Turning Point USA at Arkansas v. Ron Rhodes

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-3016

___________________________

Turning Point USA at Arkansas State University; Ashlyn Hoggard

lllllllllllllllllllllPlaintiffs - Appellants

v.

Ron Rhodes, In his individual capacity (Originally named in his individual and

official capacities as member of the Board of Trustees of the Arkansas State

University System); Tim Langford, Dr., Individual and official capacities as

member of the Board of Trustees of the Arkansas State University System; Niel

Crowson, Individual and official capacities as member of the Board of Trustees of

the Arkansas State University System; Stacy Crawford, Individual and official

capacities as member of the Board of Trustees of the Arkansas State University

System; Price C. Gardner, Individual and official capacities as member of the Board

of Trustees of the Arkansas State University System; Charles L. Welch, Individual

and official capacities as member of the Board of Trustees of the Arkansas State

University System; Kelly Damphousse, Chancellor of Arkansas State University, in

his individual and official capacities; William Stripling, Vice Chancellor for

Student Affairs of Arkansas State University, in his individual and official

capacities; Martha Spack, Director of Student Development and Leadership for

Arkansas State University, in her individual and official capacities; Christy Clark,

In her official capacity as a member of the Arkansas State University System Board

of Trustees (Originally named as Ron Rhodes)

lllllllllllllllllllllDefendants - Appellees

------------------------------

Speech First, Inc.; Young Americans for Liberty; The National Legal Foundation;

Pacific Justice Institute; Cato Institute

lllllllllllllllllllllAmici on Behalf of Appellants

____________

Appeal from United States District Court

for the Eastern District of Arkansas - Jonesboro

____________

Submitted: June 18, 2020

Filed: August 31, 2020

____________

Before LOKEN and GRASZ, Circuit Judges, and CLARK,1 District Judge.

____________

GRASZ, Circuit Judge.

Ashlyn Hoggard and Turning Point USA sued Arkansas State University, its

administrators, and its trustees for violating their rights under the Free Speech Clause

of the First Amendment. The district court2 granted summary judgment to the

defendants. We affirm.

I. Background

A. Factual Background

1

The Honorable Stephen R. Clark, Sr., United States District Judge for the

Eastern District of Missouri, sitting by designation.

2

The Honorable J. Leon Holmes, United States District Judge for the Eastern

District of Arkansas.

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Just outside the Reng Student Union, Arkansas State University student Ashlyn

Hoggard set up a small table. She was accompanied by Emily Parry, a non-student

representative for Turning Point USA (“Turning Point”), an organization focused on

promoting free markets, limited government, and individual liberty. Hoggard and

Parry aimed to recruit students for a local Turning Point chapter, which they hoped

could become a registered student organization at Arkansas State. But in short order,

two University administrators, Sarah Ponder and Elizabeth Rouse, approached the

table to investigate.

Rouse told Hoggard and Parry they could not “table” at their present location.

(We will call this area the “Union Patio.”) If Hoggard and Parry wanted to set up a

table and display their signage (“Free Market, Free People,” “Big Government Sucks”),

Rouse explained, they could do so elsewhere — specifically, in a campus “Free

Expression Area,” one of which was less than 100 yards away. In response, Parry

expressed her views about the constitutionality of Free Expression Areas and other

campus-speech restrictions. University Police Officer Terry Phipps quickly arrived at

the scene and ordered Parry to leave campus. Hoggard was told to take down her table.

Her recruiting efforts — at least at her Union Patio informational table — were done

for the day.

B. University Policies

Hoggard blames several University policies for her inability to table at the Union

Patio. She points to three policies in particular, which we outline briefly here.

Arkansas State University’s Freedom of Expression Policy (“System Policy”)

permits individual Arkansas State University campuses — including the Jonesboro

campus Hoggard attended — to establish “Free Expression Areas” and impose

reasonable time, place, and manner restrictions on their use. It further explains that

Arkansas State “has not opened its campuses as public forums.”

