Opinion
Civil No. 3: 04-CV-0098-H.
November 24, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed September 22, 2004; Plaintiff's Response, filed October 12, 2004; and Defendants' Reply, filed October 26, 2004; and Plaintiff's Motion for Summary Judgment, filed September 27, 2004; Defendants' Response, filed October 18, 2004; and Plaintiff's Reply, filed November 2, 2004. For the following reasons, the Court is of the opinion that Defendants' Motion for Summary Judgment should be GRANTED and Plaintiff's Motion for Summary Judgment should be DENIED.
I. Background
Bourgault is "a professing Christian and a traveling evangelist" for his religious beliefs. (Pl.'s App. at 1.) Specifically, Bourgault travels to public universities throughout the country to preach and hand out pamphlets to college students as part of his ministry with Consuming Fire Campus Ministries. ( Id.)
On April 22, 2002, Bourgault visited the University of Texas at Arlington ("UTA"), a component institution of the University of Texas System ("UT System"), and began to preach from a pedestrian area near the campus university center. ( Id. at 1-3.) Some time after he began to preach, Defendant Sergeant McCord of the UTA police approached Bourgault and informed him that he needed permission from the student governance office to speak on campus. ( Id. at 3-4.) Bourgault went to the student governance office and filled out an application. ( Id.) On the application, Bourgault requested the use of a "free speech forum near Library or University Center . . . to preach from Bible to students." ( Id. at 35.) He identified himself as an off-campus speaker and identified Consuming Fire Campus Ministries as the organization seeking to hold a campus event. ( Id.) He also indicated that there was no student organization co-sponsoring the event. ( Id.) Defendant Jeff Sorensen, the Director of Student Governance and Organization for UTA, denied Bourgault's request and wrote "Not approved per Univ. Policy" on the application. ( Id.; Def.'s App. at 33-34.)
On June 21, 2002, Bourgault's attorney wrote to Defendant Sorensen, describing the events above and requesting permission that Bourgault be allowed to speak on campus. ( See Pl.'s App. at 36.) Defendant Sorensen forwarded Bourgault's attorney's letter to the Office of General Counsel for the University of Texas (UT) System, who replied to Bourgault's attorney in a letter dated July 3, 2002 ("July 3, 2002 letter"), that because Bourgault is not a student, faculty member, or staff member of UTA, he cannot engage in speech activities on the UTA campus. (Def.'s App. at 4, Pl.'s App. at 36-39.) The July 3, 2002 letter cited the Board of Regents' Rules and Regulations Chapter VI, Part One, Subsections 6.1 and 6.2 ("Rule 6.1" and "Rule 6.2"). (Pl.'s App. at 38.) Additionally, the Office of General Counsel informed Bourgault that he may not "engage in the desired speech activity . . . if he is sponsored by a student organization" and cited Subsection 6.71 of the Regents' Rules and Regulations ("Rule 6.71"). ( Id. at 39.) Finally, the July 3, 2002 letter informed Bourgault that if he attempted to engage in speech activities on the UTA campus, the administrators were directed to take "appropriate action in response." ( Id.)
Rule 6.1 reads:
The property, buildings, or facilities owned or controlled by the U.T. System or component institutions are not open for assembly, speech, or other activities as are the public streets, sidewalks, and parks. The responsibility of the Board of Regents to operate and maintain an effective and efficient system of institutions of higher education requires that the time, place, and manner of assembly, speech, and other activities on the grounds and in the buildings and facilities of the U.T. System or component institutions be regulated. Acting pursuant to the general authority of Texas Education Code Chapter 65, and the specific authority of Texas Education Code Chapter 51, the Board of Regents adopts and promulgates this Section relating to the use of buildings, grounds, and facilities for purposes other than programs and activities related to the role and mission of the U.T. System or component institution.
Rule 6.2 reads:
No person, organization, group, association, or corporation may use property, buildings, or facilities owned or controlled by the U.T. System or a component institution for any purpose other than in the course of the regular programs and activities related to the role and mission of the U.T. System or component institution, unless authorized by the Regents' Rules and Regulations. Any authorized use must be conducted in compliance with the provisions of the Regents' Rules and Regulations, the approved rules and regulations of the component institution, and applicable federal, State, and local laws and regulations.
Rule 6.71 reads:
A students' association, a registered student, faculty, or staff organization, or an alumni association may not reserve or use property, buildings, or facilities owned or controlled by the U.T. System or a component institution for the purpose of engaging in any project or program with any association, organization, or corporation, or with any individual or group of individuals that are not registered.
Bourgault filed the instant case on January 20, 2004, alleging violations of his First Amendment and other constitutional rights. Specifically, Bourgault alleges that the prior campus policy prohibiting evangelizing and witnessing, the Board of Regents' Rules and Regulations denying Bourgault access, and the campus policy requiring five days advance notice prior to speaking, to be overbroad and otherwise in violation of Plaintiff's freedom of speech, free exercise of religion, due process, and equal protection rights under the First and Fourteenth Amendments to the United States Constitution. (Pl.'s Verified Compl. at 10-11.)
