Significant Education Law Developments, 2006-2007 by zqw77719


									      American Bar Association  

 Significant Education Law 
 Developments, 2006‐2007  

                  Platinum Sponsor
George Washington University School of Law
                   Gold Sponsors 
        Disabled American Veterans
           Foley & Lardner LLP
             Sidley Austin LLP
 The Floersheimer Center for Constitutional
   Democracy at Cardozo School of Law
      Thursday, October 25, 2007 ◊2:00 pm—3:30 pm 
                The National Press Club 
                   Washington, D.C.
                                            Panelist Biographies

Anurima Bhargava

Anurima Bhargava is Director of the Education Practice at the NAACP Legal Defense & Educational Fund
(LDF) where she is actively engaged in litigation and advocacy to expand educational access and
opportunity for students of color. Ms. Bhargava has been deeply involved in the litigation, advocacy and
public education efforts around the two voluntary integration cases - Parents Involved in Community
Schools v. Seattle School District and Meredith v. Jefferson County Board of Education - recently decided
by the Supreme Court and is co-lead counsel representing parent intervenors in three Proposition 209
challenges to voluntary integration efforts in California. She also advises institutions of higher education on
providing equal access and opportunities to all students through their admissions, financial aid and
scholarship, and outreach programs. Prior to joining LDF, Anurima worked as a staff attorney at the New
York City Department of Education and clerked in the U.S. District Court for the Southern District of New
York. She earned her law degree from Columbia Law School and graduated magna cum laude from
Harvard College.

Nate Kellum

Nate Kellum is Senior Counsel for the Alliance Defense Fund and director of their Regional Service Center
located in Memphis, Tennessee. He obtained his J.D. from the University of Mississippi in 1988. He was
assistant editor of Mississippi Law Journal and graduated cum laude. In his career, Nate has served as lead
counsel in many landmark cases regarding religious speech on public property, including Brown v. Polk
County, 61 F. 3d 650 (8th Cir. 1995) (en banc ); Douglas v. Brownell, 88 F. 3d 1511 (8th Cir. 1996); Hood
v. Keller, 341 F. 3d 593 (6th Cir. 2003); Parks v Finan, 385 F 3d 694 (6th Cir. 2004); Parks v. City of
Columbus, 395 F. 3d 643 (6th Cir. 2005); Bowman v. White, 444 F. 3d 967 (8th Cir. 2006); Deegan v.
City of Ithaca, 444 F. 3d 135 (2nd Cir. 2006); and Gilles v. Blanchard, 477 F. 3d 466 (7th Cir. 2007). He
also had an article entitled “If It Looks Like A Duck . . . . Traditional Public Forum Status of Open Areas
On Public University Campuses” published in The Hastings Constitutional Law Quarterly (33 Hastings
Const. L.Q. 1), the country's oldest law journal devoted exclusively to constitutional law. Nate has
appeared on many television and radio shows, including Hannity and Colmes, Heartland, Big Story and
Tony Snow Show.

Charles T. Kotuby Jr.

Charles is an associate at the law firm of Jones Day, and focuses his practice on trial and appellate litigation
of federal statutory issues. He has co-authored briefs in numerous cases before the United States Supreme
Court, including two in the field of federal education law. He represented various autism organizations in
an amicus brief supporting Petitioners in Weast v. Schaffer, 126 S. Ct. 528 (2005), and -- most recently --
represented the U.S. Conference of Mayors, et al., in an amicus brief supporting Petitioner in Bd. of Educ.
v. Tom F., No. 06-637 (2007). Before joining Jones Day, Charles was a law clerk to the Honorable Joseph
F. Weis Jr., United States Court of Appeals for the Third Circuit. Charles is a graduate of the University of
Pittsburgh (1997) and the University of Pittsburgh School of Law

Caroline B. Newcombe

Caroline is an adjunct Professor of Law at Southwestern Law School where she teaches Administrative
Law and California Property. Before joining Southwestern , Caroline was associated with the firm of Lord,
Bissell & Brook. She wrote numerous briefs and appeals in the field of aviation defense and commercial
liability insurance coverage. She is the author of The Impaired Property Exclusion as well as Reinsurance:
What it is. Caroline is a graduate of the University of Virginia School of Law. She also has an LL.M (Law
and Government) from American University Law School. At present, she is a candidate for an S.J.D.
degree at UCLA Law School. Caroline is the vice-chair of the Education Committee of the Administrative
Law section of the American Bar Association.
Philip H. Rosenfelt

Philip H. Rosenfelt is the Deputy General Counsel for Program Service in the Office of the General
Counsel (OGC) at the U.S. Department of Education, and oversees legal services to the Department
relating to Federal programs that assist elementary and secondary, vocational and adult education, special
education, rehabilitative services, the Institute of Education Sciences, educational equity, and civil rights
issues, as well as legal services on ethics provisions. Since 1971, he held various posts in OGC at the
Department of Education and the Department of Health, Education, and Welfare, and has received various
awards for his Federal service. He was recently appointed by the Secretary to be the Department's
representative to the U.S. Holocaust Memorial Council. Mr. Rosenfelt was born in Paterson, NJ, and
received his B.S. degree from the University of Pennsylvania-Wharton School, his J.D. degree from
Columbia University Law School, and his L.L.M. from New York University. He is a member of the New
York State Bar and the Supreme Court Bar. Mr. Rosenfelt has worked on entertainment newspapers, and
taught courses in education law and administrative law at Catholic University. He is married to Zell, an
English teacher, and has two daughters, Natalie, an attorney in the Department of Justice, and Marjie, a law
student. Mr. Rosenfelt's hobbies include literature, music, sports, technology, comedy, art, and current

Kent D. Talbert

Kent D. Talbert is the U.S. Department of Education's General Counsel. He was nominated by President
Bush on September 27, 2005, and confirmed by the United States Senate on May 19, 2006. As General
Counsel, Mr. Talbert serves as the principal adviser to the Secretary of Education on all legal matters
affecting the Department, including reauthorization of the No Child Left Behind Act and the Higher
Education Act. Prior to his confirmation, he served as the Department's Deputy General Counsel for the
Division of Business and Administrative Law and the Division of Legislative Counsel. Before coming to
the Department, Mr. Talbert served as Education Policy Counsel for the Committee on Education and the
Workforce in the United States House of Representatives, as well as on the staff of the Committee on
Health, Education, Labor, and Pensions in the United States Senate, and the staff of former U.S. Senator
Strom Thurmond (R-SC). He is a member of the Supreme Court Bar, the South Carolina Bar, and has
practiced law in Columbia, SC. Mr. Talbert is a graduate of Erskine College and the University of South
Carolina School of Law.

Jonathan A. Vogel

Mr. Vogel is a member of the Sonnenschein Nath & Rosenthal LLP Litigation Practice in Charlotte and
Washington, D.C., where he works in the area of government litigation and investigations, as well as
regulatory compliance. Having previously served at the U.S. Department of Education as the deputy
general counsel for higher education, he focuses on representation of student loan companies and
institutions of higher education. Mr. Vogel joined Sonnenschein from the U.S. Department of Justice
where, as an assistant U.S. attorney in the Western District of North Carolina, he served as identity theft
coordinator and prosecuted white-collar and financial crime cases, including cases involving bank fraud,
identity theft, health care fraud, obstruction of justice, environmental crime, wire fraud and mail
fraud. Charlotte is commonly regarded as the nation’s largest banking city after New York, so Mr. Vogel’s
practice also focuses on representation of the banking industry in the area of information security and
privacy. During his tenure as a federal prosecutor with the U.S. Department of Justice, Mr. Vogel
investigated, prosecuted and tried a number of cases in U.S. District Court and briefed several cases before
the U.S. Court of Appeals for the Fourth Circuit. Mr. Vogel’s accomplishments as a federal prosecutor
include bringing the first indictment for aggravated identity theft in the Western District of North Carolina
and obtaining convictions for each defendant charged as part of an identity theft ring; trying and convicting
on all 18 fraud and identity theft charges presented to the jury, including eight charges of aggravated
identity theft, a bank employee accused of defrauding the bank and unlawfully using the identity of a
customer whom he was entrusted to help; in a single year, obtaining three sentences of 10 or more years of
imprisonment for repeat fraud offenders; obtaining two guilty pleas to felony charges under the Clean
Water Act; and winning an appeal at the Fourth Circuit in an illegal immigration case that presented an
issue of first impression.
As deputy general counsel at the U.S. Department of Education, Mr. Vogel oversaw about two dozen
attorneys and support staff in the areas of higher education and regulatory law. In that position, Mr. Vogel
provided legal counsel to the Department’s senior policy makers on the student loan programs. He also
made recommendations to the U.S. Department of Justice regarding the Education Department’s position
on higher education cases pending in federal court, including the growing number of False Claims Act qui
tam actions being filed against institutions of higher education, particularly career colleges. Prior to his
tenure at the Education Department, Mr. Vogel served as counsel to the assistant attorney general of the
Civil Rights Division at the U.S. Department of Justice, providing advice on civil rights litigation and
policy and serving as the Justice Department’s representative to a White House working group on Arab
American public policy concerns in the wake of September 11. He also served as counsel to the Judiciary
Committee of the U.S. House of Representatives, where he assisted the committee with its investigations
and oversight activities. Mr. Vogel began his legal career as a litigation associate at King & Spalding LLP
in Atlanta. Emory University School of Law, J.D., 1995; University of Vermont, B.A., 1992
                                    BOWMAN v. WHITE                                          967
                                Cite as 444 F.3d 967 (8th Cir. 2006)

2001, were generally positive and did not          District Court for the Western District of
mention his attendance problem—does not            Arkansas, Jimm L. Hendren, J., dismissed
support this inference. The evaluations            action. Preacher appealed.
are merely silent on Schierhoff’s absentee-        Holdings: The Court of Appeals, Melloy,
ism, and GSK’s published policy clearly            Circuit Judge, held that:
indicated that ‘‘[e]xcessive absences or tar-
                                                   (1) outdoor common areas clearly within
diness’’ were matters that ‘‘may call for
                                                       the boundaries of the campus of state
immediate discharge.’’ (Appellant’s App.
                                                       university were ‘‘designated public
at 96–97).
  The judgment of the district court is            (2) state had significant interests in pro-
affirmed.                                              tecting the educational experience of
                                                       the students in furtherance of state

                                                       university’s educational mission, ensur-
                                                       ing students’ safety, and fostering di-
                                                   (3) requirement that a non-university enti-
                                                       ty obtain a permit before using com-
                                                       mon outdoor space was a ‘‘prior re-
 Gary BOWMAN, Plaintiff—Appellant,                     straint on speech’’;
                      v.                           (4) university’s requirement that a non-
John A. WHITE, in his official capacity                university entity obtain a permit before
  as Chancellor of the University of Ar-               using outdoor common area did not
  kansas; Donald O. Pederson, in his                   violate free speech guarantees;
  official capacity as Vice Chancellor             (5) university’s five-day cap per speaker
  for Finance Administration for the                   per semester violated First Amend-
  University of Arkansas; Larry L.                     ment free speech guarantees;
  Slammons, in his official capacity as            (6) three-day advance notice requirement
  Director of the University of Arkansas               did not violate free speech guarantees;
  Police Department, Defendants—Ap-                    and
  pellees.                                         (7) ‘‘dead days’’ ban on use of outdoor
               No. 04–2299.                            common areas during certain time pe-
                                                       riods did not violate free speech guar-
     United States Court of Appeals,                   antees.
             Eighth Circuit.
                                                   Affirmed in part, and reversed in part.
        Submitted: Jan. 14, 2005.                  Bye, Circuit Judge, filed concurring opin-
           Filed: April 14, 2006.                  ion.
Background: Street preacher brought
§ 1983 action against state university offi-       1. Federal Courts O776
cials, seeking damages and injunctive re-               Court of Appeals reviews de novo the
lief, and alleging that the university’s poli-     district court’s conclusions of law.
cy restricting the use of its facilities and
space by non-university entities unconsti-         2. Constitutional Law O90.1(1.4)
tutionally abridges his First Amendment                State colleges and universities are not
right to free speech. The United States            enclaves immune from the sweep of the
968                    444 FEDERAL REPORTER, 3d SERIES

