Significant Education Law Developments, 2006-2007
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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 events. 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). fora’’; 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- versity; (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. I. 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 Entity. 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 reasonable. ‘‘Forbes’’); United States v. Kokinda, 497  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  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. Cir.1995). 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-  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  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.  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,  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  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  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  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-  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  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- V. 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- speak’’). 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 IV 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.