Plaintiff's Motion for Preliminary Injunction was denied in its entirety by the Court's Order entered May 4, 2004. See Bourgault v. Yudof et al., 316 F. Supp. 2d 411 (N.D. Tex. 2004). Therein, the Court dismissed Plaintiff's claims alleging constitutional violations caused by the Board of Regents' Rule 6.71 student sponsorship requirement and the campus policy requiring five days advance notice as well as Plaintiff's demand for injunctive relief as to the prior campus policy prohibiting evangelizing and witnessing for lack of standing. Id. at 416-17.
Plaintiff's remaining claims are that: (1) Plaintiff is entitled to monetary and nominal damages for any unconstitutional violation caused by the prior campus policy which denied the right to evangelize or witness; (2) the Board of Regents' Rules 6.1 and 6.2 violate Plaintiff's First Amendment rights because they are overly restrictive for the forum in which Plaintiff sought to speak; (3) the requirement that Plaintiff seek student sponsorship is a form of viewpoint discrimination; (4) Plaintiff's Due Process rights were violated; (5) Plaintiff's Equal Protection rights were violated; and (6) Plaintiff's First Amendment right to the free exercise of religion was violated. See id. at 417-18. The Court now considers the Cross-Motions for Summary Judgment and Plaintiff's remaining claims.
II. Summary Judgment Standard
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits, and other summary judgment evidence illustrate that no reasonable trier of fact could find for the non-moving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-54 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. at 2552-54). "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991). In the instant case, no material fact is in dispute by the parties and therefore summary judgment is appropriate. ( See Pl.'s Br. at 1; Def's Br. at 3.)
III. Analysis
Plaintiff sues Defendants for violations of his First and Fourteenth Amendment rights. (Pl.'s Verified Compl. at 10-11.) Plaintiff sues all Defendants in their official capacity as well as Defendants Sorenson and McCord in their individual capacities. Plaintiff's claims against Defendants in their official capacities are, in effect, against the State of Texas. See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107 (1985). The First Amendment is binding on the states through the Fourteenth Amendment. Healy v. James, 408 U.S. 169, 171, 92 S.Ct. 2338, 2341 (1972).
A. Free Speech Claims
In analyzing the First Amendment rights of students and non-students on school property, the Supreme Court has noted that a school need not tolerate speech inconsistent with its basic educational mission. See Bathel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 3165 (1986). This is true even when such speech could not be censored if it occurred outside the school. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562 (1988). As a result, the First Amendment rights of students in public schools "are not automatically coextensive with the rights of adults in other settings." See Fraser, 478 U.S. at 682, 106 S.Ct. at 3164. Therefore, "a middle school is not a traditional public forum," Campbell v. St. Tammany Parish Schl. Bd., 231 F.3d 937, 941 (5th Cir. 2000), and "[t]he public schools do not possess all of the attributes of streets, parks, and other traditional public forums. . . ." Hazelwood, 484 U.S. at 267, 108 S.Ct. at 568. Therefore, a university "need not give students and non-students alike equal access to the University campus." Supple, 969 F.2d at 121; Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 777 F.2d 1046, 1050 (5th Cir. 1985) ("Schools are not considered traditional public forums in which outside visitors may freely espouse their views.") (internal citation omitted). Indeed, "school administrators must be given broad discretion in supervising the visitation of the school environment by persons not associated with the school." Texas State Teachers Ass'n, 777 F.2d at 1050-51 (citing Hall v. Bd. of Sch. Comm'rs of Mobile County, Ala., 681 F.2d 965 (5th Cir. 1982)). However, "the campus of a public university, at least for its students, possesses many characteristics of a public forum." Widmar v. Vincent, 454 U.S. 263, 267 n. 5, 102 S.Ct. 269, 273 n. 5 (1981) (emphasis added).
1. Forum Analysis
Whether a government restriction of speech on public property comports with the Constitution depends upon the forum status of the property in question. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954 (1983); Cornelius v. NAACP Legal Defense Educational Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448 (1985). Plaintiff argues that either the Library Mall or University Center is a traditional public forum and as such, any restriction on speech within that forum must be narrowly tailored to advance a significant government interest. ( See Pl.'s Br. at 16-17.) Defendant, on the other hand, argues that it has created, at most, a limited public forum, which only requires that the restrictions on speech be reasonable in light of the forum's purpose. (Pl.'s App. at 39; Def.'s Br. at 14-17.) The Court begins its forum analysis by recognizing that there are three basic categories of fora: traditional public fora, designated public fora, and nonpublic fora. Doe v. Santa Fe Indep. Schl. Dist., 168 F.3d 806, 819 (5th Cir. 1999).
a. Traditional Public Forum
Traditional public fora are places that "`by long tradition or by government fiat have been devoted to assembly or debate.'" Estiverne v. La. State Bar Ass'n, 863 F.2d 371, 376 (5th Cir. 1989) (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449). The mere right of ingress and egress by the general public on a campus does not establish either a traditional or designated public forum. See Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1217 (1976). Instead, only areas having as "a principal purpose . . . the free exchange of ideas" are deemed traditional public fora. Cornelius, 473 U.S. at 800, 105 S.Ct. at 3448.
