Southeastern Louisiana University announced on Tuesday that it would rescind a policy of requiring speakers or demonstrators planning campus appearances to pay a security fee—a practice that the U.S. Court of Appeals for the Fifth Circuit had ruled against last week.
The presence of a controversial speaker on a college campus may call for a security force, but administrators cannot at their sole discretion determine the size of that force and pass on the corresponding fee to the speaker or sponsoring organization, a three-judge panel of the court ruled in an opinion issued on July 27.
In doing so, the Fifth Circuit panel overturned part of a federal judge's preliminary ruling in a lawsuit that is still pending between Jeremy Sonnier, a traveling evangelist, and Southeastern Louisiana, a public institution in Hammond, La.
Mr. Sonnier, who is represented by the Alliance Defense Fund, a coalition of Christian lawyers, had asked the lower-court judge to bar administrators from enforcing the policy while the case is pending, arguing that numerous provisions of the university's policy for outside speakers violated his constitutional rights.
Southeastern Louisiana's policy requires individuals not affiliated with the university to apply seven days in advance for a permit to demonstrate or assemble publicly, submitting their names and other personal information, including date of birth and Social Security number. Other provisions of the policy limit all demonstrations or public assemblies to certain areas on the campus and restrict each speaker's access to two hours a week. The university had also, until now, charged speakers for any security detail that administrators thought necessary.
In March 2009, Judge Ivan L.R. Lemelle of the U.S. District Court in New Orleans rejected all of Mr. Sonnier's challenges to the policy and denied his request to block the university's enforcement of it. The evangelist appealed that decision to the Fifth Circuit Court.
Split Decision on Appeal
The appellate-court panel voted 2-to-1 last week to uphold most of Judge Lemelle's decision, but it unanimously overturned his ruling on the challenge to the security-fee provision. The panel's opinion maintained the university's right, while Mr. Sonnier's case is pending, to enforce all provisions of its free-speech policy except the assessment of a security fee.
In the majority opinion, Judge W. Eugene Davis of the Fifth Circuit Court wrote that considering the university's policy on its face—not as applied to Mr. Sonnier—the provisions involving time, place, and manner of speech were reasonable in at least some circumstances. Knowing the identity of a speaker, requiring advance notice, restricting access, and imposing weekly limits all help the university protect its interests, Judge Davis wrote.
However, with respect to the fee, "no objective factors are provided for the university to rely upon when making such a determination," the opinion states. Determining and levying the fee would, therefore, give administrators "unbridled discretion" inconsistent with a U.S. Supreme Court decision from 1992.
The Alliance Defense Fund was pleased with the panel's opinion regarding the security fee but plans to ask the full appellate court to re-examine the other parts of Mr. Sonnier's appeal. The three-judge panel should have considered not whether Southeastern Louisiana's policy could be valid in some circumstances but whether its restrictive provisions were narrowly tailored to meet the university's interests, said Nathan W. Kellum, senior counsel for the group. "If the court would apply the right standard, they would come up with the right result," Mr. Kellum said.
For now, one result is that Southeastern Louisiana will stop charging security fees. The university has removed the security-fee provision from its speech policy, it said in a written statement. The statement also defends the policy's other provisions: "These guidelines were instituted with the intention of protecting the academic integrity of the institution and were in no way meant to stifle the free exercise of speech."
Mr. Sonnier's case can now resume in the federal court, although his appeal for the full appellate court to reconsider last week's decision could delay any trial.
Meanwhile, the Fifth Circuit's stance on university-imposed security fees may influence other cases. The Foundation for Individual Rights in Education, an advocacy group, has defended student organizations against such fees, proposed in connection with political speakers, at the University of Colorado at Boulder, as well as the University of California at Berkeley and at Los Angeles.