Photo by Nathan Dumlao on Unsplash
Madeline Pinto, University of Cincinnati Law Review, Associate Member
I. Introduction
The First Amendment of the United States Constitution protects citizens’ fundamental right to freedom of speech.[1] The First Amendment applies to public universities as arms of the state through the Fourteenth Amendment.[2] University campuses are often heralded as marketplaces of diverse ideas.[3] However, there exists on many university campuses a countervailing pull towards political correctness and the creation of safe spaces.[4] As a result, public universities frequently serve as the battleground for rigorous conflicts over the nature and breadth of the First Amendment’s protection of free speech.[5]
On April 1, 2020, Students for Life at Georgia Tech (“Students for Life”) filed suit against Regents of the University System of Georgia, President Ángel Cabrera of the Georgia Institute of Technology (“Georgia Tech”), several key members of Georgia Tech’s administration, and Georgia Tech’s Student Government Association (“SGA”) (collectively “Georgia Tech”).[6] Students for Life alleges that Georgia Tech violated its First and Fourteenth Amendment rights by refusing its request for funding from the pool of mandatory student activity fees to hold an event featuring Alveda King, a former member of the Georgia House of Representatives and the niece of Dr. Martin Luther King Jr.[7] Students for Life claims that in reaching the decision to reject the organization’s funding request, Georgia Tech engaged in impermissible viewpoint discrimination and thus violated Students for Life’s First Amendment right to free speech.[8]
Although Students for Life alleged several different claims against Georgia Tech, this article focuses narrowly on the viability of Students for Life’s claim that Georgia Tech violated the organization’s First Amendment right to freedom of speech. The Supreme Court’s public forum doctrine provides a useful framework for determining whether the restriction Georgia Tech placed on Students for Life’s speech passes constitutional muster.[9] Application of the Supreme Court’s public forum jurisprudence to the facts alleged in the complaint reveals that Students for Life will most likely prevail in its claim that Georgia Tech violated its First Amendment right to freedom of speech.
II. Background
Students for Life is a registered student organization at Georgia Tech, a public university within the University System of Georgia.[10] Although Students for Life is non-partisan, part of the organization’s mission is to advocate for and raise awareness of the pro-life movement among Georgia Tech students.[11]
Since 2017, Georgia Tech has required any student enrolled in more than four credits to pay a $40 mandatory student activity fee.[12] These mandatory student activity fees are made available to student organizations to hold expressive events.[13] In order to receive funds, a student organization must first submit a request to the SGA’s Joint Finance Committee (“JFC”).[14] The JFC reviews the funding request and then recommends to the Undergraduate House of Representatives and the Graduate Senate (collectively the “SGA Legislature”) whether to approve or deny the request.[15] The JFC’s policy “prohibits distribution of student activity fees for ‘political activities’ and ‘religious activities.’”[16] The funding request is then reviewed by the SGA Legislature and must be approved by both houses with 60% of the student representatives voting in favor of the request.[17]
During the fall semester of 2019, Students for Life planned to invite Alveda King (“Ms. King”) to Georgia Tech’s campus to speak about “her experience in the civil rights movement and how students can continue to protect civil rights today.”[18] Students for Life submitted a request for funding from the pool of mandatory student activity fees to the JFC.[19] The JFC concluded that Students for Life’s proposed event was neither political nor religious and referred the funding request to the SGA Legislature.[20] Although the majority of event-funding requests are “fast-tracked,” meaning “there is little to no discussion on the bill and it is voted on in a package with other Fast Tracked bills,” Students for Life was not permitted to fast-track its funding request because members of the SGA Legislature wished “to discuss the viewpoints that would be presented at the event.”[21] During the SGA Legislature’s review of the funding request, SGA members questioned Students for Life about “whether Ms. King would discuss abortion or religion” and asked whether Students for Life could “guarantee that the speaker will not talk about LGBT issues.”[22] Several SGA members opposed the request “because of the viewpoints Ms. King expressed in the past” regarding same-sex marriage.[23] In particular, one SGA member voiced opposition to the request because “Dr. King is a known homophobe who has previously said things that can negatively affect the community.”[24] Another member of SGA voted against Students for Life’s request because Ms. King “is largely known for her stance on abortion” and a “pro-life stance is certainly political, given the dividing nature of this in current national politics.”[25] Ultimately, the SGA Legislature rejected Students for Life’s funding request.[26]
After exhausting its remedies in the University’s internal appeals process, Students for Life filed the present suit, alleging that Georgia Tech engaged in unconstitutional viewpoint discrimination when it refused Students for Life’s funding request and thereby violated the organization’s First Amendment right to free speech.[27]
III. Legal Framework
