October 17, 2013
President Judy Bonner
University of Alabama
Office of the President
P.O. Box 870100
Tuscaloosa, Alabama 35487
Sent via U.S. Mail and Facsimile (205-348-7238)
Dear President Bonner:
The Foundation for Individual Rights in Education (FIRE) writes to you a second time this year regarding the University of Alabama’s (UA’s) policy on “Use of University Space, Facilities & Grounds.” As we detailed in our letter to you on May 22, 2013, UA’s grounds use policy restricts student speech and expressive activity in violation of the First Amendment. We were disappointed not to receive a response to our May 22 letter, which discussed the constitutionality of the policy both as written and as applied to the Alabama Alliance for Sexual and Reproductive Justice (AASRJ). A copy of our letter is enclosed here for your reference.
We have recently been made aware of important and necessary changes to UA’s grounds use policy. These revisions are an improvement for students’ First Amendment rights on UA’s campus, and we are encouraged by the university’s decision to revise its policy. However, FIRE has a number of remaining concerns about the new version of the grounds use policy. We write today to urge the university to complete the process it has begun and to ensure that UA’s policies fully respect students’ First Amendment rights.
As with the previous version of UA’s grounds use policy, the new policy requires that students and student groups applying “for use of the Grounds” request permission “10 working days prior to the Event.” The policy also still provides that “[i]f an Event does not involve factors that require multiple University department approvals, approval may be given in as few as 3 days, if the GUP [grounds use permit] form is filled out completely and accurately.” However, UA’s policy now includes the following provisions:
If an event is spontaneous, such that it is occasioned by news or issues coming into public knowledge within the preceding two (2) calendar days, an expedited request for a GUP may be made by a University Affiliate. In such event, the University will attempt to accommodate and provide access to the University Affiliate, within twenty-four hours, to an area of the Grounds which is available and which does not interfere with regular academic programs or scheduled events and programs.
[…] If an Event is a counter-event, such that it is occasioned in response to an Event for which a GUP has been issued, an expedited request for a grounds use permit may be made by a University Affiliate. In such event, the University will attempt to accommodate and provide access to the University Affiliate, within twenty-four hours, to an area of the Grounds which is available and which does not interfere with regular academic programs or scheduled events and programs.
Additionally, UA’s policy now states the following, in relevant part, with respect to distribution of literature on campus:
Printed materials may be distributed on public sidewalks. However, the distribution of printed materials on University sidewalks, including those on and around the Quad, constitutes an Event for which a GUP must first be issued.
While FIRE appreciates the university’s effort to provide greater accommodations for “spontaneous” speech and “counter-event[s],” we have a number of remaining concerns with the new provisions in the grounds use policy.
First, the policy invests UA officials with unfettered discretion to decide whether to grant an “expedited request” for a grounds use permit for spontaneous expressive activity or for a counter-protest in response to a planned activity. In either situation, the policy simply says that the university “will attempt to accommodate and provide access to the University Affiliate, within twenty-four hours, to an area of the Grounds which is available and which does not interfere with regular academic programs or scheduled events and programs.” Yet the policy does not state on what basis university officials will decide whether to grant the permit request. Moreover, there is no guarantee that a student’s or group’s request for expedited review will be granted—rather, the university has merely committed itself to “attempt[ing]” to make the accommodation within twenty-four hours. This unfettered discretion leaves open the possibility of viewpoint discrimination on the part of university officials, a particularly pernicious violation of the First Amendment.
As we reminded you in our first letter, it has long been settled law that the First Amendment is fully binding on public universities such as UA. See Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”). Under First Amendment standards, UA’s amorphous procedure for reviewing expedited requests does not pass muster as it grants almost complete discretion to UA administrators to permit or deny students from engaging in protected expressive activity on campus. As the Supreme Court has made clear, “subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth v. Birmingham, 394 U.S. 147, 150–151 (1969).
Without the type of “narrow, objective, and definite standards” prescribed by the Supreme Court, UA’s policy is ripe for selective enforcement and viewpoint-based application. Unfortunately, this concern is far from theoretical. As discussed recently in The Crimson White student newspaper (“What’s the use?: After updates, grounds use permit poses procedural complications,” October 8, 2013), UA appears to have foregone its requirement of a grounds use permit request for student organizers of the “Stand in the Schoolhouse Door 2013” march. According to The Crimson White, the student organizers of this march, which was held on September 18 in response to allegations of racial discrimination in the recruitment process of certain sororities at UA, never formally submitted a permit request. Indeed, the article is clear on this point:
Ross Green, one of the demonstration’s student organizers, said event leaders did not file a written request for use of Gorgas Library or Rose Administration Building.