In a traditional public forum, regulation of the time, place, and manner of speech must be content-neutral and be narrowly tailored to serve a significant government interest, leaving open ample alternative channels of communication. Perry, 460 U.S. at 45, 103 S.Ct. at 955; Frisby v. Schultz, 487 U.S. 474, 478-84, 108 S.Ct. 2495, 2499-501 (1988). The burden lies with the government to show affirmatively that the restriction is narrowly tailored to protect the identified significant government interests. See Supple, 969 F.2d at 119 (citing Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035 (1989).
"[T]raditional public fora are open for expressive activity regardless of the government's intent. The objective characteristics of these properties require the government to accommodate private speakers." Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 678, 118 S.Ct. 1633, 1641 (1998). See Bd. of Educ. v. Mergens, 496 U.S. 226, 244, 110 S.Ct. 2356, 2369 (1990). Government "may not by its own ipse dixit destroy the `public forum' status of streets and parks which have historically been public forums. . . ." United States Postal Serv. v. Council of Greenberg Civic Ass'n, 453 U.S. 114, 133, 101 S.Ct. 2676, 2687 (1981). Whether the Library Mall or University Center is a traditional public forum depends upon whether the property has "immemorially been held in trust for the use of the public, and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Perry, 460 U.S. at 45, 103 S.Ct. at 954-55. See Int'l Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 680, 112 S.Ct. 2701, 2706 (1992), citing Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S.Ct. 954, 964 (1939).
Municipal streets and parks have been recognized as "prototypical" examples of traditional public fora due to their history of being held in trust for public debate and assembly. See Schenck v. Pro-Choice Network, 519 U.S. 357, 377, 117 S.Ct. 855, 867 (1997). For such areas, no "particularized inquiry" is necessary. See Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 2500 (1988). The Supreme Court, however, "has rejected the view that traditional public forum status extends beyond its historic confines." Ark. Educ. Television Comm'n, 523 U.S. at 678, 118 S.Ct. at 1641; United States v. Am. Liberty Ass'n, 539 U.S. 194, 206, 123 S.Ct. 2297, 2305 (2003).
Plaintiff asserts that because the UTA campus contains areas which have objectively the same characteristics as municipal streets and parks, those areas must be protected in a manner similar to traditional public fora. (Pl.'s Br. at 8-14.) The Court is unpersuaded by this reasoning. The Court can find and has been pointed to no Supreme Court or Fifth Circuit holding that interior areas of a university campus are traditional public fora with a constitutional right of access for both students and non-students alike to utilize the areas for expressive purposes. Such a blanket rule would require, for instance, that lawns contained within the Pentagon interior be open to the general public for expressive purposes. The Court cannot, from the record, find that either the Library Mall or University Center has "immemorially . . . time out of mind" been held in trust for expressive purposes for the general public.
However, that is not the end of the inquiry. The Fifth Circuit has allowed for the possibility that some property otherwise not held "immemorially . . . time out of mind" in trust for expressive purposes may nevertheless be deemed a traditional public forum if such property is indistinguishable from surrounding traditional public fora and no notice is available to potential speakers that the property provides more a limited right to expression than do the surrounding fora. See Brister v. Faulkner, 214 F.3d at 682-83.
To determine if a traditional public forum exists, therefore, the Court must determine whether the property in question is distinguishable from other traditional public fora either by demarcation or other means by which notice might be provided to potential speakers indicating that they have entered a limited or nonpublic forum. See id. "[T]he location of property also has bearing because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction." Int'l Soc'y for Krishna Consciousness, 505 U.S. at 680, 112 S.Ct. at 2706, citing United States v. Grace, 461 U.S. 171, 179-80, 103 S.Ct. 1702, 1708 (1983) (holding that the outer boundaries of the Court were indistinguishable from municipal sidewalks which are traditional public fora); see also Brister v. Faulkner, 214 F.3d 675 (5th Cir. 2000).
Here, as in Brister and Grace, Plaintiff claims in his summary judgment pleadings that "there is no indication or physical demarcation of the public sidewalk, which is a public forum, and the university grounds, which typically are not." Brister, 214 F.3d at 682. Plaintiff argues that the UTA streets, sidewalks, parks, and pedestrian malls are indistinguishable from the surrounding municipal streets and sidewalks. (Pl.'s App. at 2-3.) However, Plaintiff only sought permission to speak at the Library Mall or University Center and did not attempt to speak on the purportedly indistinguishable streets and sidewalks. ( Id. at 2-3, 35.) Plaintiff, however, fails to allege in his Verified Complaint that either "the streets, sidewalks, parks, or pedestrian malls on the UTA campus are indistinguishable from the City of Arlington's streets, sidewalks, parks, and pedestrian areas" or that Plaintiff attempted to speak on and was denied access to any part of the UTA campus other than the Library Mall or University Center. See Bourgault, 316 F. Supp. 2d at 419. Therefore, Plaintiff lacks standing to bring a claim regarding the forum status of any property other than the Library Mall or University Center and therefore the Court limits its holdings to the Library Mall and University Center.
