Settlement reached in free speech case

Seven months after a federal court ruling upheld the constitutionality of the policies that govern student-sponsored events at UC Berkeley, the groups challenging the campus’s management of student-sponsored events have agreed to a settlement that drops their claims that the campus discriminated against speakers on the basis of political viewpoints.

In April 2017, the Young America’s Foundation and other plaintiffs filed suit, alleging that the campus’s Major Events Policy was “unconstitutionally vague” and that the campus administration used an “unwritten and unpublished High-Profile Speaker Policy to repeatedly suppress conservative speech on campus.”

Following initial hearings in the case, U.S. District Court Judge Maxine Chesney ruled that the Berkeley’s Major Event Policy is, in fact, constitutional. The court rejected plaintiffs’ contentions that the policy gives campus administrators the ability to engage in viewpoint discrimination. Now, the plaintiffs have agreed to abandon their remaining legal claims that past events have been managed according to “secret” unconstitutional policies and practices. The settlement does not require the university to concede that any of the plaintiffs’ claims of previous viewpoint discrimination have any basis in fact, for they did not. The settlement agreement confirms that all efforts by plaintiffs to prove viewpoint discrimination by the campus have been abandoned.

“We are gratified that our Major Event Policy has been validated,” said campus spokesperson Dan Mogulof. “During the spring semester and the current semester, it has been that very policy that has enabled the campus to work effectively with the Berkeley College Republicans as they hosted numerous events featuring prominent conservative speakers without incident or interruption.”

As part of the settlement, UC Berkeley has agreed to to consider making a few non-substantive changes to its Major Events Policy. The campus has also agreed to pay $70,000 to reimburse the plaintiffs for their attorney’s fees. That amount is a fraction of the attorney’s fees that plaintiffs incur in a lawsuit of this sort, and an even smaller fraction of the legal expenses the university would have been forced to incur in order to pursue its objectives in court.

“Given that this outcome is all but indistinguishable from what a courtroom victory would have looked like, we see this as the least expensive path to successful resolution of this lawsuit,” said Mogulof. “While we regret the time, effort and resources that have been expended successfully defending the constitutionality of UC Berkeley’s event policy, this settlement means the campus will not need to spend hundreds of thousands of dollars in unrecoverable defense costs to prove that UC Berkeley has never discriminated on the basis of viewpoint.”

The full campus press release follows:

UC Berkeley Statement on YAF Settlement

Seven months after a federal court ruling upheld the constitutionality of the polices that govern student-sponsored events at the University of California Berkeley, the plaintiffs challenging the campus’s management of student-sponsored events have agreed to a settlement that drops their claims that the campus discriminated against speakers on the basis of political viewpoints.

In April 2017, the plaintiffs, including lead plaintiff Young America’s Foundation, filed suit. They made unsubstantiated allegations that the campus’ Major Events Policy was “unconstitutionally vague” and that the campus administration used an “unwritten and unpublished High-Profile Speaker Policy to repeatedly suppress conservative speech on campus.”

Following initial hearings in the case, U.S. District Court Judge Maxine Chesney ruled in late April that the campus’ Major Event Policy is, in fact, constitutional. The court rejected plaintiffs’ contentions that the policy gives campus administrators the ability to engage in viewpoint discrimination. Now, the plaintiffs have agreed to abandon their remaining legal claims that past events have been managed according to “secret” unconstitutional policies and practices. The settlement does not require the University to concede that any of the plaintiffs’ claims of previous viewpoint discrimination have any basis in fact, for they did not. The settlement agreement confirms that any and all efforts by plaintiffs to prove viewpoint discrimination by the campus have been abandoned.

The campus has released thousands of emails and other documents in response to public records requests. Those documents prove the campus never engaged in viewpoint discrimination and that decisions were motivated only by safety and security concerns.