First Amendment’s free speech protection.     9. Constitutional Law O90.1(4)
U.S.C.A. Const.Amend. 1.                           A ‘‘traditional public forum,’’ in the
                                              context of free speech analysis, is a type of
3. Constitutional Law O82(9)
                                              property that has the physical characteris-
    First Amendment does not guarantee        tics of a public thoroughfare, the objective
access to property simply because it is       use and purpose of open public access or
owned or controlled by the government.        some other objective use and purpose in-
U.S.C.A. Const.Amend. 1.                      herently compatible with expressive con-
                                              duct, and historically and traditionally has
4. Constitutional Law O82(9)
                                              been used for expressive conduct.
     The existence of a First Amendment       U.S.C.A. Const.Amend. 1.
right of access to public property and the          See publication Words and Phras-
standard by which limitations upon such a         es for other judicial constructions
right must be evaluated differ depending          and definitions.
on the character of the property at issue.
                                              10. Constitutional Law O90.1(4)
U.S.C.A. Const.Amend. 1.
                                                    Public places historically associated
5. Constitutional Law O90.1(4)                with the free exercise of expressive activi-
    The forum analysis applicable to free     ties, such as streets, sidewalks, and parks,
speech claims initially requires a court to   are considered, without more, to be public
determine whether the subject property is     forums, for purpose of analyzing a free
a traditional public forum, a designated      speech claim. U.S.C.A. Const.Amend. 1.
public forum, or a nonpublic forum.           11. Constitutional Law O90.1(4)
U.S.C.A. Const.Amend. 1.                          A content-based restriction on speech
6. Constitutional Law O90.1(4)                within a traditional public forum must be
                                              necessary to serve a compelling govern-
     Pursuant to the forum analysis for a
                                              ment interest and be narrowly drawn to
free speech claim, once a court makes a
                                              achieve that interest. U.S.C.A. Const.
determination on the nature of the forum,
                                              Amend. 1.
it then applies the appropriate standard of
scrutiny to decide whether a restriction on   12. Constitutional Law O90.1(4)
speech passes constitutional muster.               A restriction on speech in a traditional
U.S.C.A. Const.Amend. 1.                      public forum that is not content-based and
                                              that restricts the time, place or manner in
7. Constitutional Law O90.1(4)
                                              which speech may be communicated is sub-
     The extent to which access to, and the   jected to a different, less restrictive stan-
character of speech upon, government          dard. U.S.C.A. Const.Amend. 1.
property may be limited under the First
Amendment depends upon the nature of          13. Constitutional Law O90.1(4)
the forum in which the speech takes place.         The government may enforce a rea-
U.S.C.A. Const.Amend. 1.                      sonable, content-neutral time, place and
                                              manner restriction in a traditional public
8. Constitutional Law O90.1(4)                forum if the restriction is narrowly tailored
     The government’s ability to restrict     to serve a significant government interest
speech is most circumscribed in a tradi-      and leaves open ample alternative channels
tional public forum. U.S.C.A. Const.          of communication.          U.S.C.A. Const.
Amend. 1.                                     Amend. 1.
                                  BOWMAN v. WHITE                                          969
                               Cite as 444 F.3d 967 (8th Cir. 2006)

14. Constitutional Law O90.1(4)                   particular type of speech or speaker.
     For purpose of analyzing a First             U.S.C.A. Const.Amend. 1.
Amendment free speech claim, a ‘‘desig-                   See publication Words and Phras-
                                                        es for other judicial constructions
nated public forum’’ is a nonpublic forum
                                                        and definitions.
the government intentionally opens to ex-
pressive activity for a limited purpose such      19. Constitutional Law O90.1(4)
as use by certain groups or use for discus-            In an unlimited designated public fo-
sion of certain subjects. U.S.C.A. Const.         rum, the government may enforce a con-
Amend. 1.                                         tent-neutral time, place, and manner re-
      See publication Words and Phras-            striction on speech only if the restriction is
    es for other judicial constructions           necessary to serve a significant govern-
    and definitions.
                                                  ment interest and is narrowly drawn to
15. Constitutional Law O90.1(4)                   achieve that interest. U.S.C.A. Const.
                                                  Amend. 1.
     The government does not create a
designated public forum, for free speech          20. Constitutional Law O90.1(4)
purposes, by inaction or by permitting lim-            In a limited designated public forum,
ited discourse, but only by intentionally         restrictions on speech not within the type
opening a nontraditional public forum for         of expression allowed in a limited public
public discourse. U.S.C.A. Const.Amend.           forum must only be reasonable and view-
1.                                                point neutral. U.S.C.A. Const.Amend. 1.

16. Constitutional Law O90.1(4)                   21. Constitutional Law O90.1(4)
    For the purpose of analyzing a First               The government can most freely re-
Amendment free speech claim, a designat-          strict speech in a nonpublic forum.
ed public forum can be classified as either       U.S.C.A. Const.Amend. 1.
of a limited or unlimited character.
                                                  22. Constitutional Law O90.1(4)
U.S.C.A. Const.Amend. 1.
                                                       For purpose of a free speech analysis,
17. Constitutional Law O90.1(4)                   a ‘‘nonpublic forum’’ is government proper-
     For purpose of the First Amendment           ty which is not classified a traditional pub-
free speech analysis, a ‘‘limited public fo-      lic forum or designated public forum.
rum’’ is a subset of the designated public        U.S.C.A. Const.Amend. 1.
forum that arises where the government                    See publication Words and Phras-
                                                        es for other judicial constructions
opens a non-public forum but limits the                 and definitions.
expressive activity to certain kinds of
speakers or to the discussion of certain          23. Constitutional Law O90.1(4)
subjects. U.S.C.A. Const.Amend. 1.                     In a nonpublic forum, the government
      See publication Words and Phras-            may restrict speech as long as the restric-
    es for other judicial constructions           tions are reasonable and are not an effort
    and definitions.                              to suppress expression merely because the
                                                  public officials oppose a speaker’s view.
18. Constitutional Law O90.1(4)
                                                  U.S.C.A. Const.Amend. 1.
      For First Amendment purposes, an
‘‘unlimited designated public forum’’ is a        24. Constitutional Law O90.1(4)
forum designated for expressive conduct               When analyzing how to classify a fo-
by the government but not limited to a            rum, for purpose of a free speech claim, a
970                     444 FEDERAL REPORTER, 3d SERIES

court must ask two questions: first, wheth-     28. Constitutional Law O90.1(4)
er the space is a traditional public forum, a       In determining the type of forum, for
designated public forum, or a nonpublic         purpose of analyzing a free speech claim, a
forum, and second, if the space is a desig-     court must acknowledge the presence of
nated public forum, whether the forum is        any special characteristics regarding the
limited or unlimited in its character.          environment in which the forum exists.
U.S.C.A. Const.Amend. 1.                        U.S.C.A. Const.Amend. 1.

25. Constitutional Law O90.1(1.4)               29. Colleges and Universities O6(5)
     A modern state university contains a           Constitutional Law O90.1(1.4)
variety of fora, for purpose of analyzing a          State had significant interests in pro-
free speech claim. U.S.C.A. Const.Amend.        tecting the educational experience of the
1.                                              students in furtherance of state universi-
                                                ty’s educational mission, ensuring students’
26. Colleges and Universities O6(5)             safety, and fostering diversity, for purpose
    Constitutional Law O90.1(1.4)               of street preacher’s § 1983 claim challeng-
                                                ing university’s policy restricting use of
     Outdoor common areas, including            outdoor common areas by non-university
sidewalks and sitting areas, clearly within     entities as violative of free speech; educat-
the boundaries of the campus of state uni-      ed electorate was essential to vitality of
versity were ‘‘unlimited designated public      democracy, safety was fundamental human
fora,’’ for purpose of street preacher’s        need, and diversity was necessary to meet
§ 1983 claim, challenging the university’s      educational needs.          U.S.C.A. Const.
policy restricting use of those areas as        Amend. 1; 42 U.S.C.A. § 1983.
violative of his free speech rights; purpose
of university was not to provide forum for      30. Constitutional Law O90(3)
all persons to talk about all topics at all         A regulation is ‘‘narrowly tailored,’’
times, but rather to support education, the     for First Amendment free speech pur-
university opened up the common areas to        poses, when it furthers a significant gov-
both university entities and non-university     ernment interest that would be achieved
entities as places of expression, and there     less effectively without the regulation.
was no showing that the university intend-      U.S.C.A. Const.Amend. 1.
ed to limit the use of the common areas to            See publication Words and Phras-
a particular type of speech or speaker.             es for other judicial constructions
                                                    and definitions.
U.S.C.A. Const.Amend. 1; 42 U.S.C.A.
§ 1983.                                         31. Colleges and Universities O6(5)
                                                    Constitutional Law O90.1(1.4)
27. Constitutional Law O90.1(4)
                                                     State university’s requirement that a
     In determining the type of forum, for
                                                non-university entity obtain a permit be-
purpose of analyzing a free speech claim, a
                                                fore using outdoor space was a ‘‘prior re-
court must examine the traditional use of       straint on speech’’ against which there is a
the property, the objective use and pur-        heavy presumption of unconstitutionality.
poses of the space, and the government          U.S.C.A. Const.Amend. 1.
intent and policy with respect to the prop-
                                                      See publication Words and Phras-
erty, not merely its physical characteristics       es for other judicial constructions
and location. U.S.C.A. Const.Amend. 1.              and definitions.
                                   BOWMAN v. WHITE                                       971
                                Cite as 444 F.3d 967 (8th Cir. 2006)

32. Constitutional Law O90.1(4)                    35. Colleges and Universities O6(5)
     Pursuant to the First Amendment’s                   Constitutional Law O90.1(1.4)
free speech protection, a permit require-                State university’s requirement that a
ment may only be imposed in an unlimited           non-university entity give the university
designated public forum, if it does not            three-days’ advance notice before using
delegate overly broad licensing discretion         outdoor common areas designated as pub-
to a government official, is content-neutral,      lic forum did not violate First Amendment
is narrowly tailored to significant govern-        free speech guarantees; requirement was
mental interests, and leaves ample alterna-        narrowly-tailored to meet university’s le-
tive channels for communication. U.S.C.A.          gitimate interests in safety and crowd con-
Const.Amend. 1.                                    trol. U.S.C.A. Const.Amend. 1.
33. Colleges and Universities O6(5)
                                                   36. Colleges and Universities O6(5)
     Constitutional Law O90.1(1.4)
                                                         Constitutional Law O90.1(1.4)
     State university’s requirement that a
                                                       State university’s ‘‘dead days’’ ban on
non-university entity obtain a permit be-
                                                   use of outdoor common areas designated
fore using outdoor common areas designat-
                                                   as public forum by non-university entities
ed as public forum did not violate First
                                                   during certain time periods, which includ-
Amendment free speech guarantees; poli-
                                                   ed final exam periods and other official
cy did not delegate overly broad discretion
                                                   study times, did not violate First Amend-
to university officials, it did not allow the
                                                   ment free speech guarantees; ban did not
denial or revocation of permits on the basis
                                                   favor particular viewpoint or type of ex-
of content, it applied to all non-university
                                                   pression, and it was narrowly-tailored to
entities, it granted the university the right
                                                   meet university’s educational goals.
to deny permit only for limited reasons,
                                                   U.S.C.A. Const.Amend. 1.
such as interference with educational activ-
ities and campus safety, and permit re-
quirement was narrowly-tailored to univer-
sity’s significant public safety interest, as
permit was necessary to ensure crowd con-            Counsel who presented argument on be-
trol. U.S.C.A. Const.Amend. 1.                     half of the appellant was Nathan W. Kel-
34. Colleges and Universities O6(5)                lum, Memphis, TN.
     Constitutional Law O90.1(1.4)                   Counsel who presented argument on be-
     State university’s imposition of five-        half of the appellee was William Reid Kin-
day cap per speaker per semester on days           caid, University of Arkansas, Fayetteville,
in which a speaker could speak in outdoor          AR.
common areas designated as public fora
violated First Amendment free speech                Before BYE, MELLOY, and
guarantees; the five-day cap was not suffi-        COLLOTON, Circuit Judges.
ciently narrowly drawn to achieve universi-
ty’s legitimate interest in fostering diversi-        MELLOY, Circuit Judge.
ty of viewpoints, as policy allowed space to         Plaintiff–Appellant Gary Bowman filed
go unused by anyone at times where only            this civil rights lawsuit pursuant to 42
entity seeking permit to speak had already         U.S.C. § 1983 against Defendants–Appel-
met five-day cap. U.S.C.A. Const.Amend.            lees John A. White, Donald O. Pederson,
1.                                                 and Larry L. Slammons as officials repre-
972                            444 FEDERAL REPORTER, 3d SERIES

