While the University of South Alabama continues to see isolated protests over Second Amendment issues, officials are quietly finalizing a settlement with a student group that sued officials for violating the First Amendment.

Students for Life USA landed a partial victory in federal court back in February after U.S. District Court Judge William Steele ruled the university violated the first amendment rights of the pro-life organization through vague policies limiting free speech on campus.

President Tony Waldrop, Vice President of Student Affairs John Smith, Assistant Vice President of Student Affairs Michael Mitchell and John Steadman, dean of the College of Engineering, were named as co-defendants in the lawsuit filed in April 2014.

The litigation began after Students for Life was denied permission to use a piece of property at the corner of University Boulevard and Old Shell Road near Shelby Hall for an “anti-abortion” display known as a “cemetery of the innocents.”

The University of South Alabama. (southalabama.edu)

The University of South Alabama. (southalabama.edu)

Instead, the group was told they could only host their display in the “Free Speech Zone.” The zone is a small space near the student center that, at the time, was the only location USA policy permitted “expressive activity” on campus.

Students for Life was represented by the Alliance Defending Freedom, an Arizona-based Christian legal group describing its purpose as, “advocating for your right to freely live out your faith.”

ADF has litigated similar cases all over the country including several targeting public universities. When the case against USA was first filed two years ago, ADF Senior Legal Counsel David Hacker said, “Universities are supposed to be the marketplace of ideas.”

“Free speech should not be censored or limited to a ridiculously small area on campus, nor should students need permission to exercise their constitutionally protected freedom of speech,” he continued.

Because the settlement isn’t finalized, ADF attorneys, representatives of Students for Life USA and officials with the university all declined the opportunity to comment on this report.

However, changes in USA’s policy and Judge Steele’s 40-page ruling gives some insight into the fallout from the lawsuit. One immediate change happened in August 2014, when USA rewrote its policy on areas approved for “expressive demonstrations.”

“The second policy” — implemented only four months after Students for Life filed its lawsuit — greatly expanded the locations that can be used for student speech, but still prohibits expressive demonstrations within most of the area between the street side of campus buildings and the public sidewalks paralleling Old Shell Road and University Boulevard.

In court filings, it was uncontested that USA’s aim was to prevent students from utilizing that space in expressive demonstrations so as to “avoid being perceived by the Mobile community as taking sides on any controversial political or social issue.”

However, several boundaries identifying the prohibited space were vaguely defined in the new policy, which made it difficult even for administrators to say exactly where free speech was and was not allowed on campus.

In court depositions, Smith and Waldrop contradicted answers given by Mitchell on more than one occasion with regard to whether nonbuilding structures such as parking lots were approved for free speech.

In his ruling, Steele said because there weren’t reasonable and definite standards in the official policy, it left “the administration with unconstitutionally broad discretion” over where students could exercise their First Amendment rights.

“The problem here is not just that the University officials charged with understanding and enforcing the second policy don’t know what it means; the more serious concern is that, by the uncontroverted evidence, there is no authoritative source to which they can turn to resolve such questions — they have only the ambiguous language of the second policy and however they choose to interpret it,” Steele wrote.

While Steele found the university’s policy to be unconstitutionally vague in certain places, his ruling concluded the majority of its limitations were appropriate. His final order listed 21 indicators along the perimeter set in the current policy that were clearly defined, and thus, constitutionally acceptable.

With the exception of those specific 21 areas, Steele’s order permanently prevents USA from enforcing any restriction on speech in that area through the unconstitutional second policy.

It’s likely more clarification of that policy could resolve the issue, but the details of any changes the university plans to make have been under wraps since both parties agreed to a settlement March 25 and the case was dismissed from the court’s docket.

All of the areas outlined in Steele’s ruling can be viewed along with other case documents at lagniappemobile.com.

Claims of viewpoint discrimination fall short
Though the case ended up focusing on the minutiae of student handbook policy, the lawsuit was originally brought over claims of viewpoint discrimination. Originally, Students for Life maintained the “controversial” nature of their “anti-abortion” display advocating their overt pro-life stance motivated the university to limit where they could share their message.

According to USA’s student handbook, “The Lowdown,” university employees are not to “consider the content of expressive activities” when enforcing the policy governing free speech, but Steele said there was evidence to show Dean Steadman did just that when he declined Students for Life’s request to use the area near Shelby Hall in 2013 and 2014.

According to the ruling, when asked about his reasoning for denying requests to host “the cemetery of innocents” in that area, Steadman pointed out Students for Life  “advocates for a position that involves political and social controversy.”

“By focusing on the plaintiff’s ‘position’ [anti-abortion] rather than on the subject matter [abortion], Steadman’s response raises an inference that he considered the plaintiff’s viewpoint regarding abortion in denying permission,” Steele wrote. “By focusing on the controversial nature of the plaintiff rather than on the controversial nature of abortion, Steadman’s response again supports an inference that he considered the plaintiff’s viewpoint regarding abortion.”

Despite that reasoning, Steele said there was also evidence supporting the university’s version of events — that Steadman never discriminated against the viewpoint on the issue but only the appropriateness of the setting under university policy.

Thus, he concluded, neither side was entitled to summary judgment on the claim of viewpoint discrimination against Steadman. Similar allegations against Mitchell were also dismissed.