“We never filed any paperwork for a grounds use permit, and we never had any intention of doing so because we were set on doing it on the steps of Rose,” Green said. “We didn’t want them to tell us to move it to some corner of the Quad where it wouldn’t have had as big of an impact.”
Despite this failure to comply with UA policy, UA officials evidently granted the event a permit through the new expedited review process. The event proceeded without incident or disruption, proving the permitting process to be unnecessarily restrictive. The contrast in the university’s handling of the AASRJ counter-protest in April with its handling of the September 18 march—despite the fact that the earlier event involved mere distribution of literature, which, to any reasonable observer, is by nature more peaceful and less prone to disruption than a protest march—is stark, and speaks poorly of UA’s ability to accommodate all types of student speech and expressive activity under its new policy.
If the university’s new policy will result in such favorable treatment for some students or student organizations, but not others—whether due to political pressure, the content of the event in question, or other impermissibly content- and viewpoint-based factors—the university will fail to fulfill its legal and moral obligation to uphold the First Amendment rights of all students. By allowing such vast discretion in determining when exceptions to the 10-day policy may be granted, UA is courting legal trouble should even a low-level administrator treat groups differently based on their viewpoints or the content of their message.
Second, FIRE is concerned by the new provision declaring that “the distribution of printed materials on University sidewalks, including those on and around the Quad, constitutes an Event for which a GUP must first be issued.” On a public university campus, students and student groups must be allowed to engage in the peaceful distribution of materials without being required to provide prior notice and approval. As we stated in our May 22 letter to you:
On a college campus, there is hardly a more fundamental exercise of First Amendment rights than the act of peacefully distributing literature to students in public, open spaces. Students and student organizations must be able to engage in free expression without prior constraints, including requirements of notice and approval. As the Supreme Court has declared, “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002).
While the university may have an interest in receiving prior notice about expressive activities that involve a very large number of participating individuals or present a greater likelihood to disrupt the educational environment—for example, a march through campus involving hundreds of people, or a demonstration using amplified sound near an academic building—it does not have such an interest in regulating the peaceful distribution of literature in open, public areas of campus. UA’s new policy unnecessarily threatens the First Amendment rights of students by failing to recognize this crucial distinction.
Third, and perhaps most importantly, the policy still does not allow for truly spontaneous, unreserved speech anywhere on campus. Despite its improvement, the policy continues to require prior notice and approval even for speech “occasioned by news or issues coming into public knowledge within the preceding two (2) calendar days,” as well as for “counter-event[s]” that are “occasioned in response to an Event for which a GUP has been issued.” Even with respect to these categories, students and student organizations must first submit a permit application to the university and then wait up to 24 hours in order to exercise their basic First Amendment rights. In fact, even with UA’s changes to its policy, it is unclear whether the AASRJ student group would have been able to engage in its counter-protest. After all, as we detailed in our first letter, the group, along with the vast majority of campus, only learned of the planned protest—scheduled for April 10 and 11—on April 9. Under UA’s new policy, it would have been unreasonably difficult to obtain a permit in time for the scheduled event, and the group’s request would have been left at the mercy of UA administrations exercising their discretion under the vague terms of the new policy.
Once again, we remind you that while public universities such as UA may establish reasonable “time, place and manner” restrictions on expression, these restrictions must be “narrowly tailored” to “serve a significant governmental interest” and must “leave open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). In contrast, UA’s requirement of a grounds use permit applies regardless of the nature of the event in question. It is difficult to ascertain what is reasonable about requiring prior notice and approval for silent leafleting on a public university campus, or for every single protest or demonstration regardless of its size, its noise level, and other relevant factors. UA would be hard-pressed to demonstrate that these across-the-board restrictions on expression are “narrowly tailored” to “serve a significant governmental interest.”
The University of Alabama would be better served by allowing for truly spontaneous expression from its students, and by opening up many of the large, open spaces on its campus to free speech. Indeed, FIRE would be thrilled to work with the UA administration toward this objective, and to assist the university with the process of policy revision. We are optimistic that with the necessary changes to the university’s policy, students at UA will enjoy a greater ability to speak freely and exchange ideas with their peers.
FIRE stands ready to assist the University of Alabama with revising its policy. We request a response to this letter by November 7, 2013. I look forward to hearing from you.
Associate Director of Legal & Public Advocacy
Mark Nelson, Vice President for Student Affairs
Tim Hebson, Dean of Students