Plaintiff fails to provide summary judgment evidence that the Library Mall or University Center is indistinguishable from municipal property such that would provide no notice to non-students that a restricted right to speech might exist. See Brister v. Faulkner, 214 F.3d at 682-83. At most, Plaintiff provides evidence that "the interior sidewalks and streets are strikingly similar to sidewalks and streets found in the City of Arlington." (Pl.'s App. at 2.) Tellingly, Plaintiff's Declaration asserts that the campus of UTA is indistinguishable from the City of Arlington only with respect to the "perimeter sidewalks and streets of the UTA campus. . . . Without a city plat, I do not know nor could I know the difference between city property and campus property on the perimeter of the campus." ( Id.) Thus, Plaintiff has not shown that either the Library Mall or the University Center are located on the perimeter of the campus nor that either area is indistinguishable from the municipal streets, sidewalks, parks, or pedestrian malls. Therefore, Plaintiff fails to create a fact issue demonstrating that either the Library Mall or the University Center is a traditional public forum.
b. Designated Public Forum
Areas that are not "traditional public fora" may nevertheless be made public fora and afforded the same constitutional protections on speech as traditional public fora by government designation. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Perry, 460 U.S. at 45, 103 S.Ct. at 954. However, "[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. Rather, "[d]esignated public fora . . . are created by purposeful governmental action." See Ark. Educ. Television Comm'n, 523 U.S. at 677, 118 S.Ct. at 1641; Hays County Guardian v. Supple, 969 F.2d 111, 116 (5th Cir. 1992).
A designated public forum is established when an area or facility on government property is opened by government policy or practice "for indiscriminate use by the general public." See Perry, 460 U.S. at 47, 103 S.Ct. at 956. The Fifth Circuit has established a two factor test to determine whether a forum is a designated public forum: (1) the government's intent, and (2) the extent of the use granted. See Doe, 168 F.3d at 819. See also Cahill v. Tex. Workforce Comm'n, 121 F. Supp. 2d 1022, 1025 (E.D. Tex. 2000). To determine intent, the Court analyzes "the nature of the [forum] and its compatibility with the speech at issue." See Chiu, 260 F.3d at 346 (quoting Estiverne, 863 F.2d at 378); Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Doe, 168 F.3d at 819. "Government intent with regard to the forum is the critical starting point for determining whether regulation of speech in a particular forum should be subject to strict scrutiny." See Chiu, 260 F.3d at 346. This is because "[t]he government, when it chooses to open a forum, necessarily has leeway to establish the terms upon which the forum is opened." Campbell, 231 F.3d at 940.
Although government intent is important in determining whether property not considered a traditional public forum was designated as a public forum, "[g]overnment property . . . does not automatically cease to be a designated public forum because the government restricts some speech on the property. Otherwise the restriction of speech would be self-justifying." Supple, 969 F.2d at 117. However, "[i]f, simply by opening a facility for limited public discourse, the government were to designate a public forum, the regulation of which would be subject to strict scrutiny, the government might elect not to open such property for any public disclosure." Chiu, 260 F.3d at 347 (citing Ark. Educ. Television Comm'n, 523 U.S. at 681, 118 S.Ct. at 1643).
"[T]he government's policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice." Mergens, 496 U.S. at 244-47, 110 S.Ct. at 2369-70; Supple, 969 F.2d at 118 (internal citation omitted). When a designated public forum is established, the ability to "restrict speakers' access to this category of public forum is subject to the same [F]irst [A]mendment constraints that apply to traditional public for[a]." Chiu v. Plano Indep. Schl. Dist., 260 F.3d 330, 345 (5th Cir. 2001) (quoting Estiverne, 863 F.2d at 376).
The Board of Regents' Rules make clear that the University of Texas campuses are not open for indiscriminate use by the general public. ( See Pl.'s App. at 38-39.) These rules were in effect at the time Plaintiff sought access to the Library Mall and University Center for expressive purposes. ( Id.)
Although such areas may have been designated public fora accessible for expressive purposes by both students and non-students alike, "[t]he state is not required to retain the open character of [a designated public] forum." Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449; Cahill v. Tex. Workforce Comm'n, 121 F. Supp. 2d 1022, 1025 (E.D. Tex. 2000) ("The only real difference between the [traditional public forum and designated public forum] categories, is that the state retains the power to eliminate the second; the standards governing the restriction of speech are the same."). Therefore, the prior designation of the Library Mall and University Center as free speech areas did not convert the areas from nonpublic or limited public fora to designated or traditional public fora accessible by the public at-large for expressive purposes. Accordingly, the Court finds that neither the Library Mall nor the University Center constituted designated public fora available for the use of the public at-large.