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The Jonesboro campus has its own Freedom of Expression Policy (“Campus

Policy”). It explains that the Jonesboro campus “is not a public forum open for

assembly and expression of free speech.” But it establishes several Free Expression

Areas throughout campus, which can be used for speeches, demonstrations, and

expressive activities. According to the Campus Policy, anyone can use the Free

Expression Areas, regardless of viewpoint, so long as they get advance permission and

adhere to reasonable time, place, and manner restrictions. Other areas of campus may

be used for speeches, marches, and demonstrations, so long as the University receives

advance notice and grants permission.

Finally, as an outgrowth of the Campus Policy, the Jonesboro campus has an

unwritten policy restricting tabling at the Union Patio to registered student

organizations and University departments (“Tabling Policy”). A student’s application

to create a registered student organization must be first approved by the University.

For approval, a student organization seeking registration must have five members, a

faculty or staff advisor, and a constitution. And while the application form for an

organization to become registered indicates that only registered student organizations

and University departments can use certain tables inside the Union, it is silent on

Union Patio tabling restrictions. It is unclear whether the average Arkansas State

student even knew about this unwritten Tabling Policy.

C. Procedural History

Hoggard and Turning Point sued the University, its trustees, and various

administrators in federal court. They sought injunctive relief under 42 U.S.C. § 1983,

claiming both the System and Campus policies violated due process and

unconstitutionally infringed upon freedoms guaranteed by the First Amendment.

Hoggard further alleged that the University trustees and administrators were liable for

damages.

-4-

In the midst of this litigation, the State of Arkansas passed the Forming Open

and Robust University Minds (FORUM) Act. See Ark. Code Ann. §§ 6-60-1001 to

1010. According to this new law, state universities cannot carve out “free speech

zones” for expressive conduct prohibited in other outdoor campus areas; in effect, all

outdoor campus areas are “public forums” for students. Ark. Code Ann. § 6-60-1005.

Arkansas State University, according to the FORUM Act, must therefore permit more

expressive conduct than do the System and Campus Policies.3

Following this change in Arkansas law, the district court granted the defendants’

motion for summary judgment. According to the district court, the passage of the

FORUM Act mooted Hoggard’s request for injunctive relief. The district court also

rejected Hoggard’s § 1983 due-process and First-Amendment damages claims, finding

that the defendants were entitled to qualified immunity because they had not violated

a clearly established right.4 Now, on appeal, Hoggard challenges the district court’s

ruling — she argues University administrators and trustees violated her clearly-

established constitutional right to free speech, and they are not, therefore, immune from

3

We note that, while the Jonesboro campus’ Tabling Policy is unwritten, the

FORUM Act now requires speech regulations be made “public in [universities’]

handbooks, on their websites, and through their orientation programs.” Ark. Code

Ann. § 6-60-1007; see also § 6-60-1005 (requiring a state university’s time, place, and

manner restrictions on speech be “published” and prohibiting them from preventing

students from “spontaneously and contemporaneously assembl[ing], speak[ing], and

distribut[ing] literature”).

4

The district court also determined that four of the defendants — all University

administrators — could not be held liable, as they were not “individually involved in

enforcing the Policy against Hoggard.” Hoggard challenges this determination on

appeal. But because all remaining defendants are entitled to qualified immunity (as we

explain below), we need not decide whether these administrators were involved enough

to otherwise be liable under § 1983.

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suit. Our analysis focuses solely on whether the University’s administrators and

trustees can be liable for money damages under 42 U.S.C. § 1983.

II. Analysis

Section 1983 allows citizens to sue state officials for violating their “rights,

privileges, or immunities secured by the Constitution and laws.” According to

Hoggard, the University administrators and trustees (i.e., the state officials who created

and enforced state-university policies) violated her First Amendment free speech rights

and should be liable for her damages.

The district court, however, granted summary judgment to the defendants under

the qualified immunity doctrine. “Qualified immunity shields public officials from

liability for civil damages if their conduct did not ‘violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’” Dillard v.