senting the University of Arkansas at Fay-            number of students that can be found in
etteville (collectively hereinafter known as          outdoor areas.
the ‘‘University’’). Bowman alleges that                 The University is the flagship campus of
the University’s policy regarding the use             the University of Arkansas System. It
of its facilities and space, which contains           has an enrollment of more than 16,000
restrictions on use by non-University enti-           students. In an attempt to regulate an
ties, unconstitutionally abridges his right           ever-increasing demand on the use of its
to free speech. Following a plenary hear-             facilities, the University enacted Fayette-
ing on the merits of Bowman’s request for             ville Policies and Procedures 708.0, entitled
injunctive relief, the district court dis-            ‘‘Use of University Facilities and Outdoor
missed his complaint with prejudice. The              Space’’ (the ‘‘Policy’’). The Policy compre-
district court found that the University’s            hensively governs the use of University
campus was a nonpublic forum and that all             outdoor space.1 It contains guidelines and
the challenged restrictions on speech were            procedures for space allocation and reser-
reasonable. Bowman now brings this                    vations. The Policy applies to all areas
timely appeal.                                        within the University’s direct control, in-
                                                      cluding its streets, sidewalks, and parks.
                                                         The Policy distinguishes between Uni-
   Gary Bowman is a professing Christian              versity Entities and Non–University Enti-
who engages in street preaching about his             ties. Under the Policy, Bowman is classi-
religious beliefs and convictions as a tenet          fied as a Non–University Entity.2 The
of his faith. His message typically con-              Policy places a five-day cap per semester
cerns sin, repentance and a final judg-               per entity on the use of facilities and out-
ment. He states that he shares his mes-               door space by Non–University Entities.
sage in the hope of securing salvation for            In addition to the five-day cap, the Policy
his audience. He employs various means                requires Non–University Entities to make
of communication, including the use of                reservations in advance of their use of a
signs, public speaking, literature distribu-          space. A reservation allows a Non–Uni-
tion, symbolic speech, and one-on-one con-            versity Entity to use the outdoor space for
versation.                                            one eight-hour day. A reservation is re-
  Bowman particularly wants to share his              quired regardless of the use that will be
religious message with college students               made of the space, whether that use be
and others found at public universities be-           speaking, carrying signs, handing out liter-
cause of what he deems to be a moral                  ature, or sitting silently. The Policy does
obligation. To this end, he preaches at               not, however, regulate one-on-one conver-
many college campuses, including the Uni-             sations. The Policy also imposes a three-
versity of Arkansas at Fayetteville. Bow-             business-day advance notice requirement
man considers the University a uniquely               for the use of space by Non–University
suitable place to communicate his message             Entities. The Policy prohibits a Non–Uni-
because of its close proximity to his resi-           versity Entity’s use of space from interfer-
dence in Oklahoma and the significant                 ing with the educational mission of the

1.     Use of indoor space is governed by individu-   2.     It should be noted, however, that on one
     al use policies which are not at issue in this        occasion Bowman was able to obtain spon-
     case.                                                 sorship from a student organization which
                                                           allowed him to reserve space as a University
                                  BOWMAN v. WHITE                                         973
                               Cite as 444 F.3d 967 (8th Cir. 2006)

University and allows the University to           Bowman sometimes drew crowds as large
cancel or modify a space reservation in the       as 200 people.
event that a use does interfere. The Poli-           In the spring semester of 2001, the Uni-
cy further prohibits the use of space by          versity denied Bowman blanket permission
Non–University Entities during so called          to speak. As a result, Bowman submitted
‘‘dead days,’’ which consist of one quiet         individual requests for permits to speak on
study day per semester, all final exam            selected days. By letter, the University
periods, and dates of commencement activ-         advised Bowman that it would only consid-
ities.                                            er up to three separate space reservation
  In the fall of 1998, Bowman obtained            forms at any one time. The letter further
permits to appear twice on campus for             indicated that the campus speech policies
speaking purposes. Bowman returned to             ‘‘are currently under review and are likely
the University in the fall of 2000, at which      to be revised in the future.’’ That semes-
time he complained to University officials        ter, Bowman was denied permission to
that the permit requirement was imposing          speak on the University’s dead days.
a significant restraint on his speech. Ac-           For the next fall, Bowman planned a
cording to Bowman, it was more difficult          series of presentations entitled ‘‘Ten Com-
for him to plan the days he wished to             mandments,’’ which was to be part of a
speak in advance because he could not             larger series entitled ‘‘Forty Things Every
determine with any certainty his future           Student Needs to Know.’’ During each
work schedule or whether a noteworthy             campus visit, he anticipated covering one
event would prompt him to want to speak           Commandment and one ‘‘Thing Every Stu-
on a certain day.                                 dent Needs to Know.’’ Bowman applied for
   To alleviate these concerns, the Univer-       individual permits to cover each of the first
sity granted Bowman blanket permission            six Commandments.
to appear on campus and communicate his              In the meantime, the University formal-
message during the fall semester. With            ly revised the Policy to its current form.
the blanket permission in place, Bowman           By letter dated August 21, 2001, the Uni-
spoke approximately twenty times in the           versity informed Bowman of the revisions
fall of 2000. Despite having blanket per-         and approved, in part, his request for use
mission to speak on campus, Bowman dis-           of the grounds by granting him three days
covered he needed a permit for any other          in which to present his message. Bow-
form of expression. Bowman was not per-           man, in a letter outlining his concerns
mitted to hand out literature, use signs, or      regarding the Policy, subsequently re-
engage in symbolic protests without first         quested an additional seven days. The
obtaining a permit.                               University, citing its new five-day cap, de-
   Bowman often used inflammatory lan-            nied Bowman a permit for the additional
guage and tactics in his presentations, the       seven days. Bowman resubmitted his per-
nature of which were considered highly            mit application, requesting an additional
offensive by many students. During the            three days, for a total of six days. The
fall semester of 2000, several students and       University granted him permission for two
faculty members complained of Bowman’s            days, but denied permission for the third
presence on campus. Campus police, in             day, citing the five-day cap. Bowman pro-
response to these complaints, occasionally        ceeded with his speech on the days he was
had to curb violent outbursts and erect           allowed to speak, covering the first five
barricades to maintain crowd control as           Commandments. Due to the five-day cap,
974                     444 FEDERAL REPORTER, 3d SERIES

Bowman was precluded from sharing his           view de novo the district court’s conclu-
message for the rest of the fall semester of    sions of law. Doe v. Pulaski County Spe-
2001.                                           cial Sch. Dist., 306 F.3d 616, 621 (8th
   During the spring semester of 2002,          Cir.2002). There are no material facts in
Bowman once again utilized his five per-        dispute.
mitted days. Bowman applied for a sixth
visit. His request was denied under the                             II.
five-day cap.                                      [2–7] ‘‘[S]tate colleges and universities
   Later that spring, with the sponsorship      are not enclaves immune from the sweep
of a student organization, Bowman at-           of the First Amendment.’’ Healy v.
tempted again to speak on a sixth day.          James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33
The University approved the appearance,         L.Ed.2d 266 (1972). However, ‘‘the First
but required a representative of the stu-       Amendment does not guarantee access to
dent organization to be with Bowman at all      property simply because it is owned or
times while Bowman remained on campus.          controlled by the government.’’ Perry
Bowman was forced to cease his expres-          Educ. Ass’n v. Perry Local Educators’
sion whenever the representative was not        Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 74
present.                                        L.Ed.2d 794 (1983) (internal quotations
   Unable to resolve his differences with       omitted). ‘‘The existence of a right of
the University, Bowman filed the present        access to public property and the standard
lawsuit alleging that the permit require-       by which limitations upon such a right
ment, five-day cap, three-day advance no-       must be evaluated differ depending on the
tice requirement, and dead day ban are          character of the property at issue.’’ Id. at
unconstitutionally vague, overbroad, and        44, 103 S.Ct. 948. To this end, the Supreme
discriminatory as applied to him, in viola-     Court uses a forum analysis for evaluating
tion of the First and Fourteenth Amend-         restrictions of speech on government prop-
ments to the United States Constitution.        erty. See id. at 45–46, 103 S.Ct. 948. The
He sought declaratory and injunctive relief     forum analysis initially requires a court to
as well as damages under 42 U.S.C.              determine whether a property is a tradi-
§ 1983.                                         tional public forum, a designated public
                                                forum, or a nonpublic forum. Families
  After previously dismissing his claim for
                                                Achieving Independence & Respect v. Neb.
compensatory damages, the district court
                                                Dep’t of Soc. Servs., 111 F.3d 1408, 1418
held a plenary hearing pursuant to Fed.
                                                (8th Cir.1997). Once a court makes a de-
R.Civ.P. 65(a)(2), consolidating the prelimi-
                                                termination on the nature of the forum, it
nary injunction hearing with a trial on the
                                                then applies the appropriate standard of
merits of his complaint. At the conclusion
                                                scrutiny to decide whether a restriction on
of the hearing, the district court dismissed
                                                speech passes constitutional muster. See,
Bowman’s complaint because it found the
                                                e.g., Ark. Educ. Television Comm’n v.
University to be a nonpublic forum and all
                                                Forbes, 523 U.S. 666, 677–683, 118 S.Ct.
the challenged restrictions on speech to be
                                                1633, 140 L.Ed.2d 875 (1998) (hereinafter
                                                ‘‘Forbes’’); United States v. Kokinda, 497
  [1] Bowman filed a timely notice of           U.S. 720, 726–27, 110 S.Ct. 3115, 111
appeal pursuant to Fed. R.App. P. 4(a),         L.Ed.2d 571 (1990). Thus, the extent to
thereby invoking our jurisdiction over the      which access to, and the character of
appeal under 28 U.S.C. § 1291. We re-           speech upon, government property may be
                                   BOWMAN v. WHITE                                          975
                                Cite as 444 F.3d 967 (8th Cir. 2006)

