March 15, 2023
URGENT
Via Email Only
Dr. Beth McCuskey
Vice Provost for Student Life, Purdue
1225 Third Street, Suite 160 West Lafayette, IN 47907 bmccuske@purdue.edu
Dr. Katie Sermersheim
Associate Vice Provost and Dean of Students
656 Oval Drive, 2nd Floor West Lafayette, IN 47907-2086 ksermer@purdue.edu
Steven R. Schultz, Esq. General Counsel
610 Purdue Mall West Lafayette, IN 47907 legalcounsel@purdue.edu
Re: MichaelKnowlesEventonMarch23,2023
Dear Dr. McCuskey, Dr. Sermersheim, and Mr. Schultz:
Young America’s Foundation (“YAF”) and the College Republicans at Purdue University (“PUCR”) have scheduled an expressive event, featuring speaker Michael Knowles, to occur next Thursday, March 23, 2023, at Purdue Memorial Union. These two groups have entered a contract with Purdue University (“Purdue”) for the event to occur on March 23; the North Ballroom has long been reserved for that date; and the event planning form was submitted back on December 9, 2022. Yet, Purdue administrators have recently thrown into question whether the event will occur; they have told the two groups they cannot yet advertise the event (despite it being only one week away); and they are improperly demanding that PUCR pay security costs that Purdue itself is obligated to pay as a condition to hold the event. Given these difficulties, YAF and PUCR have asked Alliance Defending Freedom to present this letter of concern and request they be given assurances that the event will take place
Dr. McCuskey, Dr. Sermersheim and Mr. Schultz
March 15, 2023
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on March 23 as scheduled (and as earlier agreed); that they can advertise now; and that Purdue will indeed bear the security expenses it is contractually required to pay.
By way of introduction, Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith and beliefs.1 We are dedicated to ensuring that students may exercise their rights to speak, associate, and learn on an equal basis with all other students regardless of their viewpoints.
SITUATION
Purdue entered a contract with YAF and PUCR for the Michael Knowles event to occur on March 23, 2023. That contract, a copy of which is attached, provides that “the event is open and available to the public free of charge,” “[i]t is the intent of all parties that every seat be filled,” and Purdue “shall remove . . . individuals whose activities are actively disrupting the operation of said event.” Importantly, a Security Rider to the contract makes plain that Purdue “will provide security wands and/or metal detectors for use at the Event,” and also that Purdue “agrees to provide all necessary funding for the security measures.” (Emphasis added). Although there is a cancellation provision, its terms are limited and do not apply here.
YAF and PUCR have taken many steps to ensure that the March 23 Michael Knowles Event is a successful event, going far beyond the responsibilities required of them under the contract. PUCR submitted an event planning form on December 9, 2022, providing Purdue with the name, description and other details of the event.
1 Alliance Defending Freedom has consistently achieved successful results for its clients before the United States Supreme Court, including fourteen victories before the highest court since 2011. See, e.g., Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (representing Thomas More Law Center in consolidated case; striking down state law requiring charities to disclose identities of donors to government authorities); Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (student free speech); March for Life Educ. & Def. Fund v. California, 141 S. Ct. 192 (2020); Thompson v. Hebdon, 140 S. Ct. 348 (2019) (overturning ruling upholding a law limiting political contributions); Nat’l Inst. of Fam. & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (upholding ADF client’s free speech rights against the State of California); Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n, 138 S. Ct. 1719 (2018) (upholding ADF client’s First Amendment rights); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (upholding ADF client’s First Amendment rights); Zubik v. Burwell, 578 U.S. 403 (2016) (representing Geneva College and Southern Nazarene University in two consolidated cases; upholding ADF clients’ First Amendment rights); Reed v. Town of Gilbert, 576 U.S. 155 (2015) (unanimously upholding ADF client’s free-speech rights); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (representing Conestoga Wood Specialties Corp. inconsolidatedcase;striking downfederal burdenson ADFclient’s free-exercise rights); Town of Greece v. Galloway, 572 U.S. 565 (2014) (upholding a legislative prayer policy promulgated by a town represented by ADF); Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) (upholding a state’s tuition tax credit program defended by a faith-based tuition organization represented by ADF)
Dr. McCuskey, Dr. Sermersheim and Mr. Schultz
March 15, 2023
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PUCR applied for, and received, an $8,750 SOGA grant for the event. They reserved an appropriate room the North Ballroom of the Purdue Memorial Union. And they have remained ready and willing to cooperate with Purdue to ensure a successful, well-attended and educational event.
