973 F.3d 868
8th Cir.2020Background
- Ashlyn Hoggard, an Arkansas State student, set up a recruitment table with a Turning Point USA representative on the Union Patio; university administrators ordered her to take down the table because the Patio was reserved for registered student organizations and departments.
- The University’s System and Campus Freedom of Expression policies create designated Free Expression Areas and assert the campus is not a public forum; an unwritten Tabling Policy limited Union Patio tabling to registered student organizations and departments.
- Hoggard and Turning Point sued under 42 U.S.C. § 1983 seeking injunctive relief and damages for alleged First Amendment and due process violations; while litigation was pending Arkansas enacted the FORUM Act, which effectively made outdoor campus areas public forums.
- The district court granted summary judgment to defendants, concluding injunctive relief was moot under the FORUM Act and that defendants were entitled to qualified immunity on damages claims; Hoggard appealed the qualified-immunity ruling.
- The Eighth Circuit held the Tabling Policy, as applied to Hoggard, violated the First Amendment (a limited designated public forum where status-based restrictions must be reasonable), but affirmed summary judgment because the right was not clearly established and defendants were entitled to qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restricting Union Patio tabling to registered student organizations violated the First Amendment in a limited designated public forum | Hoggard: the unwritten Tabling Policy unreasonably and viewpoint-neutrally excluded individual students and unregistered groups from a forum used for student expression | University: the Patio is a limited forum; restricting access to registered organizations furthers a legitimate "living-room" atmosphere and administrative/safety interests | Court: The restriction, as applied to Hoggard, was unconstitutional — the status-based distinction was not reasonable given the offered justification |
| Whether available alternatives (approaching students, Free Expression Areas) cured the restriction’s constitutional defects or created an unconstitutional prior restraint | Hoggard: alternatives (talking to individuals or using Free Expression Areas with prior permission) were insufficient or amounted to presumptive prior restraints | University: alternatives exist (direct outreach, Free Expression Areas) so speech was not impermissibly restricted | Court: Alternatives were inadequate — direct outreach is not equivalent and requiring prior permission for Free Expression Areas resembles a prior restraint in this student context |
| Whether defendants are entitled to qualified immunity because the right was not clearly established | Hoggard: defendants should have known the Tabling Policy unlawfully discriminated against individuals vs. registered groups | University: precedent did not clearly prohibit the policy; officials reasonably could rely on case law like Bowman | Held: Right was not "clearly established" at the time; reasonable officials could have believed the policy permissible, so qualified immunity applies |
| Whether individual defendants were sufficiently personally involved to be liable under § 1983 | Hoggard: higher-level administrators and trustees can be liable for adopting/enforcing policies that led to the denial | Defendants: some administrators had no individual involvement; liability requires proof of personal action/causation | Court: Because qualified immunity resolves the appeal, the panel did not need to decide the personal-involvement issue; concurring judge would have disposed of the appeal on that ground |
Key Cases Cited
- Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity standard)
- Ashcroft v. ACLU, 535 U.S. 564 (First Amendment limits; speech not absolute)
- United States v. Grace, 461 U.S. 171 (government property and forum analysis)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (forum doctrine; designated forums)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (status-based distinctions in limited forums tested for reasonableness)
- Widmar v. Vincent, 454 U.S. 263 (deference to university judgment but constitutional review of speech restrictions)
- Healy v. James, 408 U.S. 169 (First Amendment associational rights of students)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity prongs and judicial discretion)
- Reichle v. Howards, 566 U.S. 658 (clearly established standard)
- Ashcroft v. al-Kidd, 563 U.S. 731 (need for controlling precedent or robust consensus)
- Dillard v. O'Kelley, 961 F.3d 1048 (Eighth Circuit qualified-immunity framework)
- Bowman v. White, 444 F.3d 967 (campus forum case relied on by parties)
- Ball v. City of Lincoln, 870 F.3d 722 (forum characterization and limits on speech on property)
- Powell v. Noble, 798 F.3d 690 (reasonableness inquiry for forum restrictions)
- Christian Legal Soc. Chapter v. Martinez, 561 U.S. 661 (limits of deference to university policy-making)