limited depends upon the nature of the             and leaves open ample alternative channels
forum in which the speech takes place.             of communication. Id.
Burnham v. Ianni, 119 F.3d 668, 675 (8th
Cir.1997).                                         B.    Designated Public Forum
                                                      [14, 15] A designated public forum is a
A. Traditional Public Forum                        nonpublic forum the government intention-
                                                   ally opens to expressive activity for a limit-
   [8–10] The government’s ability to re-
                                                   ed purpose such as use by certain groups
strict speech is most circumscribed in a
                                                   or use for discussion of certain subjects.
traditional public forum. Perry, 460 U.S.
                                                   Perry, 460 U.S. at 46, 103 S.Ct. 948. ‘‘The
at 45, 103 S.Ct. 948 (‘‘In places which by
                                                   government does not create a [designated]
long tradition or by government fiat have
                                                   public forum by inaction or by permitting
been devoted to assembly and debate, the
                                                   limited discourse, but only by intentionally
rights of the state to limit expressive activ-
                                                   opening a nontraditional public forum for
ity are sharply circumscribed.’’). A tradi-
                                                   public discourse.’’ Forbes, 523 U.S. at 677,
tional public forum is a type of property
                                                   118 S.Ct. 1633 (internal quotations omit-
that ‘‘has the physical characteristics of a
                                                   ted) (alteration in original).
public thoroughfare, TTT the objective use
and purpose of open public access or some             [16] Despite this direction from the
other objective use and purpose inherently         Supreme Court, our Circuit’s analysis of
compatible with expressive conduct, [and]          what constitutes a ‘‘designated public fo-
historical[ly] and traditional[ly] has been        rum,’’ like our sister Circuits’, is far from
used for expressive conductTTTT’’ Warren           lucid. Substantial confusion exists regard-
v. Fairfax County, 196 F.3d 186, 191 (4th          ing what distinction, if any, exists between
Cir.1999) (citations omitted). ‘‘ ‘[P]ublic        a ‘‘designated public forum’’ and a ‘‘limited
places’ historically associated with the free      public forum.’’ See generally, Chiu v. Pla-
exercise of expressive activities, such as         no Indep. Sch. Dist., 260 F.3d 330, 345–46
streets, sidewalks, and parks, are consid-         & nn. 10–12 (5th Cir.2001). As the First
ered, without more, to be ‘public forums.’ ’’      Circuit pointed out in a footnote in Ridley
United States v. Grace, 461 U.S. 171, 177,         v. Mass. Bay Transp. Auth., 390 F.3d 65,
103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).             76 n. 4 (1st Cir.2004), ‘‘The phrase ‘limited
                                                   public forum’ has been used in different
  [11–13] A content-based restriction on           ways.’’ ’ The First Circuit accurately
speech within a traditional public forum           states that the phrase has been used as a
must be necessary to serve a compelling            synonym for the term ‘‘designated public
government interest and be narrowly                forum’’ and also for the phrase ‘‘nonpublic
drawn to achieve that interest. Perry, 460         forum.’’ Id. The Second Circuit has artic-
U.S. at 45, 103 S.Ct. 948. A restriction on        ulated the view that the phrases ‘‘designat-
speech that is not content-based and that          ed public forum’’ and ‘‘limited public fo-
restricts the time, place or manner in             rum’’ are not synonyms. See, e.g., N.Y.
which speech may be communicated is sub-           Magazine v. Metro. Transp. Auth., 136
jected to a different, less restrictive stan-      F.3d 123, 128 & n. 2 (2d Cir.1998) (describ-
dard. Id. The government may enforce a             ing a limited public forum as a ‘‘sub-cate-
reasonable, content-neutral time, place and        gory of the designated public forum, where
manner restriction in a traditional public         the government ‘opens a non-public forum
forum if the restriction is narrowly tailored      but limits the expressive activity to certain
to serve a significant government interest         kinds of speakers or to the discussion of
976                     444 FEDERAL REPORTER, 3d SERIES

certain subjects.’ ’’ (quoting Travis v. Owe-    interest. Perry, 460 U.S. at 46, 103 S.Ct.
go–Apalachin Sch. Dist., 927 F.2d 688, 692       948. In contrast, in a limited designated
(2d Cir.1991))); see also Chiu, 260 F.3d at      public forum, ‘‘[r]estrictions on speech not
346 n. 12. A designated public forum can         within the type of expression allowed in a
be classified as either ‘‘of a limited or        limited public forum must only be reason-
unlimited character.’’ Van Bergen v.             able and viewpoint neutral.’’ Turner, 378
Minnesota, 59 F.3d 1541, 1553 n. 8 (8th          F.3d at 143.
                                                 C. Nonpublic Forum
   [17, 18] Under this analysis, a ‘‘limited
public forum is a subset of the designated           [21–23] The government can most
public forum [that] arises ‘ ‘‘where the gov-    freely restrict speech in a nonpublic forum.
ernment opens a non-public forum but lim-        A nonpublic forum is government property
its the expressive activity to certain kinds     which is not classified a traditional public
of speakers or to the discussion of certain      forum or designated public forum. War-
subjects.’’ ’ ’’ Make the Road By Walking,       ren, 196 F.3d at 192. In a nonpublic fo-
Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.       rum, the government may restrict speech
2004) (quoting Hotel Employees & Rest.           ‘‘ ‘as long as the restrictions are reasonable
Employees Union Local 100 of N.Y. v.             and [are] not an effort to suppress expres-
City of N.Y. Dep’t of Parks & Recreation,        sion merely because the public officials
311 F.3d 534, 545 (2d Cir.2002)) (quoting        oppose [a] speaker’s view.’ ’’ American
N.Y. Magazine v. Metro. Transp. Auth.,           Civil Liberties Union of Nevada v. City of
136 F.3d 123, 128 n. 2 (2d Cir.1998)). For       Las Vegas, 333 F.3d 1092, 1098 (9th Cir.
example, a university concert hall might be      2003) (quoting Sammartano v. First Judi-
considered a ‘‘limited public forum,’’ desig-    cial Dist. Court, 303 F.3d 959, 966 (9th
nated for particular speech by university-       Cir.2002)).
supported musicians. An ‘‘unlimited’’ des-
                                                    [24] Accordingly, when analyzing how
ignated public forum is a forum designated
                                                 to classify a forum we must ask two ques-
for expressive conduct by the government
                                                 tions. First, is the space a traditional
but not limited to a particular type of
                                                 public forum, a designated public forum, or
speech or speaker.
                                                 a nonpublic forum? Second, if the space is
   [19, 20] The distinction between a lim-       a designated public forum, is the forum
ited designated public forum and an unlim-       limited or unlimited in its character?
ited designated public forum is significant
because it controls the level of scrutiny                             III.
given to restrictions on speech. Like the
                                                    The district court found that the campus
government’s ability to restrict speech in a
                                                 of the University of Arkansas at Fayette-
traditional public forum, the government’s
                                                 ville is not a public forum. We disagree.
ability to restrict speech in an unlimited
                                                 The facts of this case show that the Uni-
designated public forum is sharply circum-
                                                 versity’s grounds cannot be labeled as only
scribed. Perry, 460 U.S. at 45, 103 S.Ct.
                                                 one type of forum and that the areas in
948. In an unlimited designated public
                                                 question in this case are unlimited desig-
forum, the government may enforce a con-
                                                 nated public fora.
tent-neutral time, place, and manner re-
striction only if the restriction is necessary     [25] A modern university contains a
to serve a significant government interest       variety of fora. Its facilities may include
and is narrowly drawn to achieve that            private offices, classrooms, laboratories,
                                         BOWMAN v. WHITE                                                 977
                                      Cite as 444 F.3d 967 (8th Cir. 2006)

academic medical centers, concert halls,                 As Bowman concedes, these areas are non-
large sports stadiums and arenas, and                    public fora. Other campus locations, such
open spaces. The University of Arkansas                  as auditoriums or stadiums allow for cer-
at Fayetteville is this type of institution.             tain speech on certain topics. These loca-
Its open spaces, like those at most major                tions may be described as designated pub-
universities, come in a number of different              lic fora. Further, the public streets and
types. Some are enclosed quadrangles                     sidewalks which surround the campus but
bordered on all sides by university build-               are not on the campus likely constitute
ings and traversed by sidewalks, while oth-              traditional public fora. Grace, 461 U.S. at
ers are grassy areas or plazas on the edge               177, 103 S.Ct. 1702. Accordingly, rather
of campus where the University’s grounds                 than attempt to label the entire campus as
abut the city property. Thus, labeling the               one type of forum, we will discuss only the
campus as one single type of forum is an
                                                         specific areas at issue in this case.
impossible, futile task. See Justice for All
v. Faulkner, 410 F.3d 760, 766 (5th Cir.                    [26] Bowman desires to speak at vari-
2005) (stating that ‘‘the Supreme Court’s                ous locations throughout the campus in-
forum analysis jurisprudence does not re-                cluding the streets, sidewalks, and open
quire us to choose between the polar ex-                 areas located inside and directly adjacent
tremes of treating an entire university                  to the campus. Specifically at issue in this
campus as a forum designated for all types               case, Bowman desires to speak at the out-
of speech by all speakers, or, alternatively,            door areas clearly within the boundaries of
as a limited forum where any reasonable                  the campus known as the Union Mall,3 the
restriction on speech must be upheld’’);                 Peace Fountain 4 and Brough Commons,5
see also Ala. Student Party v. Student                   presumably because of the high concentra-
Gov’t Ass’n, 867 F.2d 1344, 1354 n. 6 (11th              tion of students in these locations.
Cir.1989) (Tjoflat, J., dissenting) (stating
that not all of a University campus is a                    [27, 28] The objective evidence in the
public forum, but rather that a campus                   record shows these particular areas com-
contains a variety of fora). Some places                 bine the physical characteristics of streets,
on the University’s campus, such as the                  sidewalks, and parks, and are open for
administration building, the president’s of-             public passage. They do not include uni-
fice, or classrooms are not opened as fora               versity buildings or stadiums, but they are
for use by the student body or anyone else.              located within the boundaries of the cam-

3.     The Union Mall is located in the center of             of water at the base. A cemented area with
     campus between the library and Union Mall                potted trees and plants surrounds the foun-
     facility. It is an outdoor area composed of              tain. Sidewalks run through and parallel to
     grassy mounds surrounded by sidewalks and                the Peace Fountain. A statue and small stone
     walkways, benches, and potted trees and                  wall appear in pictures of the area.
     plants. A bike rack, basketball hoop, fountain
     and street lamps appear in pictures depicting       5.     The Brough Commons building is an on-
     the area. The Union Mall hosts a variety of              campus eating facility, but the area in ques-
     organized events such as political gatherings            tion is outside the building at the intersection
     and musical events. Students use the Union               of Dickson Street and Ozark Street. Dickson
     Mall to sit on its benches and lay on its grass          Street runs from downtown Fayetteville and
     to read, study, and talk to one another.                 dead-ends in part of the campus. The area in
                                                              question consists of a large sidewalk with
4.     The Peace Fountain is located in the center            some landscaping featuring trees and plants.
     of campus and hosts a variety of organized               The area also contains a historical marker
     and unorganized events. The Peace Fountain               memorializing the acquisition of the farmland
     is a metallic tower structure with a fountain            on which the University sits.
978                       444 FEDERAL REPORTER, 3d SERIES