O’Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020) (en banc) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). We must therefore determine “(1) whether the

facts shown by the plaintiff make out a violation of a constitutional or statutory right,

and (2) whether that right was clearly established at the time of the defendant[s’]

alleged misconduct.” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir.

2009). And our analysis will proceed in that order — we will first examine whether

Hoggard’s rights were violated and will then turn to whether those rights were clearly

established. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges of the

district courts and the courts of appeals should be permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first . . . .”).

We review de novo the grant of summary judgment and view the record and

draw all reasonable inferences therefrom in the nonmoving party’s favor. Richardson

v. Omaha Sch. Dist., 957 F.3d 869, 876 (8th Cir. 2020).

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A. Violation of a Federal Statutory or Constitutional Right

1. Forum Analysis

The First Amendment guarantees a right of free speech. See U.S. Const. amend.

I. But while the First Amendment’s text prohibits laws “abridging the freedom of

speech,” the freedom of speech enjoyed by citizens is not absolute. Ashcroft v. ACLU,

535 U.S. 564, 573 (2002). The Constitution does not give Hoggard “unfettered

latitude” to speak and set up tables “wherever and whenever [s]he might choose.” Ball

v. City of Lincoln, 870 F.3d 722, 729 (8th Cir. 2017). Rather, the State of Arkansas,

“no less than a private owner of property, has the power to preserve the property under

its control for the use to which it is lawfully dedicated.” Id. (quoting United States v.

Grace, 461 U.S. 171, 178 (1983)). As such, the First Amendment does not require

Arkansas to “freely . . . grant access to all who wish to exercise their right to free

speech” on its property “without regard to the nature of the property or to the

disruption that might be caused by the speaker’s activities.” Id. (quoting Cornelius v.

NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985)). Thus, the

legality of speech restrictions on state property “turns on the nature of the property

involved and the restrictions imposed.” Id.

To determine the nature of the property involved, we undertake a “forum

analysis.” Bowman v. White, 444 F.3d 967, 974 (8th Cir. 2006). This is because the

law generally tolerates speech restrictions in some forums to a greater extent than in

others. For example, the government’s ability to restrict speech is sharply

circumscribed in “traditional” and “unlimited designated” public forums. Id. at

975–76. When an area is traditionally open for free expression, or is designated as a

forum for all speakers and topics, we subject speech restrictions in such areas to

heightened scrutiny. Id. At the opposite end of the spectrum, some government

property is “not by tradition or designation a forum for expressive activities by the

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public.” Ball, 870 F.3d at 730 (quoting Perry Educ. Ass’n v. Perry Local Educator’s

Ass’n, 460 U.S. 37, 46 (1983)). “The government retains much broader discretion to

restrict expressive activities” in these “nonpublic forum[s].” Id.

The Union Patio, where Hoggard set up her informational table, lies somewhere

between these two extremes. The district court implied, and Hoggard no longer

contests, that the University had “limit[ed] the expressive activity” permitted on the

Union Patio “to certain kinds of speakers or to the discussion of certain subjects.”

Bowman, 444 F.3d at 976 (quoting Make the Road By Walking, Inc. v. Turner, 378

F.3d 133, 143 (2d Cir. 2004)). The Union Patio is therefore a “limited designated

public forum,” in which speech restrictions must be “reasonable” and “viewpoint

neutral.” Id.

2. Restrictions at Issue

We must identify the restrictions in play before we examine their reasonableness

and neutrality. No restriction specifically listed in the System or Campus Policies was

enforced against Hoggard. She was not in a Free Expression Area. Nor did she

attempt to set up a table elsewhere. Nobody told her to leave campus, or to quit talking

about Turning Point and its views. Rather, Hoggard was instructed to take down her

table because the Union Patio was reserved for registered student organizations and

University departments. Only the unwritten Tabling Policy was enforced against

Hoggard, and thus, only the Tabling Policy’s constitutionality is properly at issue.

According to unrebutted testimony, tabling at the Union Patio is reserved for

University departments and registered student organizations. The application form for

registering a student organization requires five members, a constitution, and an advisor.

