservations, like municipal streets and parks, have traditionally served as a place
for free public assembly and communication of thoughts by private citizens is thus
historically and constitutionally false.” Greer v. Spock, 424 U.S. 828, 838 (1976).
Third, “[t]he mere physical characteristics of the property cannot dictate
forum analysis.” United States v. Kokinda, 497 U.S. 720, 727 (1990) (plurality
opinion). Instead, the “location and purpose of a publicly owned [property] is
8

critical to determining whether [it] constitutes a public forum. Id. at 728. Thus, a
post office sidewalk that was “not distinguishable” in appearance from a nearby
city sidewalk nevertheless was not a traditional public forum because it was not
designed for use by the general public but only by those engaged in postal
business. Id.
The plaintiff has not come to grips with these requirements. Instead, it
seems to believe that, if a grassy area on the edge of campus has trees and
benches, and students are permitted to socialize there, the area is perforce a
traditional public forum. But even if it be assumed that the Perimeter looks
somewhat like a park (though it has not been declared one), its “mere physical
characteristics” cannot render it a traditional public forum any more than could the
appearance of the sidewalk in Kokinda. Nor does use of the Perimeter for
“socializing” establish its purpose as one of assembly, public debate and the free
exchange of ideas. And even had the plaintiff offered evidence that a principal
purpose of the Perimeter is expressive activity, it has done nothing to show that
the republic boasts a long tradition of using the grassy border areas of public
college campuses for such purposes.
The Eighth Circuit in Bowman v. White, 444 F.3d 967 (8th Cir. 2006), noted
that the physical characteristics of certain open spaces on campus might on their
own suggest they were traditional public fora but, in light of the educational
mission of a university, “streets, sidewalks, and other open areas that might
otherwise be traditional public fora may be treated differently when they fall
within the boundaries of the University’s vast campus.” Id. at 978. The Court
concluded the open areas at issue were not traditional public fora but designated
public fora. The plaintiff does not address Bowman.
Even more damaging to the plaintiff is the Eleventh Circuit’s
pronouncement that “a state-funded university is not a traditional public forum
….” Bloedorn, 631 F.3d at 1232. The sidewalks and pedestrian mall at issue in
Bloedorn “physically resemble[d] municipal sidewalks and public parks,” yet the
9

Court ruled they were but limited public fora, because “the purpose of a university
is strikingly different from that of a public park,” and “[i]ts essential function is
not to provide a forum for general public expression and assembly.” Id. at 123234.
The plaintiff argues that Bloedorn is inapposite because it involved a
citizen seeking access, not a student. The plaintiff, relying on Widmar’s statement
that “the campus of a public university, at least for its students, possesses many of
the characteristics of a public forum,” 454 U.S. at 267 n.5, believes that the same
property can simultaneously be a traditional public forum as to some (such as
students) and something other than a traditional public forum as to others. (Doc.
48 at 9). But since, as already noted, Widmar did not state that a college campus is
a traditional public forum, it also did not say that a college campus is a traditional
public forum “at least for its students.” The question is always “whether
government property may be utilized for an expressive purpose by the general
public.” Bloedorn, 631 F.3d at 1230 (emphasis added). This is so not only for
traditional public fora but for designated public fora as well, which are fora
opened “for use by the public at large.” Id. at 1231 (citing Cornelius, 473 U.S. at
802); see also Miller v. City of Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010) (“The
government creates a designated public forum when it opens a piece of public
property to the public at large, treating [it] as if it were a traditional public
forum.”) (emphasis added); Campbell v. St. Tammany’s School Board, 206 F.3d
482, 486 (5th Cir. 2000) (“Although a school is not a traditional public forum, a
district may designate it as such by indiscriminately permitting use by the public
at large for assembly and speech.”), vacated on other grounds, 533 U.S. 913
(2001).
For the reasons set forth above, the Court concludes the plaintiff has not
demonstrated a substantial likelihood of showing that the Perimeter is a traditional
public forum. Therefore, the plaintiff has not shown a substantial likelihood of

10

prevailing on the merits of its First Amendment claim. Absent such a likelihood,
it cannot obtain a preliminary injunction under its First Amendment claim.
The plaintiff claims the Second Policy violates the Due Process Clause
because it “does not clearly define the boundaries of the [Perimeter] between
buildings or near athletic fields.” (Doc. 45 at 25).4 The plaintiff asserts the
Second Policy violates the Equal Protection Clause because it prohibits expressive
activity in the Perimeter but permits students to socialize there. (Id. at 26). Each
of these arguments receives a single page or less of briefing, and each relies solely
on glittering generalities that do not address the situation here presented. That is
far too cursory a treatment to demonstrate a substantial likelihood of prevailing on
the merits.5 Moreover, the plaintiff has not addressed the other three requirements
for injunctive relief at all.6 The plaintiff therefore cannot obtain an injunction on
the strength of these claims.
For the reasons set forth above, the plaintiff’s motion for preliminary
injunction is denied.
DONE and ORDERED this 27th day of February, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
4

The plaintiff also asserts the Second Policy is unconstitutionally overbroad,
(Doc. 45 at 24-25), but the amended complaint on its face limits the plaintiff’s due
process challenge to one of vagueness, not overbreadth. (Doc. 29 at 32-34).
5

The plaintiff expressly ties the success of its equal protection claim to the
success of its First Amendment claim. (Doc. 45 at 34). Since the latter claim will not
support injunctive relief, by the terms of the plaintiff’s argument neither will the former.
As for the vagueness claim, it does not appear the plaintiff has any present
intention of engaging in expressive activity between buildings or near athletic fields,
(Doc. 44-1 at 4), so it seems unlikely this claim is even ripe.
6

The plaintiff expressly limits its discussion of these requirements to its First
Amendment claim. (Doc. 45 at 34-37).
11