pus. The Union Mall and Peace Fountain             forums such as streets or parks or even
are completely surrounded by University            municipal theaters.’’ Widmar v. Vincent,
buildings. The physical characteristics of         454 U.S. 263, 268 n. 5, 102 S.Ct. 269, 70
these spaces, ‘‘without more,’’ might make         L.Ed.2d 440 (1981). A university’s pur-
them traditional public fora. Grace, 461           pose, its traditional use, and the govern-
U.S. at 177, 103 S.Ct. 1702; Hague v.              ment’s intent with respect to the property
Comm. for Indus. Org., 307 U.S. 496, 515,          is quite different because a university’s
59 S.Ct. 954, 83 L.Ed. 1423 (1939) (‘‘Wher-        function is not to provide a forum for all
ever the titles of streets and parks may           persons to talk about all topics at all times.
rest, they have immemorially been held in          Rather, a university’s mission is education
trust for the use of the public and, time out      and the search for knowledge—to serve as
of mind, have been used for purposes of            a ‘‘ ‘special type of enclave’ devoted to
assembly, communicating thoughts be-               higher education.’’ ACLU Student Chap-
tween citizens, and discussing public ques-        ter—Univ. of Md., College Park v. Mote,
tions.’’). However, ‘‘[p]ublicly owned or          321 F.Supp.2d 670, 679 (D.Md.2004) (quot-
operated property does not become a ‘pub-          ing Grace, 461 U.S. at 180, 103 S.Ct. 1702);
lic forum’ simply because members of the           see Widmar, 454 U.S. at 268 n. 5, 102 S.Ct.
public are permitted to come and go at             269 (‘‘We have not held, for example, that
will.’’ Grace, 461 U.S. at 177, 103 S.Ct.          a campus must make all of its facilities
1702. Rather, the open nature of these
                                                   equally available to students and nonstu-
spaces is merely a factor to consider in
                                                   dents alike, or that a university must grant
determining whether the government has
                                                   free access to all of its grounds or build-
opened its property. Grace, 461 U.S. at
                                                   ings.’’). Thus, streets, sidewalks, and oth-
177, 103 S.Ct. 1702. We must also exam-
                                                   er open areas that might otherwise be
ine the traditional use of the property, the
                                                   traditional public fora may be treated dif-
objective use and purposes of the space,
                                                   ferently when they fall within the bound-
and the government intent and policy with
                                                   aries of the University’s vast campus.
respect to the property, not merely its
physical characteristics and location.6 In            The University argues that the areas at
particular, we must acknowledge the pres-          issue should be treated as nonpublic fora.
ence of any special characteristics regard-        This argument is contrary to how the Uni-
ing the environment in which those areas           versity itself, through its policies and pro-
exist. See, e.g., Tinker v. Des Moines             cedures, has treated the Union Mall, the
Indep. Sch. Dist., 393 U.S. 503, 506, 89           Peace Fountain, and the Brough Com-
S.Ct. 733, 21 L.Ed.2d 731 (1969) (noting           mons. The Policy, which permits speech
the ‘‘special characteristics of the school        by University and Non–University Enti-
environment’’); Greer v. Spock, 424 U.S.           ties, offers strong evidence that the Uni-
828, 838–40, 96 S.Ct. 1211, 47 L.Ed.2d 505         versity ‘‘intentionally open[ed]’’ areas of
(1976) (discussing the unique nature of mil-       the campus ‘‘for public discourse.’’
itary bases and the fact that these circum-        Forbes, 523 U.S. at 677, 118 S.Ct. 1633
stances must be taken into consideration).         (internal quotation omitted). The Policy
   In the case of the University, although it      expressly states that it applies to ‘‘facilities
‘‘possesses many of the characteristics of a       or outdoor space TTT for use by University
public forum,’’ such as open sidewalks, ‘‘[it]     entities and Non–University entities.’’
differs in significant respects from public        Fayetteville Policies and Procedures, ‘‘Use

6.   It must be noted that none of these factors     are dispositive.
                                   BOWMAN v. WHITE                                         979
                                Cite as 444 F.3d 967 (8th Cir. 2006)

of University Facilities and Outdoor               height of the Vietnam War or the debate
Space’’ 708.0(A). The Policy governs the           over the war in Iraq, college campuses
specific areas at issue here. The only use         serve as a stage for societal debate. Often
of the space that is prohibited is any activi-     those speaking on college campuses are
ty by private, for-profit businesses.              not enrolled students, but rather people
708.0(A). Further, the Policy indicates            like Bowman, who travel from campus to
that the University has opened up the              campus to spread their message. Thus,
campus generally, not merely ‘‘to either a         public university campuses historically
specific group of speakers or for discussion       contain places where space is specifically
on a very narrow topic.’’ Bourgault v.             designated by society and universities
Yudof, 316 F.Supp.2d 411, 420 (N.D.Tex.
                                                   themselves for speech.
2004). The Policy provides strong evi-
dence that the University, like many public           This tradition of free expression within
colleges, has opened select portions of its        specific parts of universities, the Universi-
campus ‘‘to facilitate discussion on issues        ty’s practice of permitting speech at these
of public concern.’’ Id. As such, the Policy       locations, and the University’s past prac-
indicates that the University itself desig-        tice of permitting both University Entities
nated the areas in question as locations for       and Non–University Entities to speak at
free expression.                                   these locations on campus demonstrate
   College campuses traditionally and his-         that the University deliberately fosters an
torically serve as places specifically desig-      environment that permits speech ‘‘subject
nated for the free exchange of ideas. Hea-         to the limits necessary to preserve the
ly, 408 U.S. at 180, 92 S.Ct. 2338 (stating        academic mission and to maintain order.’’
that universities represent a ‘‘marketplace        Hays County Guardian v. Supple, 969
of ideas’’). The Supreme Court has ad-             F.2d 111, 117 (5th Cir.1992) (finding cer-
vanced the idea that universities have tra-        tain outdoor areas of a university to be a
ditionally opened parts of their campuses          designated public forum, designated for
to speech.                                         the speech of students). Accordingly, we
   Th[e] danger [of chilling speech] is espe-      hold that the specific property at issue—
   cially real in the University setting,          the Union Mall, Peace Fountain, and
   where the State acts against a back-            Brough Commons—are designated public
   ground and tradition of thought and ex-         fora. This holding does not apply to any
   periment that is at the center of our           other areas on the University campus,
   intellectual and philosophic traditionTTTT      about which we express no opinion.
   [U]niversities began as voluntary and
   spontaneous assemblages or concourses              We must next decide whether the forum
   for students to speak and to write and to       is limited or unlimited in its character. In
   learn. The quality and creative power           this case, although the University gives
   of student intellectual life to this day        preferential treatment to University Enti-
   remains a vital measure of a school’s           ties over Non–University Entities in re-
   influence and attainment.                       gard to use of University space, there is
Rosenberger v. Rector & Visitors of the            little evidence that the University intended
Univ. of Va., 515 U.S. 819, 835–36, 115            to limit the use of University space to a
S.Ct. 2510, 132 L.Ed.2d 700 (1995) (cita-          particular type of speech or speaker. Ac-
tions omitted). Indeed, in times of great          cordingly, we hold that the spaces at issue
national discussion, such as during the            are unlimited designated public fora.
980                             444 FEDERAL REPORTER, 3d SERIES

                          IV.                           tive.’’). Finally, a third significant interest
   Having concluded that the outdoor areas              asserted by the University is the fostering
in question are unlimited designated public             of a diversity of uses of University re-
fora, we must ascertain whether the Policy              sources.
impermissibly restrains free expression.
We analyze the University’s time, place,                   [30] A regulation is narrowly tailored
and manner restrictions using the appro-                when it furthers a significant government
priate scrutiny standard, which requires a              interest that would be achieved less effec-
restriction on speech to be content-neutral             tively without the regulation. Thorburn v.
and narrowly tailored to serve a significant            Austin, 231 F.3d 1114, 1120 (8th Cir.2000).
government interest. Perry, 460 U.S. at                 The statute does not, however, need to be
45, 103 S.Ct. 948.                                      the least restrictive means of regulation
                                                        possible. Id. Accordingly, we next analyze
   [29] There is no evidence that the Poli-             whether each of the time, place and man-
cy is anything but content neutral. Our                 ner restrictions imposed by the University
analysis, therefore, focuses on whether the             are sufficiently narrowly tailored to meet
Policy is narrowly tailored to serve a sig-
                                                        one or more of the significant government
nificant government interest. The Univer-
                                                        interests described above.
sity has identified a number of interests
that justify a restriction on speech. One
                                                        A.   Permit Requirement
significant interest is protecting the edu-
cational experience of the students in fur-                [31, 32] The University’s requirement
therance of the University’s educational                that a Non–University Entity obtain a per-
mission.7 This interest is significant be-              mit before ‘‘using’’ outdoor space is a prior
cause an educated electorate is essential to            restraint on speech against which there is
the vitality of our democracy and a lack of             a heavy presumption of unconstitutionality.
proper education diminishes the value of                Forsyth County v. The Nationalist Move-
our free speech rights. See Keyishian v.                ment, 505 U.S. 123, 130, 112 S.Ct. 2395,
Bd. of Regents of the Univ. of the State of             120 L.Ed.2d 101 (1992). The government
N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17               ‘‘may impose a permit requirement on
L.Ed.2d 629 (1967) (‘‘The Nation’s future               those wishing to hold a TTT rally.’’ Id.
depends upon leaders trained through                    This permit may only be imposed, howev-
wide exposure to that robust exchange of                er, if it does not delegate overly broad
ideas TTTT’’). A second significant interest            licensing discretion to a government offi-
is in ensuring public safety. Like edu-                 cial, is content-neutral, is narrowly tailored
cation, safety is a fundamental human need              to the University’s significant governmen-
without which the desire to speak one’s                 tal interests, and leaves ample alternative
mind becomes moot. See Heffron v. Int’l                 channels for communication. Id.
Soc’y for Krishna Consciousness, Inc., 452
U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d                  [33] The University’s policy does not
298 (1981) (‘‘As a general matter it is clear           delegate overly broad discretion to its offi-
that a State’s interest in protecting the               cials, nor does it allow the denial or revo-
‘safety and convenience’ of persons using a             cation of permits on the basis of content.
public forum is a valid governmental objec-             The Policy applies to all not-for-profit

7.     This interest includes the University’s inter-     for the space in furtherance of that mission.
     est in preserving University Entities’ priority
                                       BOWMAN v. WHITE                                                   981
                                    Cite as 444 F.3d 967 (8th Cir. 2006)

Non–University Entities.8         The Policy           man’s event. Thomas, 534 U.S. at 322,
grants the University the right to deny or             122 S.Ct. 775.
revoke a permit for the use of a space by a               The University’s permit requirement is
Non–University Entity only for limited                 narrowly tailored to meet these significant
reasons, such as interference with the edu-            interests. The University’s requirement
cational activities of the institution.                that Non–University Entities notify the
  The University has a significant public              University in advance of their intent to use
safety interest in requiring a permit be-              its facilities does not burden substantially
cause of the time and resources necessary              more speech than is necessary to further
to accommodate the crowds that Bowman                  the University’s interests. These interests
attracts. See Thomas v. Chicago Park                   include ensuring public safety, minimizing
Dist., 534 U.S. 316, 322, 122 S.Ct. 775, 151           the disruption of the educational setting,
L.Ed.2d 783 (2002) (upholding a require-               and coordinating the use of limited space
ment that individuals obtain a permit be-              by multiple entities. Further, the Univer-
fore conducting events in public parks in-             sity’s requirement leaves open ample alter-
volving fifty or more people); see also                native channels for communication. Ac-
Grossman v. City of Portland, 33 F.3d                  cordingly, although the Policy admittedly
1200, 1206 (9th Cir.1994) (‘‘Some type of              does burden Bowman’s speech by requir-
permit requirement may be justified in the             ing him to plan sufficiently in advance to
case of large groups, where the burden                 obtain a permit, it is not overly burden-
placed on park facilities and the possibility          some so as to make the permit require-
of interference with other park users is               ment unconstitutional.
more substantial.’’). Bowman argues that
the Thomas and Grossman analyses are                   B.    Five–Day Cap
not applicable to him because he is a single
                                                         [34] In addition to the permit require-
speaker. This argument fails because re-
                                                       ment, the University regulates the time in
gardless of whether Bowman is speaking
                                                       which a speaker may speak by imposing a
alone or with others, carrying a sign, or
                                                       cap of five, eight-hour days per semester.
handing out literature, he has demonstrat-
                                                       If a speaker requests a sixth day, the
ed the capacity to attract a crowd and
                                                       University will deny the permit. The Uni-
disrupt the unique educational environ-
                                                       versity explains that the five-day cap al-
ment. See Mote, 321 F.Supp.2d at 679.
                                                       lows the speaker, on a semester basis, the
In fact, the majority of Bowman’s space
                                                       same number of access hours as expended
reservation requests listed an estimated
attendance of between fifty and one hun-               on a typical three-semester-hour class.
dred people, analogous to the situation in             The University argues that the five-day
Thomas. The actual attendance at his                   cap fosters a diversity of usage, prevents
events has run as high as two hundred                  monopolization of space and preserves the
people. Under these circumstances, the                 property’s tax-exempt status.
permit requirement is justified to ‘‘coordi-             The University’s interest in fostering a
nate multiple uses of limited space,’’ ‘‘as-           diversity of viewpoints and avoiding the
sure preservation of the [campus],’’ ‘‘pre-            monopolization of space serves a signifi-
vent uses that are dangerous’’ to students             cant interest. However, the five-day cap
or other people, and ‘‘to assure financial             is not sufficiently narrowly drawn to
accountability for damage’’ caused by Bow-             achieve that interest. The Policy as writ-