Such requirements might constitute viewpoint discrimination if they could not be met

due to an organization’s views. But that is not the case here. Hoggard does not allege

viewpoint discrimination. And, at least as applied to her, the Tabling Policy was not

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viewpoint-discriminatory. True, the Tabling Policy favors the viewpoints of officially-

recognized groups over unrecognized groups and individuals. But the Supreme Court

has described such favoritism as status-based discrimination, rather than viewpoint-

based discrimination. Perry, 460 U.S. at 48–49.5 And because status-based

distinctions are “inherent and inescapable” in limited public forums, “[t]he touchstone

for evaluating these distinctions is whether they are reasonable in light of the purpose

which the forum at issue serves.” Id.

So our focus, in this case, is the Tabling Policy’s reasonableness. Our inquiry

takes into account “all surrounding circumstances.” Powell v. Noble, 798 F.3d 690,

701 (8th Cir. 2015). In particular, we must consider (1) the University trustees’ and

administrators’ expertise in creating educational policies; (2) the purpose served by the

forum; and (3) the alternative channels of communication available to Hoggard in light

of the policies. See id. (“A restriction must be reasonable in light of the purpose which

the forum at issue serves and the reasonableness of a restriction on access is supported

when substantial alternative channels remain open for the restricted communication.”)

(internal quotation and alteration omitted); see also Widmar v. Vincent, 454 U.S. 263,

276–77 (1981) (deferring to a university’s judgments about academic affairs, while

reviewing the constitutionality of speech restrictions).

3. Educational Expertise

We will not “substitute our own notions of sound educational policy for those

of the school authorities which we review.” Albright ex rel. Doe v. Mountain Home

5

Again, this is not to say a policy favoring speech of recognized groups could

not be challenged on the basis of viewpoint discrimination. If the group’s status (upon

which forum access is predicated) depends on what views it holds, viewpoint-

discrimination may be at issue. But that is not the case here.

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Sch. Dist., 926 F.3d 942, 948 (8th Cir. 2019) (quoting Special Sch. Dist. No. 1,

Minneapolis Pub. Sch. v. R.M.M. ex. rel. O.M., 861 F.3d 769, 771–72 (8th Cir.

2017)). How, and whether, to run a registered student organization program or to

maintain the Union Patio is largely up to the defendants’ discretion, which for the most

part we leave unquestioned. However, we retain authority to determine “whether a

public university has exceeded constitutional constraints, and we owe no deference to

universities when we consider that question.” Christian Legal Soc. Chapter of the

Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 686 (2010).

4. Justification of the Forum’s Restrictions in Light of its Purpose

With this in mind, we turn to the defendants’ justification for the Tabling Policy.

According to the defendants, the Union Patio is “unique.” The University’s policies

“afford privileges to [registered student] organizations to use that space,” which are not

afforded to other organizations and individuals. The Union, defendants say, is the

“living room of campus.” It is where students eat, hang out, and attend meetings. And

so the area outside the Union — the Union Patio — is supposed to remain a

comfortable area — an area in which students need not worry about whether they’ll be

harassed by pushy buskers, hucksters, and pamphleteers.6

This might reasonably justify excluding non-University individuals from

speaking at the Union Patio. Cf. Bowman, 444 F.3d at 980–83 (citing, as reasons for

speech restrictions, safety concerns about persons unaffiliated with the university). But

unlike the plaintiff in Bowman, Hoggard was a student — she belonged on campus.

6

The defendants put forward no other justification for the policy. We therefore

assume, for purposes of this appeal, that no other justification for the policy exists.

Richardson, 957 F.3d at 876 (“We . . . view[] the record in the light most favorable to

the nonmoving party and draw[] all reasonable inferences in that party’s favor”).