The Court distinguishes between a designated public forum available for the indiscriminate use of the public at-large and a limited public forum created by designation which is accessible for expressive purposes by a limited segment of the public or for a limited topic, or both.
c. Nonpublic Forum
If an area or facility is not opened for indiscriminate use by the public or some segment of the public or for indiscriminate discussion on a particular topic, but instead is reserved for its intended purpose, no public forum has been created. See Perry, 460 U.S. at 46, 103 S.Ct. at 955; Hazelwood, 484 U.S. at 270; 108 S.Ct. at 569. "[A] forum may be considered nonpublic where there is clear evidence that the state did not intend to create a public forum or where the nature of the property at issue is inconsistent with the expressive activity, indicating that the government did not intend to create a public forum." Estiverne, 863 F.2d at 378 n. 9. A nonpublic forum is therefore "the residual class of government-owned property, to which the First Amendment does not guarantee access." Doe v. Santa Fe Indep. Schl. Dist., 168 F.3d 806, 819 (5th Cir. 1999) (quoting Hobbs, 968 F.2d at 481).
Although access is not guaranteed to a nonpublic forum, such a forum on government property is still a "government-sponsored medium of communication," and as such, regulation of expression in the nonpublic forum is subject to a standard of reasonableness. Chiu, 260 F.3d at 347. "The government can restrict access to a nonpublic forum `as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'" Ark. Educ. Television Comm'n, 523 U.S. at 677-78, 118 S.Ct. at 1641 (internal quotations omitted); Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451 ("Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral."); Supple, 969 F.2d at 117-18. That is,
although a speaker may be excluded from a non-public forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or [excluded] if he is not a member of the class of speakers for whose special benefit the forum was created . . ., the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2147 (1993) (quoting Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451).
The Court concludes that UT System and UTA's intent regarding the Library Mall and University Center was to make such property available for limited discussion by its faculty, staff, and students, or their registered organizations or affiliates. The University has allowed speech, as a purpose of these open areas, evincing an intent to create a limited public forum, as opposed to a nonpublic forum. See Bourgault, 316 F. Supp. 2d at 420; Campbell, 231 F.3d at 941; Estiverne, 863 F.2d at 378 n. 9. ( See Pl.'s App. at 32, 39.) The Court, in its Order entered May 4, 2004, recognized this intent and, based upon the evidence before it, concluded that the Library Mall and University Center constituted limited public fora designated by UTA. Bourgault, 316 F. Supp. 2d at 420.
d. Limited Public Forum
In addition to the three types of fora recognized above, the Fifth Circuit has articulated a fourth category of forum: the limited public forum. See Chiu, 260 F.3d at 345-46. The Supreme Court and the Fifth Circuit have not clearly or consistently established or applied a standard of review to restrictions on speech in a limited public forum. The case law regarding limited public fora utilizes both the strict scrutiny standard applicable to traditional and designated public fora and the reasonableness standard applicable to nonpublic fora. See, e.g., id. at 346-47 nn. 10-12 (describing confusion); Good News Club, 533 U.S. at 106-07, 121 S.Ct. at 2100 (2001) (internal quotation omitted) (reasonableness standard); Rosenberger, 515 U.S. at 829, 115 S.Ct. at 2516-17 (reasonableness standard); Ark. Educ. Television Comm'n, 523 U.S. at 678, 118 S.Ct. at 1641 (strict scrutiny standard); Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7 (strict scrutiny standard).
Although some courts have concluded that the limited public forum is a sub-category of the designated public forum category, this does not affect the standard to be applied as the Chiu court has clarified that the term "limited public forum" is not coextensive with the term "designated public forum" and the two should not be used interchangeably. See id. at 346-47 nn. 10-12. Both a designated public forum and a limited public forum are established by government designation of an area that is not a traditional public forum as an area accessible by the public for expressive purposes. See, e.g., Good News Club, 533 U.S. at 106-07, 121 S.Ct. at 2100 (2001). Because a limited public forum is established in a manner similar to a designated public forum, "the line separating the two categories remains undefined." Chiu, 260 F.3d at 346. The key difference between the two fora is that a limited public forum is established by opening up an area or facility on government property by government policy or practice to use by some limited segment of the population, such as student organizations, or for some limited purpose, such as for discussion of a particular topic. See Chiu, 260 F.3d at 346, citing Good News Club v. Milford Central Schl., 533 U.S. 98, 106, 121 S.Ct. 2093, 2100 (2001); Rosenberger v. Rector Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 2516-17. See also Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7; Chiu v. Plano Indep. Schl. Dist., 260 F.3d 330 (5th Cir. 2001). A designated forum, on the other hand, is created when the government opens a forum up to "indiscriminate use by the general public." Perry, 460 U.S. at 47, 103 S.Ct. at 956. If restrictions on the class of allowed speakers and topics is circumscribed so greatly as to remove any vestige of a public forum status, it is deemed a nonpublic forum, rather than a limited public forum. See Doe, 168 F.3d at 821.