The public forum doctrine governs First Amendment issues when government-owned property is involved.[28] For the purposes of the public forum doctrine, a public space need not be an actual physical space but can be more abstract.[29] For example, in Rosenberger v. Rector & Visitors of Virginia, the Supreme Court applied the public forum doctrine to the abstract public forum created by the University of Virginia’s distribution of funds for the production of student publications.[30] In Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, the Supreme Court identified three categories of public forums, each governed by a different standard of review.[31] Traditional public forums are places “which 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.”[32] If the government imposes a content-based regulation in a traditional public forum, it must pass strict scrutiny, meaning that the government must show that the regulation is necessary to serve a compelling state interest and that the regulation is narrowly drawn to achieve that state interest.[33] However, the government may impose content-neutral regulations on the time, place, and manner of expression in a traditional public forum as long as the regulations are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communicating the speaker’s message.[34]
Designated public forums are places that the government has voluntarily and intentionally made available to members of the public or to a particular segment of the public for First Amendment expressive activities.[35] Although the government is not required to keep the forum open to the public, as long as the government chooses to keep the forum open, it must abide by certain rules.[36] The specific standard of review to be applied depends on whether the designated public forum is limited or unlimited in nature.[37] A limited public forum is a forum that the government reserves for speakers of a certain identity or for expression regarding a particular subject matter.[38] In contrast, an unlimited designated public forum is a forum that the government makes available to all members of the public for all types of expression.[39] Within a limited designated public forum, the government may only impose regulations on expression that are reasonable in light of the purpose of the forum and are viewpoint neutral.[40] Within an unlimited designated public forum, the government may impose content neutral regulations on expression that are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communicating the speaker’s message.[41] Any content-based regulations the government imposes on expression in an unlimited designated public forum must pass strict scrutiny.[42]
The final type of public forum is the non-public forum, which encompasses any other public property that is not a forum for public expression either traditionally or by designation.[43] Within a non-public forum, any regulation that the government imposes on expression must be reasonable in light of the purpose of the forum and viewpoint neutral.[44]
IV. Discussion
Students for Life most likely has a valid freedom of speech claim against Georgia Tech because Georgia Tech engaged in impermissible viewpoint discrimination when it refused to provide Students for Life with funding from the mandatory student activity fees fund. The public forum doctrine applies in this case because Georgia Tech is a public university and, thus, qualifies as property owned by the state. Although this case does not involve a public forum as an actual physical space, the Supreme Court’s decision in Rosenberger indicated that the public forum doctrine still applies to the abstract forum Georgia Tech created by distributing funds from the pool of mandatory student activity fees for student organizations’ expressive events.
The public forum created by Georgia Tech’s disbursement of mandatory student activity fees is most likely a limited designated public forum. By making the pool of mandatory student activity fees available to student organizations for expressive events, Georgia Tech has voluntarily and intentionally opened up a public forum for specific types of First Amendment expressive activities by a particular segment of the public. This is a limited, rather than an unlimited, designated public forum because Georgia Tech makes these funds available only to a particular segment of the public: registered Georgia Tech student organizations. Additionally, Georgia Tech only permits student organizations to use these funds for specific types of First Amendment expressive activities, events that are neither political nor religious in nature and that are consistent with Georgia Tech’s educational mission. Therefore, any restriction or regulation Georgia Tech places on expression in this limited designated public forum, including its refusal to fund Students for Life’s event, must be reasonable in light of the purpose of the forum and viewpoint neutral in order to pass constitutional muster.
Georgia Tech’s decision to reject Students for Life’s funding request could be construed as reasonable in light of the purpose of the forum. The purpose of the forum created by distributing mandatory student activity fees is “to support the institution’s mission to enrich the educational, institutional, and cultural experience of students.”[45] It is plausible that allowing a speaker, such as Ms. King, whose views on abortion, religion, and LGBTQ rights offend a large number of students would disrupt rather than “enrich the educational, institutional, and cultural experience of students.”[46] In this way, Georgia Tech could argue that it was justified in restricting Students for Life’s access to funds for Ms. King’s event because such a restriction on the student organization’s speech was reasonable in light of the purpose of the forum. On the other hand, Students for Life could argue that the purpose of opening up this designated public forum was “to enrich the educational, institutional, and cultural experience of students” by exposing them to diverse ideas and viewpoints that may not always accord with their own.[47] As such, it was not reasonable for Georgia Tech to restrict Students for Life’s access to funding in light of the purpose of the forum.
