U students alleging viewpoint bias in space allocation lose appeal

A student organization at the University of Minnesota alleged that the university engaged in viewpoint discrimination with its space policies regarding student groups. On appeal, the 8th Circuit upheld summary judgment for the university in a ruling filed July 25, but the concurrence suggested that the student organization could have demonstrated that the university abandoned the limited public forum’s original purpose.

Coffman Memorial Union is the student union at the University of Minnesota in Minneapolis. The second floor is a space that is reserved for registered student organizations (RSOs). It was renovated in 2013 and redesigned to include several lounges. Those lounges were assigned to 13 RSOs, including nine cultural centers. The nine cultural centers are the Al-Madinah Cultural Center, American Indian Student Cultural Center, Asian-American Student Union, Black Student Union, Disabled Student Cultural Center, Feminist Student Activist Collective, Mi Gente Latinx Student Cultural Center, Minnesota International Student Association, and the Queer Student Cultural Center. Prior to allocating the lounge space, the Board of Governors concluded that most students wanted the nine cultural centers to have designated space in Coffman.

The university will open the space to other RSOs only if there is a vacancy. Current tenants can retain their lounge space provided that they comply with the renewal criteria. None of the RSOs has failed to comply with the criteria, so there has been no vacancy since 2013.

Viewpoint Neutrality Now! (VNN) is a University of Minnesota student organization. VNN sued, asserting that the university’s exclusive provision of lounge space to the cultural centers violates the First Amendment. It argued that the university engaged in viewpoint discrimination when it provided lounge space to the nine cultural centers rather than the other RSOs.

The district court granted summary judgment to the university, finding that VNN conflated content and viewpoint discrimination by arguing that providing space to the cultural centers at the expense of other RSOs was viewpoint discrimination, as every limited forum includes some and excludes others. It also argued that, even if the university believes that supporting cultural centers is a worthwhile goal, it still does not constitute viewpoint discrimination.

On appeal, VNN argued that the cultural centers have actively participated in expressive activities, advocating for various issues at numerous protests and events and that the university gives the nine incumbent cultural centers an opportunity for lounge space each year without giving other RSOs an opportunity to apply.

“It’s egregious viewpoint discrimination to have a Queer Cultural Center for decades, and not offer a contrasting view,” argued Erick Kaardal, attorney at Mohrman, Kaardal & Erickson. “The university is indirectly sponsoring speech, and by not having an open process where other groups with other ideologies and other perspectives will apply, the university is sponsoring this certain speech, a certain perspective.”

However, the court found that no reasonable jury could find that the university engaged in viewpoint discrimination. “VNN is correct that the cultural centers engage in expressive activity; but it does not point to any record evidence suggesting that the university chose the cultural centers because of the centers’ positions on particular topics,” wrote Judge Bobby Shepherd. “The absence of such evidence is fatal to VNN’s claim.”

Carrie Ryan Gallia, senior associate general counsel at the Office of the General Counsel at the University of Minnesota, asserted that VNN “appeared to argue that the university’s decision to create a limited-public forum for cultural centers was itself viewpoint discrimination.”

“But this argument is premised on the very kind of illegitimate stereotyping equating identify with viewpoint that the Supreme Court has repeatedly found unconstitutional,” Gallia added.

The court also maintained that the decision to give lounge space to the cultural organizations was a status-based distinction rather than a viewpoint-based distinction. It rejected VNN’s argument that a particular minority group holds a specific viewpoint. “We are unconvinced,” Shepherd asserted. Nor did the court accept VNN’s characterization of the groups as “obviously ideologically from the left.”

“The refusal to provide an avenue for other RSOs to obtain lounge space, without more, does not support the conclusion that the university has engaged in viewpoint discrimination,” Shepherd concluded.

Additionally, the court found that the university’s allocation of lounge space was reasonable. While VNN argued that a space allocation process that would allow RSOs to cycle through the lounge spaces would be more reasonable, the court concluded that the university’s process was not unreasonable.  “There are ample alternative channels for communication, including use of the second floor’s mixed-use space, reservable space on Coffman’s ground floor, and reservable classroom meeting space around campus.”

Judge L. Steven Grasz, who concurred, asserted that “the record suggests that university may have allocated space to an RSO that is ideological, rather than cultural” but that VNN failed to develop the record that showcased this this.

Grasz cited the example of the group, formerly known as the “Women’s Student Activist Collective,” that became the “Feminist Student Activist Collective,” which centers programming “around intersectional feminism, a feminist theory which states that all oppression is intertwined.” Grasz suggested that VNN could have shown that the university abandoned the limited public forum’s original purpose in granting this group space.

“This sounds like an RSO dedicated to advancing an ideological viewpoint; a viewpoint the university has favored by granting it a much-coveted, semi-permanent, rent-free office space, to the exclusion of other RSOs and their viewpoints,” Grasz wrote, though granting that the group’s name and mission statement might not mean much on their own.

“Today’s opinion should not be read as standing for the proposition that public universities may escape legal scrutiny by cloaking viewpoint discrimination in the guise of a permissible content-based limitation,” Grasz avowed.