In Chiu, the Fifth Circuit attempted to address the inconsistency regarding the limited public forum category. The court concluded that regulation of speech in a limited public forum must adhere to a reasonableness standard as opposed to the strict scrutiny standard of a designated public forum. See id. However, the court also stated that "once the government has designated a particular forum as appropriate for certain types of speech or for speech on particular topics, `speech for which the forum is designated is afforded protection identical to the protection provided to speakers in a traditional public forum.'" Id. at 347 (quoting Supple, 969 F.2d at 116). Because the Chiu court did not need to reach the issue of whether a limited public forum was in fact created to dispose of the case, its application of a standard to the limited public forum category is dicta.
The Court therefore relies upon Ark. Educ. Television Comm'n, 523 U.S. at 677, 118 S.Ct. at 1641, for the proposition that "[i]f the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny." Although this case uses the label "designated public forum," that label is applied only as to "the class which a designated public forum is made generally available." Id. The case says nothing as to what standard should be applied to speech to which the public forum is not made generally available.
This Court is of the opinion that when the government creates a limited public forum by opening up a forum to speech on a particular subject or by a particular class of speakers, it must protect all speech which falls within the expressive purposes for which the limited public forum was opened under the strict scrutiny standard. See Chiu, 260 F.3d at 347 (quoting Supple, 969 F.2d at 116). However, where, as in the instant case, speech does not fall within the expressive purpose for which the limited public forum was opened, that speech may be reasonably restricted. Lamb's Chapel, 508 U.S. at 394, 113 S.Ct. at 2147 (1993) (quoting Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451). To not allow the reasonable regulation of speech not falling within the expressive purpose for which the limited public forum would undermine the expressive value of the limited public forum. Heffron v. Int'l Soc'y Krishna Consciousness, Inc., 452 U.S. 640, 652-53, 101 S.Ct. 2559, 2566-67 (1981). See Tex. Rev. Soc'y v. Cunningham, Civ. No. A-86-CA-115, 659 F.Supp. 1239, 1245-46 (W.D. Tex. 1987).
The difficulty in determining whether the standards of a nonpublic forum or limited public forum apply is increased where permission is required, as such permission implies a nonpublic forum. See Ark. Educ. Television Comm'n, 523 U.S. at 679-80, 118 S.Ct. at 1642. In the instant case, the Court need not address this complicated issue. Under either test, a reasonableness standard would apply to Plaintiff's speech since he does not fall within the class of speakers for whose benefit the limited public forum was created. The Court therefore, in accordance with UTA's pleadings and intent, assumes that UTA created a limited public forum.
Therefore, two standards are applicable to regulations affecting speech on limited public fora, depending upon the class of speaker: (1) as to those persons or topics for whom "the government has made the property available, a limited public forum is to be treated as a [designated] public forum . . . [and] is bound by the same constitutional standards that apply in a traditional public forum contest" subject to a strict scrutiny standard; (2) as to "all other [speakers or topics] . . . it is treated as a nonpublic forum" subject to a reasonableness standard. See Alabama Student Party v. Student Gov't Ass'n of the Univ. of Ala., 867 F.2d 1344, 1350 (11th Cir. 1989). This approach is supported by Fifth Circuit precedent. Chiu, 260 F.3d at 348 ("[W]hen school district authorities elect to open public school facilities after school hours for public meetings during which public issues will be discussed [and questions allowed and answered] in a manner similar to a limited-topic school board meeting, the district officials have designated a public forum for the limited time and topic of the meeting."); cf. Campbell, 231 F.3d at 942 ("[E]ven if we assume that by granting access to the Cub Scouts, YMCA's, and parochial schools, the School District has created a "limited" public forum, the constitutional right of access would in any event extend only to other entities of similar character."); Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 777 F.2d 1046, 1050 (5th Cir. 1985) (same); Ark. Educ. Television Comm'n, 523 U.S. at 678-79, 118 S.Ct. at 1641-42 (restrictions upon speech for which the forum was not intended, on the other hand, need only be reasonable).
The Court distinguishes Roberts v. Haragan, No. 03-CV-140, 2004 WL 2203130, at *6 n. 11 (N.D. Tex. Sep. 30, 2004) from the instant case because Roberts related to the rights of a student on his campus, whereas the instant case relates to the rights of a non-student on a campus to which access has been limited. This Court disagrees with the conclusion in Roberts that Chiu precludes the application of a dual standard to the limited public forum category. Id. Chiu's proscription that a reasonableness standard is applicable to the limited public forum category is mere dicta, since Chiu did not conclude that a limited public forum existed. However, Chiu also noted that where the ability to use a designated public forum is limited to select topics or groups or both, strict scrutiny may nevertheless be appropriate. Since Chiu did not relate to individuals not authorized to speak by the forum, it is distinguishable here insofar as Alabama Student Party v. Student Gov't Ass'n of the Univ. of Ala., 867 F.2d 1344, 1350 (11th Cir. 1989), creates a dual standard for protected speech and non-protected speech.