However, regardless of how the court rules on whether Georgia Tech’s decision was reasonable in light of the purpose of the forum, Georgia Tech most likely engaged in impermissible viewpoint discrimination in reaching the decision to reject Students for Life’s funding request. Georgia Tech is permitted to reserve its limited designated public forum for the discussion of certain topics. However, Georgia Tech did not reject Students for Life’s request for funding because the content or subject matter of Ms. King’s speech fell outside the approved categories of expressive events that Georgia Tech permits to be funded by the pool of mandatory student activity fees. In fact, the JFC discussed whether Ms. King’s speech was a prohibited political or religious event, and determined that it was neither.[48] Rather, Georgia Tech decided to reject Students for Life’s funding request because Ms. King was likely to express an unpopular viewpoint with which the members of the SGA Legislature disagreed. Students for Life was not permitted to fast-track its funding request because the SGA Legislature wanted to “discuss the viewpoints” that Ms. King would express at the event.[49] Additionally, the SGA Legislature’s discussion of Students for Life’s funding request indicates that the SGA members rejected the request because they disagreed with Ms. King’s viewpoint. In particular, several SGA members voiced opposition to the request specifically because Dr. King is known for expressing an anti-same-sex marriage and pro-life viewpoint. Further, a review of the type of events the SGA Legislature has approved for student activity fees funding in the past reveals that the SGA members’ primary issue with Students for Life’s proposed event was Ms. King’s viewpoint.[50] The SGA Legislature has permitted other student organizations to use the pool of mandatory student activity fees to fund expressive events featuring similar content to that of Students for Life’s proposed event, the only difference being that the funded events featured speakers who expressed viewpoints the SGA members found more palatable. For example, mandatory student activity fees were previously used to fund “an event featuring Andrew Gillum, a pro-choice Democrat.”[51] Therefore, based on the facts alleged in the complaint, a court will most likely find that Georgia Tech’s decision to restrict Students for Life’s access to the pool of mandatory student activity fees was not viewpoint neutral as required by the First Amendment and, thus, violated Students for Life’s constitutional right to free speech.
V. Conclusion
Students for Life will likely prevail on its claim that Georgia Tech’s decision to reject the organization’s funding request violated Students for Life’s First and Fourteenth Amendment rights to free speech. Under the public forum doctrine, Georgia Tech created a limited designated public forum by disbursing funds from the pool of mandatory student activity fees to student organizations for the funding of expressive events. As such, Georgia Tech may only impose regulations on expression in this forum that are both reasonable in light of the purpose of the forum and viewpoint neutral. Students for Life will most likely be able to prove that Georgia Tech engaged in viewpoint discrimination when the SGA Legislature declined the organization’s funding request based on concerns that Ms. King would express pro-life and anti-same-sex marriage opinions at the event. Consequently, Students for Life will be able to establish that Georgia Tech’s decision to restrict its access to the forum violated the organization’s First and Fourteenth Amendment rights to free speech.
[1] U.S. Const. amend. I.
[2] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 822 (1995).
[3] Joseph Blocher, Institutions in the Marketplace of Ideas, 57 Duke L.J. 821, 877 (2008).
[4] Abigail Hauslohner & Susan Svrluga, Free Speech or Hate Speech? Campus Debates Over Victimhood Put Universities in a Bind, The Washington Post (Oct. 20, 2017), https://www.washingtonpost.com/national/free-speech-or-hate-speech-campus-debates-over-victimhood-put-university-officials-in-a-bind/2017/10/20/7f610dfe-aa07-11e7-92d1-58c702d2d975_story.html.
[5] See id.
[6] Complaint at 7-8, Students for Life at Georgia Tech v. Regents of the University System of Georgia, No. 1:20-cv-01422 (N.D. Ga. April 1, 2020).
[7] Id. at 2-4.
[8] Id.
[9] See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45-6 (1983).
[10] Complaint, supra note 6, at 5; 7.
[11] Id. at 5-6.
[12] Id. at 10.
[13] Id.
[14] Id. at 14.
[15] Id.
[16] Id. at 15.
[17] Id.
[18] Id. at 2.
[19] Id.
[20] Id.
[21] Id. at 25-6.
[22] Id. at 26-7.
[23] Id. at 27.
[24] Undergraduate House of Representatives 09-17-2019 Meeting Minutes, Ex. 7, at 4.
[25] Graduate Student Senate 09-24-2019 Meeting Minutes, Ex. 8, at 7.
[26] Complaint, supra note 6, at 28-9.
[27] Id. at 29-31.
[28] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n., 460 U.S. 37, 44 (1983).
[29] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995).
[30] Id.
[31] 460 U.S. at 45-6.
[32] Id. at 45.
[33] Id.
[34] Id.
[35] Id. at 45-6.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 46.
[41] Id. at 46.
[42] Id. at 46.
[43] Id.
[44] Id.
[45] Complaint, supra note 6 at 10.
[46] Id.
[47] Id.
[48] See id. at 25.
[49] Id. at 26.
[50] Id. at 24.
[51] Id.