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She was, to use the defendants’ phrase, a “part of [the] campus community.” She

presumably paid the Student Union Fees supporting maintenance of the Student Union

and aspects of the registered student organization program. We fail to see why

restricting Union Patio tabling to registered student organizations is any more

conducive to creating a “comfortable,” “living-room” atmosphere within the Union

than opening Patio tabling to all students and groups thereof. The First Amendment

protects the rights of both groups and individuals. See Healy v. James, 408 U.S. 169,

180–85 (1972) (requiring courts to examine First Amendment implications when state

colleges restrict the speech and associational rights of non-recognized student groups);

see also McCutcheon v. FEC, 572 U.S. 185, 206 (2014) (“The whole point of the First

Amendment is to afford individuals protection against . . . infringements [on free

speech in the name of the public good].”) (emphasis added).

5. Availability of Alternative Forums

The record is unclear about the availability of alternative forums. Part of the

trouble is that the Tabling Policy is unwritten. This, in itself, does not pose a First

Amendment problem. Families Achieving Indep. & Respect v. Neb. Dep’t. of Soc.

Servs., 111 F.3d 1408, 1415 (8th Cir. 1997) (en banc). The problem, rather, comes

from the Tabling Policy’s vagueness, coupled with the ambiguities surrounding the

University’s enforcement of its speech policies. See id. As an initial matter, nobody

seems to know where the Tabling Policy came from; it’s as if it simply emerged from

the bureaucratic aether. And while it is clear and undisputed that tabling outside the

Union is restricted, the availability of alternative channels of communication remains

unclear. The deposition testimony is loaded with murky questions and murkier

answers. Can two students sitting at a Union Patio table talk to other students passing

by? According to one defendant, it depends on whether their speech is “offensive.”

Could a student group — officially recognized or otherwise — approach other students

outside the Union Patio to talk politics? Apparently, it “depends” on whether the

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University receives complaints. What about distributing written material? The

Campus Policy does not mention the Union Patio as an appropriate place for

distribution, but — as one defendant explained — registered student organizations can

distribute pamphlets there while non-registered groups and individuals cannot. In this

light, one might reasonably infer, as we are required to do, that the availability of

Hoggard’s alternative communicative channels depended on the “offensiveness” of

Hoggard’s speech and how University administrators chose to enforce the unwritten

and ambiguous aspects of the various policies at play. See Richardson, 957 F.3d at

876 (“We . . . view[] the record in the light most favorable to the nonmoving party and

draw[] all reasonable inferences in that party’s favor.”); see also Minn. Majority v.

Mansky, 708 F.3d 1051, 1060 (8th Cir. 2013) (acknowledging potential § 1983

liability for deliberate indifference toward a state policy’s selective enforcement).

There are, of course, a few channels of communication clearly available to

Hoggard. Two immediately come to mind. First, Hoggard, by herself and without

tables, signs, or literature, could have approached individual students practically

anywhere on campus to discuss economic freedom, small government, and forming a

Turning Point chapter. She could have done this in person or through social media.

Second, she could have set up her table in a Free Expression Area.

The first alternative amounts to little. Telling Hoggard she can still associate

with her peers to discuss politics is not the same as providing an alternative forum.

Rather, it is simply a recognition of her basic First Amendment rights.

The second alternative amounts to a presumptively-unconstitutional prior

restraint on speech. See Bowman, 444 F.3d at 980 (finding a university’s requirement

of obtaining permission before using an unlimited designated public forum a prior

restraint, which bears the “heavy presumption of unconstitutionality”). The Free

Expression Areas on campus are unlimited designated public forums, but a speaker

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must get prior permission from the school in order to use them. It is unclear how far

in advance this permission must be sought. Rouse told Hoggard that 24-hour notice

was required, but the written System and Campus Policies say no such thing. We

recognize that we have upheld similar prior restraints when a non-student’s speech,

crowd control, and safety concerns were at issue. Id. at 983. But none of those factors

are present here; Hoggard was a student, and the defendants never cited crowd control

or safety to justify treating students representing registered student organizations

differently from their unaffiliated peers. We have not identified a case in which we

allowed a university to impose a prior restraint on a student wishing to use an unlimited

public forum.

