Bourgault v. YudofBourgault v. Yudof
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiffs Motion for Preliminary Injunction, filed January 20, 2004; Defendants’ Response, filed March 31, 2004; and Plaintiffs Reply, filed April 15, 2004. Plaintiff Matt Bourgault (“Bourgault”) seeks a preliminary injunction enjoining Defendants the Chancellor, Vice-Chancellor, and Chairman of the Board of Regents of the University of Texas System; the President, Vice-President of Student Affairs, and Director of Governance and Organizations of the University of Texas at Arlington; and a Sergeant of the University of Texas at Arlington’s police department, from “applying the speech requirements set out in Board of Regents’ Rules and Regulations for the University of Texas System and Campus Policy of the University of Texas at Arlington for off-campus speakers to the individual expression of Matt Bourgault.” (Mot. at 2.) Defendants oppose the preliminary injunction. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Plaintiffs Motion for Preliminary Injunction should be DENIED.
I. BACKGROUND
Bourgault is “a professing Christian and a traveling evangelist for his religious beliefs.” (Pl.’s Br. at 1.) Specifically, Bour-gault 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 2.) 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.)
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
On June 21, 2002, Bourgault’s attorney wrote to Defendant Sorensen, explaining the above described events and requesting permission that Bourgault be allowed to speak on campus. (See Defs.’ App., Exh. A.) Defendant Sorensen forwarded Bour-gault’s attorney’s letter to the Office of General Counsel for the UT System, who replied to Bourgault’s attorney in a letter dated July 3, 2002, that because Bourgault is not a student, faculty member, or staff member of UTA, he cannot engage in speech activities on the UTA campus. (See Defs.’ App., Exh. B.) The letter cited the Board of Regents’ Rules and Regulations Chapter VI, Part One, Subsections 6.1 2 and 6.2, 3 (“Rule 6.1” and “Rule 6.2”). (Id.) 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 4 of the Regents’ Rules and Regulations (“Rule 6.71”). (Id.) Finally, the letter informed Bourgault that if he attempted to engage in speech activities on the UTA campus, the authorities would take “appropriate action in response.” (Id.)
Bourgault filed the instant case on January 20, 2004, almost 18 months after receiving the letter from the Office of General Counsel. Along with his Verified Complaint, Bourgault also filed the instant
II. STANDARD FOR PRELIMINARY INJUNCTION
In the Fifth Circuit, a party is entitled to injunctive relief upon demonstrating: 1) a substantial likelihood of success on the merits of the claim; 2) a substantial threat of irreparable injury for which there is no adequate remedy at law; 3) that the threatened injury to the applicant outweighs any harm that the injunction might cause to the opponent; and 4) that the injunction will not disserve the public interest.
DSC Communications Corp. v. DGI Technologies, Inc.,
III. ANALYSIS
In his Verified Complaint, Bourgault specifically challenges 1) the Board of Regents’ Rules and Regulations of the University of Texas System “as they would act to ban [his] speech on any open area of any campus in the system, including UTA”; 2) the UTA Off-Campus Speakers policy that bans evangelism and witnessing; and 3) the UTA Off-Campus Speakers policy that requires submission of an application five days in advance of when a speaker will be speaking.
{See
Verified Compl. at 11-12.) In his Motion for Preliminary Injunction, Bourgault advances three arguments to support entry of a preliminary injunction: 1) because UTA is a public university, the public open areas on campus are traditional public fora; 2) the regulations employ viewpoint discrimination; and 3) the five day advance notice requirement eliminates spontaneous speech. Brougault contends that these three arguments establish a substantial likelihood that the Regents’ Rules and Regulations and the UTA Off-Campus Speakers policy will be found unconstitu
Defendants contend 1) that Bourgault has no standing to challenge rules and policies regulating students’ speech on campus because even if enforcement of the rules and policies were to be enjoined, Bourgault would still not be allowed to speak on campus; 2) that Bourgault’s challenge to the Off-Campus Speakers policy is moot because the provision restricting evangelizing and witnessing has been repealed; and 3) that Bourgault does not have a substantial likelihood of success on the merits of his challenge to the rules establishing the UTA campus as a limited public forum open only to students, faculty, and staff. The Court will address Bourgault’s and Defendants’ arguments below.
A. Standing
First, the Court must determine whether Bourgault has standing to challenge the Regents’ Rules and Regulations and the Off-Campus Speakers policy.
See United States v. Hays,
1. Rule 6.71
In the instant case, Defendants contend that Bourgault cannot prove that enjoining enforcement of Rule 6.71 would redress his injury. Defendants argue that Rule 6.71 only regulates the use of UT System “property, buildings, and facilities” by “students’ associations, a registered student, faculty or staff organizations.” If it were declared invalid, Defendants argue, Bourgault still would not necessarily be allowed to use UTA’s property, buildings, and facilities because this rule governs the conduct of members of the UTA community and is not directed to the public. The Court agrees.
