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Justices deny free-speech case

U.S. court declines to review argument on ASU immunity by Jaime Adame | July 4, 2021 at 3:00 a.m.

The U.S. Supreme Court on Friday declined to review the standard for immunity that shielded Arkansas State University officials who had been sued over a student's free-speech rights.

The Alliance Defending Freedom in February filed a petition asking the nation's highest court to review a free-speech lawsuit dismissed in 2019.

The advocacy group -- which has been successful in other cases before the U.S. Supreme Court -- claimed that questions remained unresolved after the 8th Circuit Court of Appeals upheld the dismissal of a lawsuit filed by an ASU student and a chapter of the conservative group Turning Point USA.

"We are pleased to prevail once again just as we did in the trial court and the 8th Circuit Court of Appeals," Jeff Hankins, a spokesman for the ASU System, said in a statement Friday.

In October 2017, Ashlyn Hoggard, at that time an ASU student, and a representative of Turning Point were told by an ASU administrator that they could not have an information table in an area reserved for "tabling" by registered student organizations.

Policy changes were cited in a U.S. district court order dismissing the case in 2019, but the Alliance Defending Freedom sought a review of the immunity standard for public university officials, particularly in First Amendment cases.

The 8th Circuit opinion in the case states that "the Tabling Policy's enforcement against Hoggard on Oct. 11, 2017, was unreasonable and unconstitutional," but that defendants named in the lawsuit -- including members of ASU's governing board -- "may reasonably have not understood this at the time."

In 2018, Betsy DeVos, at the time U.S. education secretary, discussed the dispute in the context of a speech criticizing actions taken by some college administrators regarding campus free speech.

The ASU System hired David Frederick, a Washington, D.C., attorney, to defend against the advocacy group's U.S. Supreme Court petition.

The 27-page brief submitted in April by Frederick stated that the case "concerns an isolated episode in which ASU officials applied a now-repealed policy limiting the ability to set up tables outside a student union to registered student organizations."

Invoice records released under the state's public-disclosure law show Frederick's work over a two-month period cost the ASU System about $116,000.

Supreme Court Justice Clarence Thomas wrote a three-page statement respecting the court's denial of the Alliance Defending Freedom's petition but also raising questions about the immunity standard more generally.

Thomas wrote that while there is precedent for executive officers who violate federal law to be "immune from money damages suits" unless "their conduct violates a 'clearly established statutory or constitutional right[t] of which a reasonable person would have known,'" he said this stands on "shaky ground" because it is not made explicit in the law and "may have little basis in history."

The 8th Circuit, in the lawsuit that named ASU officials, "granted immunity to the officials after determining that their actions, though unlawful, had not transgressed 'clearly established' precedent," Thomas wrote.

But Thomas questioned "why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?

We have never offered a satisfactory explanation to this question."

In a statement, Chris Schandevel, an attorney with Alliance Defending Freedom, said, in part: "As Justice Thomas correctly noted, university officials have plenty of time to review their policies and consider the constitutionality of their actions. We're disappointed the Court chose not hear this case, but we are hopeful the Court will heed Justice Thomas's recommendation and take up the doctrine of qualified immunity in the future."

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