6. Constitutionality of Restrictions

When we consider these factors together, we find that the Tabling Policy, as

applied to Hoggard, is unconstitutional. We defer to the defendants’ judgment about

the importance of establishing a space serving as the campus “living room,” as well as

their determination that students should feel comfortable in the space in which they eat,

meet, and socialize. But this legitimate university interest bears no rational relationship

to the distinction between registered student organizations and individual students

when it comes to using the Union Patio. Compare Hoggard’s case to Perry, in which

the Supreme Court upheld a limited-public-forum restriction permitting mailroom

access to one teachers’ union but not another. 460 U.S. at 38–39. The restriction in

Perry was found reasonable, at least in part, because of the two unions’ different

obligations and responsibilities — one exclusively represented all the school district’s

teachers, and the other was a rival vying for support. Id. at 51–53. The union serving

as the teachers’ exclusive bargaining representative had compelling reasons to use the

school’s mailroom that the other union did not. Id. Unlike in Perry, registered student

organizations do not have obligations and responsibilities more directly tied to the

forum’s use than do individual Arkansas State students.

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In short, we cannot find the distinction between registered student organizations

and individual students reasonable, when the sole justification offered for the

distinction provides no meaningful reason for differentiating the two. At least in this

case, the (limited) availability of alternative forums and the defendants’ educational

expertise cannot compensate for the weak justification (i.e., creating a comfortable,

living-room atmosphere) the defendants offer for their status-based discrimination.

This is not to say, of course, that distinguishing between registered student

organizations, unregistered organizations, and individual students is irrational per se.

Public schools are free to restrict forum access when they have a nondiscriminatory

reason for doing so. See, e.g., Victory Through Jesus Sports Ministry Found. v. Lee’s

Summit R-7 Sch. Dist., 640 F.3d 329, 335 (8th Cir. 2011). There may be good reasons

for distinguishing between registered student organizations and other members of the

university community for purposes of accessing a particular university forum. But

such reasons have not been presented in this case. Thus, we conclude Hoggard put

forward sufficient facts to show a constitutional violation.

B. Clearly Established First Amendment Rights

The ultimate success of Hoggard’s § 1983 claim, however, depends on whether

it was “sufficiently clear that every reasonable official would have understood” that,

by preventing Hoggard from Union Patio tabling, he or she was violating the First

Amendment. Reichle v. Howards, 566 U.S. 658, 664 (2012) (quotations and

alterations omitted). That is, we must determine whether the right violated by the

defendants was “clearly established” at the time of the violation. Id. We do not

“define clearly established law at . . . a high level of generality.” Id. at 665 n.5

(quotation omitted). “Rather, we look for a controlling case or ‘a robust consensus of

cases of persuasive authority.’ There need not be a prior case directly on point, but

‘existing precedent must have placed the statutory or constitutional question beyond

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debate.’” Dillard, 961 F.3d at 1052 (internal citation omitted) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741–42 (2011).

The rights at issue here — Hoggard’s rights under the First Amendment — were

not clearly established. The case most closely on point, Bowman v. White, may have

given a reasonable impression that the Tabling Policy was constitutionally acceptable.

444 F.3d 967. While we find Bowman distinguishable from the case at hand, the

scope of Hoggard’s First Amendment right to “table” at the Union Patio was not

“beyond debate” on October 11, 2017. Dillard, 961 F.3d at 1052.

Bowman was also an Arkansas campus speech case. In Bowman, we upheld

several complained-of speech restrictions imposed in an unlimited public forum. 444

F.3d at 983. Given the stricter scrutiny involved in unlimited-public-forum cases and

the fact that the case involved a presumptively-unconstitutional prior restraint, an

official might have reasonably believed the Tabling Policy — which regulated a more

loosely-scrutinized limited public forum and did not directly involve a prior restraint —

was permissible. This view of Bowman, however, ignores the critical fact that the

Bowman plaintiff was a non-student, and the speech restrictions were justified by

compelling safety and administrative concerns. Id. at 980–83. Nonetheless, the

defendants could have reasonably viewed Bowman as permitting the Tabling Policy;

Bowman’s distinguishability does not mean the defendants “knowingly violate[d] the

law.” Dillard, 961 F.3d at 1052 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308

(2015)).