As part of the settlement, UC Berkeley has agreed to consider through its regular campus policy-making process a few elaborating non-substantive changes to its Major Events Policy, including:

• Clarifying portions of the preamble to the policy. (Note: The new listing of criteria for a “major event” on page 3 of the attached “red lined” Major Event Policy document is simply a reiteration and elaboration of existing campus policy.)
• Eliminating “complexity” as a criterion for what constitutes a major event, a criterion which the campus has never actually applied to an event on campus.
• Refining the definition of “authorized campus official” so that the phrase refers only to the chancellor and a select number of senior administrators.
• Slightly altering the approval process for event promotional materials.
• Further clarifying the criteria that result in an event being considered “major” to re-emphasize the existing and repeatedly stated campus policy against discriminating on the basis of a speaker’s viewpoint (See pages 1, 2, 4 and 6 of the existing policy which already make clear that event management cannot be influenced by the viewpoint of speakers or their hosts.)

The “red-lined” Major Event Policy shows the changes the university has agreed to consider as part of the settlement agreement. The plaintiffs will file a dismissal of their lawsuit within seven days of the policy being amended as described above.

The campus has also committed to publishing a fee schedule for security costs that are the responsibility of hosting student organizations. However, this fee schedule applies only to those events planned for student union venues through ASUC Event Services, or for classrooms, through the registrar. Work on such a schedule was already in process due to prior student requests. However, the process and criteria that will be used for establishing costs for security requested by student organizations remains unchanged, as does the prohibition on private security services.

The new schedule is consistent with existing practice that registered student organizations are not required to pay security costs for events they schedule in classrooms and student union venues, except for certain dances. For example, during the spring semester student groups hosted a large number of conservative speakers in classroom venues, including Charlie Kirk, Rick Santorum, Dennis Prager, Heather MacDonald, Candace Owens, Dave Rubin, Steve Simpson, Antonia Okafor and Allie Stuckey. The hosting student organizations were not required to pay any security costs for these events due to their location. To resolve the litigation, the campus agreed to maintain that approach for three years. In addition, the campus will continue to take responsibility for any and all extraordinary security measures that exceed the fees in the published schedule.

However, neither the new schedule nor the settlement agreement changes the fact that the University of California Police Department has always assessed, and will continue to assess, security costs based on viewpoint-neutral criteria. And, to repeat, the process and criteria that will be used for establishing costs for security requested by student organizations remains unchanged.

The campus will also publish a list of the events determined to be “major” under the policy during this academic year.

“We are gratified that our Major Event Policy has been validated,” said campus spokesperson Dan Mogulof. “During the spring semester and the current semester, it has been that very policy that has enabled the campus to work effectively with the Berkeley College Republicans as they hosted numerous events featuring prominent conservative speakers without incident or interruption.”

The pending changes to the Major Event Policy are all entirely consistent with and supportive of existing practices and the campus’ well-established values and commitment to free speech. Key stakeholders, including UCPD and Office of Student Affairs, have confirmed that the modifications are appropriate. In fact, as per past public statements, the campus has long been planning to make a number of changes to the Major Event Policy this fall in response to feedback received from various constituencies. On September 10, Chancellor Carol Christ informed the campus community of the initial event policy changes that will be implemented in response to the recommendations provided last spring by the campus Commission on Free Speech. Unlike the changes agreed to in this settlement, those may have a substantive impact on planning for and the location of future major events.

The university has also agreed to provide a single payment of $70,000 to reimburse the plaintiffs for their attorney’s fees. That amount is a fraction of the attorney’s fees that plaintiffs incur in a lawsuit of this sort, and an even smaller fraction of the legal expenses the university would have been forced to incur in order to pursue its objectives in court.

“Given that this outcome is all but indistinguishable from what a courtroom victory would have looked like, we see this as the least expensive path to successful resolution of this lawsuit,” said Mogulof. “While we regret the time, effort and resources that have been expended successfully defending the constitutionality of UC Berkeley’s event policy, this settlement means the campus will not need to spend hundreds of thousands of dollars in unrecoverable defense costs to prove that UC Berkeley has never discriminated on the basis of viewpoint.”

Attachments:

The Settlement Agreement
The proposed “red line” for the campus’s Major Events Policy
The fee schedule
Recent news reporting on the large number of conservative speakers hosted on the Berkeley campus in the last year.
A compendium of past statements made by plaintiffs and/or plaintiffs’ counsel that are not supported by the settlement agreement