8.   The Policy gives the University broad discre-        tion to deny permits to for-profit entities.
982                     444 FEDERAL REPORTER, 3d SERIES

ten does not by itself foster more view-         in Douglas v. Brownell, 88 F.3d 1511,
points; it merely limits Bowman’s speech.        1523–24 (8th Cir.1996), that a five-day ad-
If no one else wants to use the space after      vance notice requirement for a permit was
Bowman has used his five permits, the            not narrowly tailored. We noted, however,
space will go unused even if Bowman still        that advance notice requirements of three
wants to use the space. A more narrowly          days or fewer have been upheld by courts
tailored policy might grant Bowman more          as sufficiently narrowly tailored. Id. at
than just five days per semester to speak        1523. The case at bar is distinguishable
if the space is not being used, but give         from Douglas in at least two ways. First,
preference to other speakers who have not        the notice requirement is only three days.
already obtained five permits. Further-          Second, a university is less able than a city
more, a policy that allows speakers to ob-       or other entity with police powers to deal
tain permits for a limited number of events      with a significant disruption on short no-
at any one time might be permissible to          tice. Mote, 321 F.Supp.2d at 681 (‘‘a Uni-
further the significant interest of keeping      versity’s resources are limited and the
spaces open for an array of groups and a         University has an interest in reserving
diversity of uses. This type of policy           those resources for University community
would further the University’s interest in       members’’); see also Glover v. Cole, 762
preventing a single entity from monopoliz-       F.2d 1197, 1203 (4th Cir.1985) (‘‘[a] college
ing a specific space by reserving that space     has a right to preserve the campus for its
for an entire semester with a single permit      intended purpose and to protect college
request.                                         students from the pressures of solicita-
                                                 tion’’). In light of the modest nature of
   Although the five-day cap might in-           the requirement and what the district
crease the odds that the space will be           court described as the University’s re-
available for informal use, this rationale is    duced capacity to address ‘‘the exigencies
not a sufficient justification in light of the   of determining what, if any, security,
disfavor with which restrictions on speech       crowd control, additional insurance, etc.,
are viewed. The University’s limitation is       will be required for a particular event,’’ we
not narrowly tailored to achieve its inter-      conclude that the advance notice require-
est in fostering a diversity of viewpoints       ment is sufficiently narrowly tailored, and
and avoiding monopolization of space. Ac-        thus permissible.
cordingly, we conclude that the five-day
cap is an unnecessary abridgment of Bow-         D.   Dead Day Ban
man’s speech rights, and therefore uncon-           [36] The University bans Non–Univer-
stitutional.                                     sity Entities from using its space during
                                                 so-called ‘‘dead days.’’ The University ex-
C.    Three–Day Notice Requirement               plains that ‘‘dead days’’ are the official
   [35] The University requires three-           final examination periods, which allow stu-
days’ advance notice. Bowman argues              dents to study for and take final exams in
that the advance notice requirement effec-       a peaceful, quiet environment, and the
tively bars him from engaging in constitu-       dates of official University commencement
tionally protected spontaneous speech.           activities. Protecting the educational ex-
The University asserts that the notice re-       perience of the students by preserving lim-
quirement is necessary to allow it to plan       ited quiet study and exam-taking time is a
for exigencies such as crowd control and         significant government interest. The Uni-
insurance requirements. This court stated        versity has shown that Bowman’s activities
                                  BOWMAN v. WHITE                                        983
                               Cite as 444 F.3d 967 (8th Cir. 2006)

such as preaching, passing out literature,        versity-related activities (such as athletic
or carrying a sign could very easily inter-       contests and work on the physical plant)
fere with a student’s educational experi-         that have a potential to hinder students in
ence by causing a noise disturbance. For          their preparation for examinations. (Ap-
example, carrying a sign, though silent as        pellant’s App. at 290–91). We think it was
an action, might provoke noisy, disruptive        reasonable for the administration to con-
confrontations.                                   clude that University Entities who do re-
   Bowman argues that the dead day ban is         serve space in the designated forums on
underinclusive because it leaves a substan-       these dates are more likely to be attuned
tial amount of seemingly intrusive conduct        to the special needs of the university com-
unregulated, in that it allows speech by          munity during examination and commence-
University Entities, which could be just as       ment periods (see id. at 341), and thus less
intrusive as speech by Non–University En-         likely to disrupt the campus during these
tities. See City of Ladue v. Gilleo, 512          sensitive times. In effect, the university
U.S. 43, 52–53, 114 S.Ct. 2038, 129 L.Ed.2d       has elected to limit the designated forums
36 (1994) (stating that exceptions to a reg-      to certain classes of speakers during these
ulation of speech may diminish govern-            narrow windows in the academic year, and
ment’s credibility in justifying its regula-      it is well established that the government
tion). This underinclusivity, however, does       is not required ‘‘to indefinitely retain the
not necessarily undermine the credibility         unlimited open character of’’ a designated
of the university’s rationale for limiting        public forum. Perry, 460 U.S. at 46, 103
access during examination and commence-           S.Ct. 948. Accordingly, we conclude that
ment periods. The underinclusive regula-          the dead day ban passes constitutional
tion of speech in Ladue was a ‘‘red flag’’        muster.
that rendered ‘‘implausible the govern-
ment’s claim that the regulation TTT [wa]s
narrowly tailored,’’ National Federation of          For the foregoing reasons, we conclude
the Blind v. Federal Trade Commision,             that the University’s permit requirement,
420 F.3d 331, 345–46 (4th Cir.2005), but a        notice requirement, and dead day ban are
limitation on speech that is not all-encom-       constitutional, but that the five-day cap is
passing may still be narrowly tailored            insufficiently narrowly tailored to survive.
where the underinclusivity does not favor a       Accordingly, we affirm in part and reverse
particular viewpoint or undermine the ra-         in part.
tionale given for the regulation. Id.; Chil-
dren of the Rosary v. City of Phoenix, 154           BYE, Circuit Judge, concurring.
F.3d 972, 982 (9th Cir.1998); ISKCON of             While I agree with the Court as to the
Potomac, Inc. v. Kennedy, 61 F.3d 949,            ultimate outcome of this case, I write sepa-
957–58 (D.C.Cir.1995).                            rately because the Union Mall, Peace
   Here, the university reasonably justified      Fountain, and Brough Commons should be
a modification of its unlimited designated        recognized as traditional public fora.
forum during discrete times of the aca-             The most important analysis we under-
demic year when an abundance of speak-            take in a First Amendment case is the
ers would be likely to interfere with the         forum analysis. As the Court recognizes,
educational mission. During these peri-           the forum analysis dictates the level of
ods, the university restricts not only out-       scrutiny we apply in First Amendment
side speakers like Bowman, but also uni-          cases. See Ark. Educ. Television Comm’n
984                           444 FEDERAL REPORTER, 3d SERIES

v. Forbes, 523 U.S. 666, 677–83, 118 S.Ct.             streets, sidewalks, and parks, are consid-
1633, 140 L.Ed.2d 875 (1998). While the                ered, without more, to be public forums.’’
Court does an excellent job of wading                  Ante at 975 (quoting Grace, 461 U.S. at
through the muddy waters of First                      177, 103 S.Ct. 1702) (internal quotations
Amendment forum analysis jurisprudence,                omitted); see also Hague, 307 U.S. at 515,
like so many courts, it fails to plant the             59 S.Ct. 954 (‘‘Wherever the title of streets
seeds of its discourse in the marshes at               and parks may rest, they have immemori-
issue here. I cannot adopt the Court’s                 ally been held in trust for the use of the
view as to public areas on a public univer-            public and, time out of mind, have been
sity campus not being traditional public               used for purposes of assembly, communi-
fora but instead designated public fora                cating thoughts between citizens, and dis-
which the University can redesignate to a              cussing public questions.’’). However, the
non-public forum on a whim.                            Court’s analysis fails to give any weight to
                                                       the precedent it cites.
                          I                               The Court acknowledges the areas in
                                                       dispute-the Union Mall, Peace Fountain,
  The Court employs the now-standard
                                                       and Brough Commons-have the ‘‘physical
definition of a traditional public forum:
                                                       characteristics of streets, sidewalks, and
property owned or controlled by the gov-
                                                       parks, and are open for public passage.’’
ernment which (1) has the physical charac-
                                                       Ante at 978. The Court even goes so far
teristics of a public thoroughfare, (2) was
                                                       as to note ‘‘[t]he physical characteristics of
created with the purpose of open public
                                                       these spaces, ‘without more,’ might make
access or for a purpose inherently compati-
                                                       them traditional public fora.’’ Id. Of
ble with expressive conduct,9 and (3) has
                                                       course, the physical characteristics of a
traditionally been used for expressive con-
                                                       space are not the only factors to consider
duct. Warren v. Fairfax County, 196 F.3d
                                                       in a traditional public forum analysis. The
186, 191 (4th Cir.1999). Streets, sidewalks
                                                       purpose for which the space was created
and parks are the quintessential tradition-
                                                       and the traditional use of the space must
al public fora. See ante at 978 (citing
                                                       also be considered. See Warren, 196 F.3d
United States v. Grace, 461 U.S. 171, 177,
                                                       at 191. In analyzing the other factors, the
103 S.Ct. 1702, 75 L.Ed.2d 736 (1983);
                                                       Court missteps. It gives undue weight to
Hague v. Comm. for Indus. Org., 307 U.S.
                                                       largely irrelevant factors, insufficiently an-
496, 515, 59 S.Ct. 954, 83 L.Ed. 1423
                                                       alyzes others, and fails to contextualize its
(1939)); see also Am. Civil Liberties Un-
                                                       analysis to the University of Arkansas
ion of Nev. v. City of Las Vegas, 333 F.3d
                                                       spaces at issue.
1092, 1099 (9th Cir.2003). Indeed, ‘‘public
places historically associated with the free             The Court, relying upon dicta in a case
exercise of expressive activities, such as             dealing with spaces on the University of

9.     While the purpose for which a space was           sive purposes suggests the areas were intend-
     created is important to determine whether a         ed to be traditional public fora. See Paulsen
     traditional public forum exists, government         v. County of Nassau, 925 F.2d 65, 69 (2d
     intent is not otherwise relevant to a determi-      Cir.1991) (‘‘Intent is not merely a matter of
     nation of whether a space is a traditional          stated purpose. Indeed, it must be inferred
     public forum. See Am. Civil Liberties Union         from a number of objective factors, including:
     of Nev. v. City of Las Vegas, 333 F.3d 1092,
                                                         [the government’s] policy and past practice,
     1104 & n. 11 (9th Cir.2003). Even under a
                                                         as well as the nature of the property and its
     broader intent analysis, however, the Univer-
     sity’s historical use of the spaces for expres-     compatibility with expressive activity.’’).
                                    BOWMAN v. WHITE                                         985
                                 Cite as 444 F.3d 967 (8th Cir. 2006)