The UT System and UTA have not permitted an indiscriminate range of expressive activities on the Library Mall or University Center. Rule 6.2 requires permission and sponsorship by faculty, staff, or students before any off-campus speaker uses any area or facility on the UTA campus. (Pl.'s App. at 38.) UTA's intent is clear. UTA aims to establish a limited public forum designed for use by faculty, staff, or students and their affiliates. See Campbell, 231 F.3d at 941. ( See Pl.'s App. at 32, 39.) The Court, in its Order entered May 4, 2004, recognized this intent and, based upon the evidence before it, concluded that the Library Mall and University Center constituted limited public fora designated by UTA. Bourgault, 316 F. Supp. 2d at 420.
This conclusion comports with Fifth Circuit case law which demonstrates that generally college campuses are considered limited public fora where they serve a student population but have a "general policy of open access." See Supple, 969 F.2d at 116 ("[T]he outdoor grounds of the campus such as the sidewalks and plazas are designated public fora for the speech of university students."); Pro-Life Cougars v. Univ. of Houston, 259 F.Supp. 2d 575, 582-83 (S.D. Tex. 2003) (finding outdoor areas of campus to be a designated public forum for student expression requiring regulation of student expression to be analyzed using the strict scrutiny standard).
Because Plaintiff is not sponsored by any faculty, staff, or student, Plaintiff's intended speech is not that which the limited public forum was designated to protect. Therefore, to prevail on his First Amendment speech claim, Plaintiff must establish that: (1) the UT System's sponsorship requirement (a) is an unreasonable reasonable restriction on speech, (b) constitutes improper viewpoint discrimination, or (c) is overly broad by allowing unfettered discretion in its application, or (2) that the prior campus policy constituted improper viewpoint discrimination and was the proximate cause of Plaintiff's injury. For the reasons which follow, Plaintiff cannot prevail on his First Amendment claims.
2. Alleged Violations
a. Unreasonable Restrictions
Plaintiff asserts that the UT System's Rules are unconstitutional because they place unreasonable restrictions on the speech of off-campus speakers. Restrictions on speech deemed disruptive to the forum or which would detract from the forum's intended use are deemed reasonable. See Texas v. Knights of the Klu Klux Klan, 58 F.3d 1075, 1079 (5th Cir. 1995). Plaintiff's only claim that the restriction on his speech was unreasonable is his claim that he was prohibited from speaking on the campus at any time, in any manner, at any place, whether sponsored by a registered organization or not. ( See Pl.'s Br. at 23-25.) Plaintiff claims that the July 3, 2002 letter prohibited him from ever speaking on the campus under threat of arrest. (Pl.'s Br. at 4-5; Verified Compl. at 6.) Although his speech may have been chilled by the letter, the letter itself does not suffice to establish a final University decision on Plaintiff's ability to secure sponsorship or speak on premises other than the Library Mall or University Center. No adverse action has been taken against any UTA Campus Events Information Sheet application completed by Bourgault for any area other than the Library Mall or University Center. Accordingly, Plaintiff's claim that an absolute ban is unreasonable is not ripe for adjudication. Plaintiff's claim that his prohibition from speaking at the Library Mall and University Center must also fail because Plaintiff has not demonstrated that he suffered an injury-in-fact since Plaintiff has not demonstrated that he sought sponsorship by a registered organization. See Bourgault, 316 F.Supp. 2d at 416.
Plaintiff baldly asserts that "any concern for educational disruption can be handled without the absolute ban in place." (Pl.'s Br. at 24.) While this may be true, "[t]he justification for the Rule should not be measured by the disorder that would result from granting an exception to [Plaintiff]. . . . Obviously, there would be a much larger threat to the State's interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely." Heffron, 452 U.S. at 652-53, 101 S.Ct. at 2566-67. Defendants have asserted that the educational mission of the UT System and UTA is supported by requiring sponsorship of off-campus speakers. (Pl.'s App. at 39.) The Court finds this justification to be reasonable and therefore GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claims that the UT System's Rules are unreasonable.
b. Unfettered Discretion
Plaintiff next claims that the UT System Rules provide unfettered discretion to the University administrators. (Pl.'s Br. at 19-20.) "[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." City of Lakewood v. Plain Dealer, 486 U.S. 750, 108 S.Ct. 2138 (1988). Indeed, "the danger of censorship and of abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1244 (1975).
"[T]he success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so." Forsyth County v. Nationalist Mvmt., 505 U.S. 123, 130, 133 n. 10, 112 S.Ct. 2395, 2401, 2403 n. 10 (1992) ("[G]overnment regulation that allows arbitrary application is `inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.'") (quoting Heffron, 452 U.S. at 649, 101 S.Ct. at 2565). Therefore, where a policy provides discretion to deny the right to expression and is "devoid of any objective guidelines or articulated standards" guiding the decision to allow or deny the right to expression and the decision to deny the right to express oneself is not reviewable, the policy is facially invalid as allowing unfettered discretion and arbitrary decision-making. See Pro-Life Cougars v. Univ. of Houston, 259 F. Supp. 2d at 583-84 (citing Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775, 780-81 (2002)).