Rule 6.71 provides that a member of the UTA community cannot “reserve or use property, buildings, or facilities” of the UT System “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.” This rule merely limits who a member of the UTA community may engage for a program or project for which they wish to use UTA property. Even were the rule repealed, Bourgault would still need to obtain student sponsorship to speak on the UTA campus. {See Defs.’ App., Exh. B (quoting Rule 6.71 in support of the proposition that Bourgault cannot speak even with student sponsorship).) Bourgault has not shown that there is a member of the UTA community who would sponsor him, such that enjoining the rule would redress his injury. Bourgault has not shown the third requirement of standing, that the remedy sought would redress the injury complained of, and does not have standing to challenge Rule 6.71. Therefore, the Court will not address Rule 6.71 in this Memorandum Opinion and Order.
Defendants also assert that Bourgault does not have standing to challenge the five day notice requirement in the UTA Off-Campus Speakers policy. The Court agrees. Bourgault has the same problem showing that an injunction of the five day notice requirement would redress his injury of not being allowed to speak on campus. The Court also notes that Bourgault has not shown that the five day notice requirement was a cause of his injury, i.e., not being allowed to speak on campus. Bourgault has offered no allegation that but for the five day notice requirement, he would have been allowed to speak on the UTA campus. Because Bourgault has not alleged that the five day notice requirement was the cause of his injury, or that an injunction would redress his injury, the Court concludes that Bourgault does not have standing to challenge the five day notice requirement in the UTA Off-Campus Speakers policy. The Court need not address the five day notice requirement in this Memorandum Opinion and Order.
3. Former Prohibition on Evangelizing and Witnessing
Next, the Court must determine whether Bourgault can challenge the provision of the UTA Off-Campus Speakers policy which prevented religious speakers from evangelizing or witnessing. Defendants contend that because this provision was repealed before Bourgault filed this lawsuit, and because there is no plan to reim-plement the challenged provision, Bour-gault’s challenge is moot. (See Defs.’ App., Exh. E.) Bourgault argues that because he is asking for monetary damages, the issue is not moot. Also, he argues that Defendants have not sufficiently shown that the challenged provision will not be “reinserted in to [sic] the policy at some later date.” The Court agrees with Defendants that injunctive relief as to Bour-gault’s challenge of the former prohibition on evangelism and witnessing is not appropriate. The Court, however, concludes that the issue is not whether his claim is moot, but rather whether Bourgault has standing to bring the claim in the first place.
“A plaintiff must demonstrate standing separately for each form of relief sought.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc.,
Bourgault does not meet the three requirements for standing as to his claim for injunctive relief, however. Because the prohibition was repealed before he filed suit, an injunction “cannot conceivably remedy any past wrong.”
See Steel Co. v. Citizens for a Better Env’t,
B. Substantial Likelihood of Success on the Merits
As stated above, Bourgault challenges three specific provisions in his Verified Complaint: 1) the Board of Regents’ Rules and Regulations of the University of Texas System “as they would act to ban [his] speech on any open area of any campus in the system, including UTA”, including Rule 6.71; 2) the UTA Off-Campus Speakers policy that bans evangelism and witnessing; and 3) the UTA Off-Campus Speakers policy that requires submission of an application five days in advance of when a speaker will be speaking. (See Verified Compl. at 11-12.)
Because the Court has concluded that Bourgault lacks standing to challenge Rule 6.71 and the two provisions in the Off-Campus Speakers policy on evangelizing and witnessing and the five day notice requirement, the Court need only address Bourgault’s challenge to the Rules and Regulations reserving the UTA campus for speech by members of the UTA community. Two of the arguments Bourgault advances in his Motion for Preliminary Injunction are still relevant: 1) because UTA is a public university, the public open areas on campus are traditional public forums; and 2) the regulations employ viewpoint discrimination. The Court will address these arguments below.
1. Forum Analysis
Bourgault argues that because UTA is a public university, and because it has streets, sidewalks, parks, and pedestrian malls, it is a traditional public forum. Defendants argue that Bourgault can cite no case holding that a public university campus is a traditional public forum, and thus he cannot demonstrate a substantial likelihood of success on the merits.
The “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
Defendants are correct that Bourgault has not cited any case standing for the proposition that a university campus is a traditional public forum. It is true that the Supreme Court has recognized that a public university campus “possesses many of the characteristics of a public forum.”
See Widmar v. Vincent,
The Fifth Circuit has also never held that a public university campus is a traditional public forum. In
Brister v. Faulkner,
Given the Supreme Court’s reasoning in
Widmar,
and the Fifth Circuit’s limited holding in
Brister,
and the fact that no court has found a university’s campus to be a traditional public forum, the Court concludes that Bourgault has not demonstrated a likelihood of success on his argument that the UTA campus is a traditional public forum. This means that the UTA campus must be one of the other types of forums: a designated public forum, a limited public forum, or a non-public forum.