Maryland campus, claims a public universi-          for Krishna Consciousness v. Lee, 505
ty’s mission is ‘‘not to provide a forum for        U.S. 672, 693, 112 S.Ct. 2701, 120 L.Ed.2d
all persons to talk about all topics at all         541 (1992) (Kennedy, J., concurring) (‘‘If
times,’’ but rather to serve as an enclave          our public forum jurisprudence is to retain
for higher education. Ante at 978. The              vitality, we must recognize that certain
Court next ascribes this mission to the             objective characteristics of Government
University of Arkansas without analyzing            property and its customary use by the
its varied missions or how they relate to           public may control.’’) (quoting United
determining the existence of a traditional          States v. Kokinda, 497 U.S. 720, 737, 110
public forum.10 See ACLU of Nevada, 333             S.Ct. 3115, 111 L.Ed.2d 571 (1990) (Kenne-
F.3d at 1104 & n. 11 (noting government             dy, J., concurring)).
intent is not relevant to a traditional public          The Court’s analysis gives rather short
forum analysis). Despite its contention no          shrift to another significant factor in the
factor is dispositive, see ante at 978 n. 6,        traditional public forum analysis: whether
the Court essentially concludes this mis-           the space was created for a purpose incom-
sion is sufficient to outweigh all other fac-       patible with expressive conduct. The
tors.                                               Court does not suggest how expressive
  The Court’s analysis, however, does not           conduct, occurring in the Union Mall,
comport with Supreme Court precedent.               Peace Fountain, or Brough Commons is
The issue is not whether the mission of the         ‘‘basically incompatible’’ with a mission of
University as a whole is to provide full            promoting higher education. See Greer v.
access to everyone on all topics, but wheth-        Spock, 424 U.S. 828, 843, 96 S.Ct. 1211, 47
er the University created the spaces for            L.Ed.2d 505 (1976). Indeed, courts have
public access and a purpose not incompati-          consistently held expressive conduct is
ble with expressive conduct and such                compatible with a purpose of promoting
spaces have historically been used for ex-          education. See, e.g., Keyishian v. Bd. of
pressive conduct. The University’s overall          Regents of the Univ. of N.Y., 385 U.S. 589,
mission is irrelevant to a proper First             603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)
Amendment forum analysis.                           (noting the purpose of public universities is
   Should the University’s mission be rele-         to expose students to a ‘‘marketplace of
vant, it would not be dispositive of whether        ideas’’); Bd. of Regents of the Univ. of
a space is a traditional public forum. ‘‘The        Wis. Sys. v. Southworth, 529 U.S. 217, 237,
primary factor in determining whether               120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)
property owned or controlled by the gov-            (‘‘[R]ecognition must be given as well to
ernment is a public forum is how the locale         the important and substantial purposes of
is used.’’ Hotel Employees & Rest. Em-              the University, which seeks to facilitate a
ployees Union, Local 100 of New York,               wide range of speech.’’); Peck v. Upshur
N.Y. & Vicinity, AFL–CIO v. City of New             County Bd. of Educ., 155 F.3d 274, 279
York Dep’t of Parks & Recreation, 311               (4th Cir.1998) (affirming the district court
F.3d 534, 547 (2d Cir.2002) (quoting Int’l          finding the express purpose of a primary
Soc’y for Krishna Consciousness, Inc. v.            school board’s practice of allowing private
N.J. Sports & Exposition Auth., 691 F.2d            speakers access to the public schools was
155, 160 (3d Cir.1982)); see also Int’l Soc’y       to promote ‘‘a broad spectrum of knowl-

10. One of the University of Arkansas’s pur-           of viewpoint diversity.
  poses in enacting the Policy is the promotion
986                       444 FEDERAL REPORTER, 3d SERIES

edge’’); N.J. Sports & Exposition Auth.,        student, faculty, or staff organization, may
691 F.2d at 160 (‘‘[T]he exchange of ideas      assemble and engage in free speech activi-
is an essential part of the educational pro-    ties on the grounds of the campus’’). In
cess TTTT’’); Glover v. Cole, 762 F.2d 1197,    analyzing the spaces, however, the Fifth
1200 (4th Cir.1985) (‘‘A college milieu is      Circuit never addressed the traditional
the      quintessential   ‘marketplace    of    uses of the sidewalks and plazas or wheth-
ideas.’ ’’).                                    er they might be considered traditional
   In analyzing the particular spaces, it is    public fora. Accordingly, Hays does not
undisputed the Union Mall, Peace Foun-          stand for the proposition outdoor side-
tain, and Brough Commons are public             walks and plazas on University property
thoroughfares open to public access. It is      are not traditional public fora; it only
also undisputed these areas are used and        stands for the proposition they are at least
have historically been so for expressive        designated public fora.
and non-expressive activities by both Uni-         The other cases to which the Court cites
versity and Non–University Entities. The        are clearly distinguishable as they relate
Court’s analysis discounts such significant     to: (1) public high schools, which have not
factors in favor of a lesser one-the Univer-    been traditionally held open to expressive
sity’s mission-which is largely irrelevant to   conduct, Tinker v. Des Moines Indep.
a traditional public forum analysis.            Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733,
                                                21 L.Ed.2d 731 (1969); see also South-
                     II                         worth, 529 U.S. at 237, 120 S.Ct. 1346
   The authority upon which the Court re-       (Souter, J., concurring) (‘‘[Our] cases deal-
lies does not support the view streets,         ing with the right of teaching institutions
sidewalks, and parks on a public university     to limit expressive freedom of students
are not traditional public fora. In fact, the   have been confined to high schools, whose
Court’s position is tenuous at best. See        students and their schools’ relation to
Healy v. James, 408 U.S. 169, 180, 92 S.Ct.     them are different and at least arguably
2338, 33 L.Ed.2d 266 (1972) (‘‘[T]he prece-     distinguishable from their counterparts in
dents of this Court leave no room for the       college education.’’) (internal citations
view that, because of the acknowledged          omitted), and which face unique and signif-
order, First Amendment protections              icant discipline concerns, N.J. Sports &
should apply with less force on college         Exposition Auth., 691 F.2d at 160 (‘‘Since
campuses than in the community at               the exchange of ideas is an essential part
large.’’). The only appellate case the          of the educational process, but the need for
Court cites arguably on point is Hays           discipline and order is great, a public high
County Guardian v. Supple, 969 F.2d 111,        school is probably a limited forum also.’’);
118 (5th Cir.1992), which held sidewalks        and (2) military bases which have not been
and plazas to be designated public fora for     historically held open as a public thorough-
the speech of university students. The          fare or for expressive conduct, Greer, 424
analysis in Hays, however, follows the test     U.S. at 838, 96 S.Ct. 1211.
for determining whether a space is a tradi-        The Court also relies upon dicta found in
tional public forum. See id. at 117 (noting     a footnote in Widmar v. Vincent, 454 U.S.
Southwest Texas State University’s regu-        263, 268 n. 5, 102 S.Ct. 269, 70 L.Ed.2d 440
lations permit ‘‘[a]ny group or person,         (1981) (‘‘We have not held, for example,
whether or not a student or employee, and       that a campus must make all of its facili-
whether or not invited by a registered          ties equally available to students and non-
                                   BOWMAN v. WHITE                                         987
                                Cite as 444 F.3d 967 (8th Cir. 2006)

students alike, or that a university must          reasons described in this concurrence.
grant free access to all of its grounds or         See Hazelwood Sch. Dist. v. Kuhlmeier,
buildings.’’), for the proposition streets,        484 U.S. 260, 267, 108 S.Ct. 562, 98
sidewalks, and parks found within public           L.Ed.2d 592 (1988) (‘‘[High] school facili-
universities are not traditional public fora.      ties may be deemed to be public forums
This reading is not supported by the foot-         only if school authorities have ‘by policy or
note. The footnote begins, ‘‘[t]his Court          by practice’ opened those facilities for in-
has recognized that the campus of a public         discriminate use by the general public.’’)
university, at least for its students, pos-        (quoting Perry Educ. Ass’n v. Perry Local
sesses many of the characteristics of a            Educators’ Ass’n, 460 U.S. 37, 47, 103
public forum.’’ Id. (internal citation omit-       S.Ct. 948, 74 L.Ed.2d 794 (1983)); see also
ted). The footnote goes on to limit this           Faulkner, 410 F.3d at 766 (noting a public
generality when applied to college class-          university campus may contain a variety of
rooms. For this limitation, the Court re-          fora); Ala. Student Party, 867 F.2d at
lies upon cases dealing with public high           1354 n. 6 (same).
schools, which, as noted above, are readily
distinguishable from college campuses.
The Court in no way suggests, and per-                                 III
haps with its use of the term ‘‘all’’ implies         The Court does acknowledge public uni-
the contrary, all streets, sidewalks, and          versities and colleges have been historical-
parks on a public university are non-tradi-        ly and traditionally used for expressive
tional public fora.                                purposes by students and non-students
   Indeed, the Court’s reading is in tension       alike. The Court considers the outdoor
with its position a public university campus       areas on the University of Arkansas cam-
contains a variety of fora. See Justice for        pus to be unlimited designated public fora,
All v. Faulkner, 410 F.3d 760, 766 (5th            presumably to ensure student and non-
Cir.2005); Ala. Student Party v. Student           student speech is protected to the level we
Gov’t Ass’n, 867 F.2d 1344, 1354 n. 6 (11th        associate with public universities. Howev-
Cir.1989) (Tjoflat, J., dissenting). If a          er, although the Court’s designation re-
public university contains a space which is        quires the application of the same level of
properly considered a traditional public fo-       scrutiny of regulations limiting speech as
rum, which it almost certainly does, I can-        does a traditional public forum designa-
not think of a more appropriate traditional        tion, see, e.g., Goulart v. Meadows, 345
public forum than a street, sidewalk, or           F.3d 239, 250 (4th Cir.2003), the Court’s
park. For this reason, I disagree with             designation does not effectively serve to
Am. Civil Liberties Union v. Mote, 423             protect either student or non-student
F.3d 438 (4th Cir.2005) (holding because           speech.
the campus is an institution of higher
learning, its outdoor areas are not held              Once a space is deemed something other
open to the general public). Mote stands           than a traditional public forum, even if an
for the proposition the campus as a whole,         unlimited designated public forum, the
including classrooms, facilities, and build-       government is free to redesignate the
ings, must be open to the entire public for        space to limit further expressive conduct
the outdoor areas to constitute a tradition-       or to prohibit it completely. See, e.g., Lee,
al public forum, even when the public has          505 U.S. at 700, 112 S.Ct. 2701 (Kennedy,
unfettered access to such outdoor areas. I         J., concurring); Perry, 460 U.S. at 46, 103
emphatically disagree with Mote for the            S.Ct. 948 (declaring a governmental entity
988                    444 FEDERAL REPORTER, 3d SERIES

is not required to retain indefinitely the     we are to protect any space as a traditional
open character of a designated public fo-      public forum for expressive purposes, a
rum); Chicago Acorn v. Metro. Pier &           public university street, sidewalk, or park
Exposition Auth., 150 F.3d 695, 699–700        must be such a space.
(7th Cir.1998). This is a concept inconsis-
                                                  Wherever a public street or sidewalk
tent with our basic understandings of a
                                               runs, it is presumed to be a traditional
public university. See Rosenberger v. Rec-
                                               public forum. Frisby v. Schultz, 487 U.S.
tor & Visitors of the Univ. of Va., 515 U.S.
                                               474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420
819, 835–36, 115 S.Ct. 2510, 132 L.Ed.2d
                                               (1988). There is, therefore, no reason to
700 (1995) (discussing the historical use of
                                               apply a different level of scrutiny to a
universities as ‘‘voluntary and spontaneous
                                               street, sidewalk or park which happens to
assemblages or concourses for students to
                                               fall within the boundaries of a public uni-
                                               versity than to one owned by a municipali-
   To safeguard a public university street,    ty. The location of the street ‘‘may well
sidewalk, or park’s role as a place for        inform the application of the relevant test,
students to assemble and speak, these ar-      but it does not lead to a different test.’’
eas must be considered the type of proper-     Id.; see also Grayned v. City of Rockford,
ty which would fall within the traditional     408 U.S. 104, 116, 92 S.Ct. 2294, 33
public forum category. Whether a partic-       L.Ed.2d 222 (1972) (‘‘The nature of a place,
ular public university street, sidewalk, or    the pattern of its normal activities, dictate
park is a traditional public forum will de-    the kinds of regulations of time, place, and
pend upon the purpose for which it was         manner that are reasonable.’’) (internal
created and its traditional use. However,      quotation omitted). The University of Ar-
there is no forum more appropriately con-      kansas allows indiscriminate expressive
sidered a ‘‘marketplace of ideas’’ and his-    use by all members of the public at the
torically used by all members of the public    Union Mall, Peace Fountain, and Brough
to present both socially acceptable and        Commons, regulated only by narrowly tai-
unacceptable speech than a street, side-       lored time, place, and manner restrictions
walk, or park found on a public university     designed to serve significant government
campus.                                        interests. While the university context
  Indeed, there is no reason students who      may allow greater and different types of
may or may not pay tuition and who may         time, place, and manner regulations, those
or may not live on campus should have          regulations do not change the character of
more expressive rights upon a campus           the space as a traditional public forum.
street than should non-students who di-
rectly support the public university with
tax dollars. The non-student public at-
tends civic, sporting, theater, and other         The Court wholly fails to acknowledge
events on public university campuses. In       the University did not formally regulate
this sense, a public university belongs just   expressive conduct on its public thorough-
as much to a community as it does to the       fares until it enacted the Policy in 1993.
students. Nor is a public university’s edu-    Because the University now chooses to
cational mission limited to its students-a     regulate speech, however, may not be suf-
university and its faculty publish books to    ficient to overcome the objective indicia of
benefit the public good and use public tax     contrary purpose. See Paulsen v. County
dollars to conduct important research. If      of Nassau, 925 F.2d 65, 69 (2d Cir.1991).
                                      BOWMAN v. WHITE                                             989
                                   Cite as 444 F.3d 967 (8th Cir. 2006)