In the instant case, Plaintiff alleges that both the Administration and the student groups who must sponsor Plaintiff's speech have unfettered discretion to deny him the right to speak. (Pl.'s Br. at 19-20, 22.) The Court finds these arguments unpersuasive.
Defendants' policy, based on its consistent practice, is to deny outside speakers access to the university grounds for communicative purposes without sponsorship from faculty, staff, or students. (Pl.'s App. at 38.) Defendants did not have discretionary authority to allow the Plaintiff to speak without such sponsorship. ( Id.; Def.'s App. at 34-35, 37.) Therefore, Plaintiff's claim of unfettered administrative discretion is without merit in the instant case. See Supple, 969 F.2d at 121-22. There is simply no discretion, unfettered or otherwise.
That a few other non-sponsored groups may have utilized the Library Mall or University Center for expressive purposes does not indicate a consistent practice or policy of allowing such speech and is insufficient to establish a constitutional violation for reasons described throughout this Opinion. ( See Pl.'s App. at 60-64).
Plaintiff misunderstands the June 26, 2002 facsimile requesting that no off-campus speakers be allowed onto the campus while the administration reviews the campus policy for consistency with the UT System Rules. ( See Def.'s App. at 5.) While this restriction may or may not be reasonable as to speakers for whose benefit the limited public forum was created, this restriction is not properly before the Court and shall not be considered in this Order.
To the extent that the administration had discretion to deny an application for an outside speaker sponsored by a student group, Plaintiff lacks standing to assert such a claim. Bourgault, 316 F. Supp. 2d at 416. Plaintiff has not provided any evidence to illustrate that he approached student groups for sponsorship. Therefore, Plaintiff has no concrete injury suffered by any alleged unfettered student group discretion and Plaintiff's claim must be dismissed. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment as to Plaintiff's claims that the UT System Rules provide UTA administrators unconstitutionally broad discretion to restrict speech on the Library Mall and University Center.
c. Viewpoint Discrimination
Plaintiff next argues that the UT System Rules and the UTA prior policy are unconstitutional because they discriminate against religious speech. "[V]iewpoint discrimination violates the First Amendment regardless of the forum's classification." Chiu, 260 F.3d at 349-350, quoting Hobbs v. Hawkins, 968 F.2d 471, 481 (5th Cir. 1992). Irrespective of the forum classification, the government may not discriminate based upon the viewpoint of the speaker. Doe, 168 F.3d at 821 ("Once the State has established a limited public forum, it cannot discriminate against speech because of the message, even if that message is religious in nature.") (citing Rosenberger, 515 U.S. at 828-31, 115 S.Ct. at 2516-18).
The Court, in its Order entered May 4, 2004, dismissed for lack of standing Plaintiff's claim that the prior university policy prohibiting evangelism constitutes viewpoint discrimination. Bourgault, 316 F.Supp. 2d at 420. The Court also concluded, based upon the same material evidentiary record supporting the Cross-Motions for Summary Judgment, that the requirement that off-campus speakers be sponsored by faculty, staff, or students is not facial viewpoint discrimination. Id. Plaintiff has provided the Court with no additional evidence to establish that the student sponsorship requirement of the UT System's Rules constitutes viewpoint discrimination.
The Court therefore concludes that Plaintiff has not suffered a constitutional injury warranting nominal or monetary damages since Plaintiff did not seek student sponsorship as required by the UT System's Rules. See Brister v. Faulkner, 214 F.3d at 685-86 (awarding no damages where reasonable time, place, and manner restrictions justified restricting plaintiffs' speech despite the impropriety of such regulations on another section of the property); Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001) (absence of constitutional injury makes qualified immunity issue moot). Accordingly, Defendants' Motion for Summary Judgment is GRANTED as to Plaintiff's claims of viewpoint discrimination.
B. Remaining Claims
Plaintiff's remaining free exercise of religion, due process, and equal protection claims are wholly without merit and lack any evidentiary or argumentative support throughout the history of this case. The Court therefore DISMISSES these claims. Based substantially on the reasoning provided above, the Court finds Plaintiff's remaining overbreadth and vagueness challenges, both facial and as-applied, to be without merit or that Plaintiff lacks standing to assert such claims. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100 (1987) ("A facial challenge . . . is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."); Campbell, 231 F.3d at 944 ("[T]he distinction between religious instruction as part of a religious service and instructing on the matter of religion is clear. St. Tammany's rules need not be read to prohibit the latter").
IV. Conclusion
For the foregoing reasons, the Court GRANTS Defendants' Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment. Judgment will be entered accordingly.
SO ORDERED.