Bulletin Board Case Against Rock Valley College Dismissed; Amended Complaint Filed

July 26, 2013

Last September, FIRE’s Sean Clark reported on the case of Dominic Celletti, a Rock Valley College (RVC) student who sued the Illinois public institution for its policies restricting which campus bulletin boards students not affiliated with a registered student group may use. In April, the case was quietly dismissed (PDF) from federal district court, and the school was allowed to maintain its policy. In an article for The Rock River Times, Michael Kleen reports that Celletti has filed an amended complaint and is awaiting a second decision.

Last year, Kleen relayed RVC’s posting policy at the time the lawsuit was filed:

There shall be no posting of signs or written information on campus grounds except as permitted by RVC policies/procedures, or as approved by the Manager, Student Life.” Furthermore, “If there are any conflicts with these regulations the Manager, Student Life will have the authority to approve or disapprove the request using their discretion.

Celletti enlisted help from the Rutherford Institute after he was told that since he was not a member of a registered student group, his flyer encouraging students to read the U.S. Constitution could only be posted on two campus bulletin boards. Kleen summarizes Celletti’s complaint:

The free speech rights of non-affiliated students are significantly restricted, while campus clubs have a venue to promote their views. Additionally, the Student Life Manager has too much arbitrary control over what is posted and what is not.

The First Amendment prohibits straightforward viewpoint discrimination as well as grants of broad discretion to administrators in allowing or disallowing speech, since such discretion creates ample opportunity for viewpoint discrimination and selective enforcement.

Judge Philip Reinhard’s opinion (PDF) relied on Christian Legal Society v. Martinez (2010), in which the Supreme Court held that public universities may choose to recognize only student groups that subscribe to an “all-comers” policy. Judge Reinhard wrote:

A college’s use of an RSO program establishes a limited public forum. See
Christian Legal Society v. Martinez, … 130 S. Ct. 2971, 2984, n.12 (U.S. 2010). These recognized organizations can be given access to channels of communication that individuals and other organizations are denied. Id. at 2979. In Martinez, Hastings Law School allowed RSO among other things to advertise on designated bulletin boards and non-RSO to use generally available campus bulletin boards. The Supreme Court observed this “would do nothing to suppress CLS’s endeavors but neither would it lend RSO-level support to them.” Id. at 2981.

Even if this limitation on access to bulletin boards is allowable, though, a school’s policy needs to be clearly written and applied without consideration of the viewpoint expressed on the flyer in question. A policy that allows the student life manager “to approve or disapprove the request using their discretion” invites an unconstitutional abuse of that discretion.

RVC’s Student Handbook (PDF) for the 2012-13 school year does not include previous years’ explicit language concerning the student life manager’s “discretion,” but such discretion is implied (emphasis added):

There shall be no posting of signs or written information on the campus grounds except as permitted by RVC policies/procedures, or as approved by the Manager of Student Life.

With no stated guidelines for why a flyer might be approved or not approved, a school administrator may still approve or disapprove of student speech at his whim.

Under certain circumstances, a plaintiff can re-file a dismissed case, so Celletti is trying again. (It’s not clear whether Celletti has re-filed in time, however.) According to Kleen,

[i]n his amended complaint, Celletti clarified his argument and provided more case law to back it up. Fundamentally, he maintains that Rock Valley College should be a “marketplace of ideas” where platforms for expression (like bulletin boards) are available equally for all students. “The reality of this case is that because of the violation of Plaintiff’s First Amendment rights, Mr. Celletti was not able to effectively reach others and by doing so has destroyed the main element of a college’s purpose, to allow the free exchange of ideas to prosper,” he wrote.

As the Supreme Court stated in Ashcroft v. Iqbal (2009), in order to survive a motion to dismiss at this stage, a plaintiff must make allegations that, if true, state a plausible claim. In other words, it must be plausible that RVC’s actions impeded Celletti’s ability to share his views. If Judge Reinhard does not allow Celletti’s amended complaint to go forward, it would deny Celletti the opportunity to develop his case and would preclude an opportunity to create greater understanding about what constitutes censorship.

FIRE will watch closely to see whether Judge Reinhard’s decision will stand following Celletti’s amended complaint.