   It is unclear from the record whether              cally or traditionally occurred on the cam-
the spaces at issue in the instant case were          puses.
designated when the University was                       I am left with uncertainty when the
founded in 1871 or were created sometime              spaces were designated and why-factors
thereafter. If created at the time the                of significant importance in determining
University was founded or prior to the                whether the spaces were created for pur-
enactment of the Policy, this might sug-              poses inherently compatible with expres-
gest the University designated the spaces             sive conduct. In spite of the Court’s
for a purpose inherently compatible with              valiant effort to use generalization to es-
expressive conduct. See Rosenberger, 515              tablish the historical and traditional use
U.S. at 835–36, 115 S.Ct. 2510 (‘‘[U]niversi-         of the Union Mall, Peace Fountain, and
ties began as voluntary and spontaneous               Brough Commons, the record remains in-
assemblages or concourses for students to             sufficient to determine whether the
speak and to write and to learn.’’); Mote,            spaces are traditional public fora under
423 F.3d 438 (‘‘There is nothing in the               our adopted precedent.
record to indicate that until the policy at               However, the absence of a record should
issue here was implemented, the campus                not necessarily preclude us from reaching
was anything but a non-public forum for               a conclusion on the merits of a case.
members of the public not associated with             Grace is instructive: ‘‘ ‘[p]ublic places’ his-
the university.’’). If created after the en-          torically associated with the free exercise
actment of the Policy, it is possible the             of expressive activities, such as streets,
University intended a purpose not inher-              sidewalks, and parks, are considered, with-
ently compatible with expressive conduct.             out more, to be ‘public forums.’ ’’ 461 U.S.
However, the record is conspicuously si-              at 177, 103 S.Ct. 1702. This view is but-
lent on this issue and, indeed, why the               tressed by Frisby, which states, ‘‘[n]o par-
spaces were designated as such in the first           ticularized inquiry into the precise nature
instance.                                             of a specific street is necessary; all public
                                                      streets are held in the public trust and are
   The Court, however, does acknowledge               properly considered traditional public
the spaces at issue have historically and             fora.’’ Frisby, 487 U.S. at 481, 108 S.Ct.
traditionally been used by University and             2495; see also Kokinda, 497 U.S. at 744 n.
Non–University Entities.11 The Court fur-             2, 110 S.Ct. 3115 (Brennan, J., dissenting)
ther recognizes ‘‘college campuses tradi-             (‘‘[W]hen citizens are going about their
tionally and historically serve as places             business in a place they are entitled to be,
specifically designated for the free ex-              they are presumptively entitled to
change of ideas.’’ Ante at 979. Indeed,               speak.’’).
the Court recognizes a historical and tradi-             While Frisby does not stand for the
tional use of public universities and col-            proposition every sidewalk, street or park
leges by non-students and students alike is           located on government property is a public
to discuss issues of public significance dur-         forum, it does suggest a heavy burden to
ing times of turmoil. The Court, however,             prove otherwise. Frisby, read in light of
does not suggest where this speech histori-           Grace and Kokinda, suggest there is a

11. While the Court uses its analysis of the             ysis applies equally to determine whether the
  historical and traditional use of the spaces to        spaces are traditional public fora or non-tra-
  determine whether the spaces are designated            ditional public fora.
  public fora or non-public fora, the same anal-
990                       444 FEDERAL REPORTER, 3d SERIES

presumption of public streets, sidewalks,              Here, the University failed to produce
and plazas being associated with expres-            evidence which would establish anything
sive conduct, wherever they are located,            other than a traditional public forum re-
are presumed to be traditional public fora,         garding the purposes for which the Union
unless proved otherwise. While other                Mall, Peace Fountain, and Brough Com-
spaces may constitute traditional public            mons were created or regarding the his-
fora, see ACLU of Nev., 333 F.3d at 1099            torical and traditional uses of those
n. 6, these are the spaces the case law             spaces.12 Accordingly, I would conclude
presumes to be traditional public fora.             the University failed to meet its burden to
   Given the sparse record in the instant           produce evidence sufficient to rebut Bow-
case, it is incumbent upon us to determine          man’s prima facie showing the spaces at
a framework for proving whether a partic-           issue are traditional public fora.13 Never-
ular space is a traditional public forum.           theless, this does not end the inquiry. A
Given the presumption established by                determination must still be made whether
Grace and Frisby, we should permit a                the regulations comport with the standard
prima facie showing of a traditional public         of scrutiny applied to regulation of tradi-
forum to be made when a plaintiff estab-            tional public fora.
lishes the space at issue is a public street,
sidewalk, or plaza associated with expres-                                V
sive activity. Here, Mr. Bowman has                   Although I disagree with the Court’s
clearly done so.                                    forum analysis and failure to place appro-
   When a plaintiff makes a prima facie             priately the burden of rebuttal on the
showing a space is a traditional public             University, I agree with the ultimate dis-
forum, the defendant should bear the bur-           position of this case because the advance
den to produce objective evidence of the            notice and permit requirements, as well as
(1) physical characteristics, (2) original          the dead day restrictions, imposed by the
purpose, or (3) historical and traditional          University pass constitutional muster un-
use of the space which would rebut plain-           der the traditional public forum analysis,
tiff’s prima facie showing.                         while the five day limitation does not.14

12. That the University has restricted speech        than the Union Mall or the Peace Fountain.
  for over a decade does not establish that those    Brough Commons is unique even among the
  restrictions comport with the greater history      other two public places because it is located
  of the spaces or their inherent compatibility      at the intersection of two public streets and is
  with expressive purposes. Indeed, although a       not separated from the city sidewalks and
  University may attempt to change the charac-       public thoroughfares by a fence or other clear
  ter of a traditional public forum, it can only     demarcation. The record establishes a pas-
  do so legitimately by changing the physical        serby would not know she had entered a
  characteristics of the space-it may not do so      ‘‘special enclave’’ with reduced protections
  by fiat. See Lee, 505 U.S. at 700, 112 S.Ct.       for expressive conduct once she passed onto
  2701 (Kennedy, J., concurring); Kokinda, 497       the Brough Commons area. See Grace, 461
  U.S. at 743, 110 S.Ct. 3115 (Brennan, J.,          U.S. at 179–80, 103 S.Ct. 1702; Initiative and
  dissenting) (‘‘Public access is not a matter of    Referendum Inst. v. United States Postal Serv.,
  grace by government officials but rather in-       417 F.3d 1299, 1313–14 (D.C.Cir.2005). Un-
  herent in the open nature of the locations.’’).    der the case law which speaks directly to this
                                                     issue, Brough Commons is a traditional pub-
13. The Court fails to analyze the differences       lic forum.
  between the three areas, including those relat-
  ed to public perception, which might counsel      14. Although the same scrutiny is applied in
  a different outcome for the Brough Commons          cases involving traditional public fora and
            PEDIATRIC SPEC. CARE v. ARK. DEPT. OF HUMAN SERV.                                       991
                                   Cite as 444 F.3d 991 (8th Cir. 2006)

See Grayned, 408 U.S. at 118–19, 92 S.Ct.             is a ‘‘manner’’ restriction which passes con-
2294 (noting the city can restrict the pub-           stitutional muster).
lic’s expressive activity on public side-                Similarly, the dead day ban is a time
walks adjacent to a school if the conduct             restriction which serves a significant gov-
‘‘materially disrupts classwork or involves           ernment interest in ensuring proper study-
substantial disorder or invasion of the               ing and testing conditions and is narrowly
rights of others’’).                                  tailored to those interests.15 See PeTA,
   Although the Court’s reasoning as to               298 F.3d at 1204–05.
Bowman’s proposed leafleting and silent                 Based on such reasoning as to the na-
speech activities comes close to upholding            ture and status of the Union Mall, Peace
improper prohibitions on speech based                 Fountain, and Brough Commons, which, I
upon a feared reaction, see Tinker, 393               believe, should be recognized as traditional
U.S. at 508–09, 89 S.Ct. 733; PeTA, People            public fora, I do, nonetheless, concur in the
for the Ethical Treatment of Animals v.               ultimate outcome of this case.
Rasmussen, 298 F.3d 1198, 1206 (10th Cir.
2002) (citing Cox v. Louisiana, 379 U.S.
559, 560, 85 S.Ct. 476, 13 L.Ed.2d 487
(1965)), given the University’s limited re-                               ,
sources, the advance notice and permit
regulations nevertheless serve significant
governmental interests in protecting Uni-
versity Entities against unwanted solicita-           PEDIATRIC SPECIALTY CARE, INC.;
tion and ensuring proper crowd control                 Child & Youth Pediatric Day Clinics,
capabilities, while being narrowly tailored            Inc.; Family Counseling & Diagnostic
to those interests. See Glover, 762 F.2d at            Clinic; Tomorrow’s Child Learning
1201–03 (concluding solicitation restriction           Center, LLC; D & D Family Enter-

  designated public fora, see, e.g., Goulart, 345        In any event, the spaces in which the contests
  F.3d at 250, I disagree with the Court’s im-           occur might not be considered either tradi-
  plicit suggestion there is a lessened burden           tional public fora or unlimited designated
  for designated public fora because the Univer-         public fora and the limitations imposed re-
  sity may simply redesignate the space at issue.        strict both student and non-student speech. I
  While the University may redesignate the               further question the Court’s speculation Uni-
  space if the space is deemed a designated              versity Entities’s expressive activities, which
  public forum, such a redesignation cannot              may include speech by individuals not associ-
  serve to avoid review under the designated             ated with education, are more attuned to the
  public forum standard, nor can it be applied           needs of the University for quiet during the
  as a post hoc rationalization for an unconsti-         dead days than the public. Nevertheless, the
  tutional restriction of expressive conduct.            differential treatment raised by Bowman does
                                                         not serve to make the regulation improper
15. Bowman has raised concerns regarding                 under a traditional public forum analysis be-
  the distinction between University and Non–            cause it serves significant government inter-
  University Entities’ speech on dead days. I            ests and is narrowly tailored to those interests
  disagree with the Court’s treatment of this            since it minimizes the distractions faced by
  argument insofar as the limitations on athletic        students during exam period and leaves open
  contests and plant maintenance are highly              ample other times during which expressive
  distinguishable. Maintenance work is not a             activities may occur. Further, such claims
  protected expressive activity. Limitations on          are more properly raised under the Equal
  athletic contests do limit speech, but it is           Protection Clause than under the First
  unclear from our precedent whether such                Amendment. See Kokinda, 497 U.S. at 733,
  speech is actually deemed protected speech.            110 S.Ct. 3115.

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