University of Maryland–Baltimore County Agrees to Change Unconstitutional Policies after Pro-life Group Sues
September 25, 2008
by Luke Sheahan
The Alliance Defense Fund Center for Academic Freedom (ADF-CAF) is embroiled in a lawsuit against the University of Maryland–Baltimore County (UMBC) because the university forced a pro-life student group to move its pro-life display to a nearly deserted part of campus. The following information is taken from ADF-CAF's brief for preliminary injunction filed in the U.S. District Court for Maryland.
Rock for Life–UMBC, a recognized student group at UMBC, planned to host the Genocide Awareness Project (GAP), which displays large signs depicting aborted infants juxtaposed with pictures of historical genocidal massacres. On April 17, 2007, the group reserved space directly in front of the University Center, a prime location for being seen, for the afternoon of April 30.
The university determined that, due to the controversial nature of the event, Rock for Life had to hire a UMBC police officer. But UMBC was going to charge the group a rate of $50 per hour instead of $15 per hour for the usual student security guard. The group objected on the ground that it would be unconstitutional to charge them for extra security simply because their speech was controversial.
UMBC's lawyer told Rock for Life that while UMBC was a public university, it did not have to abide by all of the constitutional strictures required of most public universities. Furthermore, he stated that the disturbing pictures in the GAP display would violate the university's prohibition on "emotional harassment" in the Code of Student Organization Conduct. He thus asserted that the university should move the intended display to the patio area of the Commons, a less visible area of the UMBC campus. The university's Policy on Facilities Use allows the university to "move an event to a different location without notice" and forces the student organization to bear the cost of the relocation.
On April 25, the Associate Director for Student Life told Rock for Life that the display would indeed have to be placed in the patio area of the Commons. This time, the argument was that the signs would pose a "fire hazard," despite the fact that the GAP signs would not be located near any exits, and other organizations had been allowed to display signs in the same area.
On the morning of April 30, as Rock for Life began to set up the GAP display, the Executive Director of the Commons, Eric Engler, and several uniformed UMBC police officers met Rock for Life at the agreed display location on the patio area of the Commons and informed the students that the Vice President for Student Affairs had ordered the GAP display to be moved yet again—to an empty field between the Commons and the library, where few students passed. Two police officers reiterated that the university reserved the right to relocate student events at will.
This unconstitutional policy gave the university the right to arbitrarily move a registered student organization's display, disregarding whatever agreement the organization had made beforehand. UMBC severely inhibited the organization's ability to promote its message to the university community as other student groups could do with their own messages. As the ADF brief points out:
Due to the much lower level of foot traffic through this area, the move substantially impaired Rock for Life's ability to confront students and faculty with its message of the sanctity of human life and to persuade them of the pro-life perspective.
In November 2007, Rock for Life asked for space for a smaller version of the GAP display. In anticipation of the university's concerns regarding the display in front of the University Center, they requested only space in the patio of the Commons. The previous September, the university had held an Involvement Fest at the same location and used more space than what would be required for the GAP display. The university nonetheless told Rock for Life that any future displays would have to be held on the same nearly deserted field on the other side of the Commons building.
The case for viewpoint discrimination against Rock for Life is very nearly ironclad. UMBC clearly used its policies to deny Rock for Life equal access to UMBC's student body in a way that the school did not for other student groups and activities.
On April 2, 2008, ADF filed suit against UMBC on behalf of Rock for Life on the basis of UMBC's violations of the group's First and Fourteenth Amendment rights to free speech and assembly, due process, and equal protection of the law.
In addition, some of the policy language in UMBC's Sexual Harassment Policy, Code of Student Conduct, and Code of Student Organization Conduct, is similar to policy language that has been struck down by federal courts in cases involving Shippensburg University, San Francisco State University, the University of Michigan, Texas Tech University, the University of Wisconsin, and Central Michigan University. The language is simply too broad and too vague to pass constitutional muster. Despite what UMBC's lawyer might say, public universities are bound by all of the strictures of the First Amendment, and they must abide by them.
In August, the university agreed to amend the offending policies. ADF and Rock for Life intend to take the case to trial in order to ensure that UMBC does indeed change its policies and to challenge the university's sexual harassment policy, which also violates the speech rights of UMBC's students.