After waiting months for Attorney General Jeff Sessions to follow through on his promise to take action against abuses of First and Fourteenth Amendment rights perpetrated by university administrations, Sessions delivered. On Thursday, the DOJ filed a Statement of Interest into the lawsuit brought against UC President Janet Napolitano by the Berkeley College Republicans and the Young America’s Foundation (YAF), who are represented by RNC Committeewoman Harmeet Dhillon. The statement is clear: UC Berkeley violates First Amendment rights, and the College Republicans’ case should not be dismissed.
Campus free speech issues haven’t been the focal point of a DOJ Statement of Interest for nearly five decades, but all of that is changing.
The DOJ’s Statement of Interest asserts that the Berkeley College Republicans and YAF’s amended complaint “adequately pleads that the University’s speech restrictions,” as outlined in the Major Event and High-Profile Speaker Policies, “violate the First Amendment, and therefore, at least to that extent, the Court should deny Defendants’ motion to dismiss.”
The DOJ maintains that the U.S. “has a significant interest in the vigilant protection of constitutional freedoms in institutions of higher learning”:
As the Supreme Court has noted, “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.’”Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). In recent years, however, many institutions of higher education have failed to answer this call, and free speech has come under attack on campuses across the country. Such failure is of grave concern because freedom of expression is “vital” on campuses. Shelton v. Tucker, 364 U.S. 479, 487 (1960). Indeed, “our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–509 (1969).
The DOJ rightly claims “it is in the interest of the United States to ensure that State-run colleges and universities do not trample on individuals’ First Amendment rights” because this could undermine the Department of Education’s mission “to ensure that ‘institution[s] of higher education . . . facilitate the free and open exchange of ideas.’”
“Under the facts as alleged, it appears that the University repeatedly moved the goal posts for BCR,” in a capricious manner, the Statement Of Interest states, “making it all but impossible for the event to take place” due to discriminatory time, place, and manner restrictions.
A focal point of the lawsuit is centered on the classification of which type of public forum a public university campus is. The DOJ states, “Plaintiffs contend that they are designated public fora, but the University claims that they are limited public fora.” But in the end, the DOJ says this designation is completely irrelevant because “the University’s High-Profile Speaker Policy and Major Events Policy would be unconstitutional in either type of forum.” Why? Because “both Policies suffer from the same constitutional defect: they grant University administrators unbridled discretion to decide when, how, and against whom to apply the Policies. As the Interim Vice Chancellor admitted, the Policy applied only to ‘high-profile events featuring potentially controversial speakers.’”
Harmeet Dhillon, who is representing both BCR and YAF, strongly agreed with the DOJ’s sentiments. “It is gratifying to see both the Department of Justice and General Counsel of the Department of Education agree with our position in court that strict scrutiny must apply to the University’s speech codes, which in turn constitute a prior restraint on fundamental rights guaranteed by the First Amendment,” said Dhillon.
While the DOJ seems to be in strong support of the plaintiffs, important questions remain open that may affect the case. The 9th may refuse to recognize the University as a designated public forum, and retain the position that the university is a limited public forum and accept the policies enacted by UC Berkeley. After all, this is the hyper-liberal 9th district, where all Trump policies go to die.
Another key detail from the SOI: “The United States does not advance any position as to whether the University’s interim adoption of the Major Events Policy moots Plaintiffs’ claims. Nor does the United States take a position as to whether the Defendants are entitled to qualified immunity.”
Because the event policies have been continually changing during the course of the lawsuit, which initially led to the dismissal of the plaintiffs’ first complaint, the 9th could use that key detail to throw out the suit, despite the fact that many of the very same aspects that give “unbridled,” arbitrary powers to university administrators in determining restrictions on events remain in place.
When Sessions first promised to file Statements of Interest into campus free speech issues, I wrote that the Justice Department “is absolutely justified in this undertaking because there is no greater threat to our Republic than the maturation of a generation that is convinced discourse and differing opinions are equatable to ‘violence,’ ‘assault,’ and ‘rape’ … The result of sheltering ‘fragile egos’ should terrify us.”
As president of the Berkeley College Republicans, I express my sincerest gratitude to the DOJ for filing a Statement of Interest into the lawsuit of discriminatory practices in stifling the guaranteed constitutional right of free speech brought against UC Berkeley. I also thank Harmeet Dhillon and Dhillon Law Group for their hard work on our case, and strongly encourage the DOJ to continue investigating and shedding national light onto issues of campus free speech, because if we continue to allow my generation to arbitrarily pervert reality, the result will be the further degradation of higher education. A poorly educated, or generally misinformed public, can lead to the breakdown of civility in our Republic. ANTIFA, BAMN, and other violent, anarcho-communist groups are propagating the notion of justifiable political violence in the name of “tolerance,” and my generation is appeasing them and supporting them.
Bradley Devlin is a student at the University of California Berkeley studying Political Economy and serves as the president of the Berkeley College Republicans.