Despite YAF’s and PUCR’s best efforts to host a successful event, Purdue administrators appear to be attempting to derail it. First, they told PUCR on March 9 that it could not advertise the event until the planning form submitted in December received their “final approval.” Then, they held a meeting with YAF and PUCR on March 14 and presented a long list of roadblocks they said must be addressed before any “final approval” can be granted. And today, they scheduled a follow-up meeting with PUCR for Tuesday, March 21, suggesting that they will be withholding “final approval” at least until then; that no one will know whether this event will even occur until at most two days before it is scheduled; and that YAF and PUCR cannot advertise an event about which they notified Purdue back on December 9 and for which Purdue is under a binding contractual obligation to permit.
Indeed, one of the conditions Purdue is attaching to its “final approval” is a commitment by PUCR to pay all security expenses, including $237 for security wands, $666 for personnel to operate the security wands, and $4,350 for police personnel at the event. Notably, this demand is wholly at odds with the plain terms of the contract that require Purdue to “provide all necessary funding for the security measures,” and a further commitment that Purdue “will provide security wands and/or metal detectors for use at the Event.” Moreover, the number of officers at the event for which Purdue is seeking to charge PUCR is not based only on room size or attendance but also more specifically on an assessment made by the Purdue University Police Department (“PUPD”) of the extent of expected disruption and information that PUPD obtained from the University of Buffalo where Michael Knowles recently spoke.
CONCERNS
The University’s policies and its application as described raise serious legal concerns. First, the security fee assessment against PUCR violates the First Amendment’s prohibitions against viewpoint discrimination and the heckler’s veto Second, the security fee assessment violates the University’s contract. Third, the approval policies and processes violate the First Amendment’s prohibition on viewpoint discrimination via “unbridled discretion.”
Dr. McCuskey, Dr. Sermersheim and Mr. Schultz
March 15, 2023
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I. The security fee assessment against PUCR violates the First Amendment’s prohibition against viewpoint discrimination and the “heckler’s veto. ”
The security fee assessment violates the prohibition on viewpoint discrimination. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”2 Nor may the government engage in viewpoint discrimination, which is “an egregious form of content discrimination.”3 One way in which the government engages in viewpoint discrimination is by granting unbridled discretion to an administrator to choose when a burden on speech (such as a security fee) applies without being limited by an exclusive list of content and viewpoint neutral criteria. The Supreme Court held in ForsythCty.,Ga.v.NationalistMovement that “[t]he First Amendment prohibits the vesting of such unbridled discretion” to discriminate between viewpoints “in a government official.”4 According to the Court, “[a] government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.”5 The “decision [of] how much to charge for police protection . . . or even whether to charge at all” cannot be left up to administrators, or their evaluation of how hecklers might respond to speech.6
Purdue allows arbitrary assessments of security fees based on the content of the speaker’s expression. While set security fees regardless of the content of the speech may be permissible (e.g., every reservation no matter the content must pay, for example, $200), Purdue does not have a set security fee for the use of the North Ballroom. Nor does it have a set security fee based on the number of seats to be filled. The fee here is based on subjective evaluations of how hecklers and protestors may respond to PUCRs and Mr. Knowles’s speech. The discretion to charge fees (and here the decision to charge fees) without objective content and viewpoint neutral criteria violates the First Amendment.
The security fees are an unconstitutional heckler’s veto. Speech that is “met by violence or threats or other unprivileged retaliatory conduct by persons offended by
2 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).
3 Id. at 829.
4 Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 133 (1992).
5 Id. (quotation marks and citation omitted); see also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1042 (9th Cir. 2009) (noting that unbridled discretion to impose security fees indicated possible contentbased discrimination).
6 Forsyth Cnty., 505 U.S. at 133.
Dr. McCuskey, Dr. Sermersheim and Mr. Schultz
March 15, 2023
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[it] cannot lawfully be suppressed because of that conduct. Otherwise free speech could be stifled by the speakers opponents’ mounting a riot . . . . ”7 Charging security fees based on the content of speech is exactly the type of “suppression” the First Amendment does not permit.8
In sum, charging PUCRs $4,350 for police personnel at the event is “expensive speech” not “free speech.” Thus, the security fee assessment violates the constitution in two ways: 1) it grants unbridled discretion to administrators to censor disfavored speech; and 2) it’s a quintessential heckler’s veto.