See Chiu,
The UT System Rules do not open up any of its property to the general public.
See
Rule 6.1. It appears that UTA has only opened up its property for the use of members of the UTA community.
See
Rule 6.2 and 6.7. Under the analysis described in
Chiu,
this would make the property at issue in the instant case a limited public forum.
See Chiu,
2. Viewpoint Discrimination
In his Motion for Preliminary Injunction, Bourgault argues that the restriction against evangelizing and witnessing is viewpoint discrimination. While the Court agrees that this appears to be viewpoint discrimination, as discussed above, Bour-gault does not have standing to bring this claim in this motion. In his Reply Brief, Bourgault also argues that the requirement that off-campus speakers be sponsored by student organizations amounts to viewpoint discrimination. (See Reply at-17-19.) The Court disagrees.
Bourgault’s argument is premised on his claim that if a student group disagrees with a speaker’s viewpoint, they will not sponsor him. Bourgault’s premise does not rise to impermissible viewpoint discrimination. Bourgault has not offered any evidence, or even an allegation, that the student sponsorship requirement is facial viewpoint discrimination. The Rules and Regulations allow registered student groups and other members of the UTA community the use of UTA buildings and property for speech purposes. The condition of being a registered student group or a member of the UTA community has no viewpoint associated with it. Therefore, the requirement that a speaker be a member of the UTA community cannot be facial viewpoint discrimination.
Additionally, Bourgault has offered no evidence or allegation that UTA discriminates based on viewpoint when allowing student groups to register or in permitting people to become members of the UTA community. Bourgault’s argument implies that he would not be able to secure student sponsorship because no student organization would agree with his views. Even if this were true, there is no evidence or allegation that UTA does not permit student groups that hold views similar to Bourgault’s views. There is no evidence or allegation that student organizations are only permitted by UTA if they hold certain beliefs, or that students would be prohibited from forming organizations because of
Bourgault offers no evidence to suggest that the limitation requiring speakers to be members of the UTA community is viewpoint discrimination. The Court concludes that Bourgault does not have a likelihood of success on his argument that the restriction limiting the campus forum to members of the UTA community is impermissible viewpoint discrimination.
3. Reasonable Restriction
The Court must next determine whether the restriction limiting the campus forum to members of the UTA community is reasonable in light of the purpose served by the forum. Bourgault makes no argument, except for his argument that the UTA campus is a traditional public forum, that limiting the UTA campus to UTA students is unreasonable given the fact that it is a university. The Court concludes that Bourgault does not have a likelihood of success on any argument that the restriction of the UTA campus to members of the UTA community is unreasonable in light of the purpose of the forum.
IV. CONCLUSION
The Court concludes that Bourgault has not demonstrated a likelihood of success on the merits of his argument that prohibiting him from speaking on campus is unconstitutional pursuant to the First Amendment’s free speech guarantee. Accordingly, Bourgault has failed to prove the first requirement necessary for the Court to enter a preliminary injunction. The Court need not evaluate the other requirements for entry of a preliminary injunction.
For the reasons stated above, Plaintiffs Motion for Preliminary Injunction is DENIED.
This case remains set for non-jury trial on the Court’s December 2004 docket.
SO ORDERED.
Notes
. The parties are DIRECTED to follow Local Rule 7.1(i) regarding appendices in any future submissions to the Court.
. 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.
. On April 22, 2002, UTA's Off-Campus Speakers policy read as follows:
One of the most common types of events sponsored by student organizations involves an off-campus speaker. This individual is either used to address group membership or the campus-at-large.
In both instances, complete a “Campus Event Information Sheet” in the Student Governance and Organizations Office at least five (5) class days prior to the event. Be sure to include as much information about the qualifications of speaker as possible. After the form is approved, take it to the person in charge of the facility you wish to reserve and complete the reservation. Some important points to remember:
1.Registered student organizations may sponsor a specific candidate for public office. The speaker may not be co-sponsored with an off-campus interest and the audience must be limited to members of the organization or their personally invited guests.
2. Religious speakers are not to engage in evangelism, witnessing, or other religious activities. Check for mall usage with the Director of Student Governance and Organizations.
3. The speaker represents his/her own views and not those of the University.
Before Bourgault filed the instant case, UTA changed this policy. Number 2 now reads, “2. No person shall be permitted to engage in speech, either orally or in writing, which is directed to incite or produce imminent lawless action and is likely to result in such action.”
. As recognized in
Chiu,
"there is some confusion over the terminology used to describe” the middle category (or categories) between traditional and nonpublic forums.
See Chiu,