II. The security fee assessment is a breach of contract.
The contractual terms for the event are clear: “[Purdue University] will provide security wands and/or metal detectors for use at the Event” and “agrees to provide all necessary funding for the security measures.” Thus, the last-minute attempt to delay or cancel the event by putting these costs on PUCR violates the terms of Purdue’s contract.
III. The approval policies and processes violate the First Amendment’s prohibition on viewpoint discrimination via “unbridled discretion.”
The procedural delays and censorship of advertising for this event also raise serious concerns regarding the unbridled discretion afforded administrators to suppress disfavored speech and promote favored expression.9 The Publicity policy prohibits advertising “until an Event Planning Form has been given final approval.”10 But nothing in the applicable policies keeps administrators from withholding final approval for disfavored events until it is too late.11
7 Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011)
8 Cf. Forsyth Cnty., 505 U.S. at 133.
9 [T]he Supreme Court has made clear that when a decisionmaker has unbridled discretion there are two risks: First, the risk of self-censorship, where the plaintiff may edit his own viewpoint or the content of his speech to avoid governmental censorship; and second, the risk that the decisionmaker will use its unduly broad discretion to favor or disfavor speech based on its viewpoint or content, and that without standards to guide the official's decision an as-applied challenge will be ineffective to ferret out viewpoint discrimination. Both of these risks threaten viewpoint neutrality.
Southworth v. Bd. of Regents of Univ. of Wisconsin Sys., 307 F.3d 566, 578–79 (7th Cir. 2002)
10 Purdue University, 2022-23 University Catalogue: Student Activities and Organizations Publicity Policy, https://catalog.purdue.edu/content.php?catoid=15&navoid=19106&hl=%22Posting+#publicity (last accessed March 15, 2023)
11Purdue University, Student Organizations Event Approval Process, https://www.purdue.edu/business/risk_mgmt/pdf/Student%20Organization%20Event%20Approval%20Process%20
Dr. McCuskey, Dr. Sermersheim and Mr. Schultz
While some flexibility may be warranted for large events, no administrator should have leeway to withhold “final approval” for an event scheduled over three months in advance until mere days before the event all the while engaging in the prior restraint of prohibiting advertising for the event. This process, on its face, does not meet constitutional requirements that regulations on expression (in addition to being viewpoint-neutral) contain “specific and concrete standards” that guide the decisionmaker.12 Vague assertions of interest such as “public welfare, peace, safety, health, decency, good order, morals or convenience” do not suffice to guide decision makers.13
Finally, the attitude of the Purdue administrators handling the Michael Knowles event has been sharply at odds with Purdue’s professed commitment to freedom of expression. They sat on the event planning form for many months. They waited until one week before the event to reveal a long laundry list of roadblocks that needed to be checked before the event could be advertised. And when YAF and PUCR pointed out that one of the roadblocks was manifestly inconsistent with the terms of Purdue’s written agreement, they responded that the contract is not binding on Purdue and can be changed unilaterally as needed. They have, in short, acted as if this expressive event scheduled for March 23 holds no importance whatsoever.
REQUEST
In light of the concerns expressed above, we ask that Purdue take all necessary steps to permit the Michael Knowles Event to proceed as scheduled on March 23. That would include confirming that the event has “final approval” and that YAF and PUCR may advertise it. That would also include acknowledging that Purdue will cover the costs of security wands and university police officers at the event. At the same time, YAF and PUCR will continue to work with Purdue as necessary and appropriate to ensure a successful, well-attended, and educational event. While Purdue publicly “guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn,” we ask that it stand behind that guarantee in this instance.
West%20Lafayette%20Campus%20-%20NEW.pdf?_ga=2.1711473.1523066098.16788919841563402355.1678891984 (last accessed March 15, 2023)
12 Southworth II, 307 F.3d at 580.
13 Cf. Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 156 (1969)
Dr. McCuskey, Dr. Sermersheim and Mr. Schultz
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Since the Michael Knowles event is scheduled for next Thursday, March 23, we would appreciate receiving your response to this request by the close of business on Friday, March 17. If we do not hear from you by that time, we will be forced to consider taking other action to resolve these concerns and protect YAF’s and PUCR’s interests and their commitment to free speech.
Very truly yours,
cc: Dr. Martia King
Todd Wetzel
Mike Mifflin
/s/ Philip A. Sechler Senior Counsel Center for Academic FreedomALLIANCE DEFENDING FREEDOM
PSECHLER@ADFLEGAL.ORG (202) 302-3201