Hoggard cites other cases attempting to show the First Amendment violation was

“clearly established.” But her cases are inapposite. Most of them simply do not

involve limited public forums, which insulates against a reasonable official’s

knowledge that unjustified limited-public-forum distinctions between students and

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registered student organizations are impermissible.7 Another of Hoggard’s cases,

Thomas v. Collins, involved a content-based restriction and did not undertake a forum

analysis. 323 U.S. 516 (1945). She also cites cases about officials allegedly

possessing overly-broad discretion to enforce speech restrictions. See Douglas v.

Brownell, 88 F.3d 1511, 1521–23 (8th Cir. 1996) (rejecting § 1983 plaintiff’s similar

arguments for lack of evidence of defendant’s selective enforcement); see also Minn.

Majority, 708 F.3d at 1060 (rejecting a selective-enforcement argument because the

plaintiff failed to allege deliberate indifference to the selective enforcement). But these

overly-broad-discretion cases do not “clearly establish” the Tabling Policy’s

unconstitutionality, because the Tabling Policy’s unconstitutionality stems from its

unjustified distinction between registered student organizations and other students, not

from the way officials exercised their discretion by enforcing it against Hoggard.

In short, Hoggard failed to identify “controlling authority” or “a robust

consensus of cases of persuasive authority” that “placed the . . . constitutional question

beyond debate at the time of the alleged violation.” Kelsay v. Ernst, 933 F.3d 975, 979

(8th Cir. 2019) (en banc) (quoting al-Kidd, 563 U.S. at 741–42). Her First

7

See Ball, 870 F.3d 722 (nonpublic forum’s restrictions upheld); Boardley v.

U.S. Dep’t of Interior, 615 F.3d 508, 516 (D.C. Cir. 2010) (public forum); Knowles

v. City of Waco, 462 F.3d 430, 433 (5th Cir. 2006) (public forum); Santa Monica

Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1032 (9th Cir. 2006)

(designated public forum); Bowman, 444 F.3d 967 (designated public forum); Am.-

Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 604–05 (6th Cir.

2005) (public forum); Burk v. Augusta-Richmond Cty, 365 F.3d 1247, 1249 (11th Cir.

2004) (public forum); Cmty for Creative Non-Violence v. Turner, 893 F.2d 1387, 1391

(D.C. Cir. 1990) (public forum); see also Douglas v. Brownell, 88 F.3d 1511, 1521

(8th Cir. 1996) (examining a prior restraint’s constitutionality and whether a speech

restriction was “narrowly tailored”); Rosen v. Port of Portland, 641 F.2d 1243, 1246

(9th Cir. 1981) (examining a prior restraint and applying “the most exacting scrutiny”

to a speech restriction).

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Amendment right to access a limited public forum, which she was unjustifiably denied,

was not “clearly established” at the time. Granting qualified immunity was therefore

appropriate.

III. Conclusion

We find that the Tabling Policy, as it was enforced against Hoggard, violates the

First Amendment. The defendants’ restriction of Union Patio access to registered

student organizations has no rational relationship to their proffered justification. As

such, the Tabling Policy’s enforcement against Hoggard on October 11, 2017, was

unreasonable and unconstitutional. But the defendants may reasonably have not

understood this at the time. We find the defendants were properly granted qualified

immunity and we therefore affirm the district court’s grant of summary judgment.

LOKEN, Circuit Judge, concurring.

I agree that defendants acting in their individual capacities did not take action

that violated Hoggard’s clearly established First Amendment rights. Therefore,

defendants are entitled to qualified immunity from Hoggard’s § 1983 damage claims,

the only claims at issue on appeal. I join Part II.B. of the court’s opinion and concur

in the decision to affirm the grant of summary judgment.

I cannot join Part II.A. because it ignores -- explicitly in footnote 4 on page 5 --

the fundamental principle that § 1983 damage liability is personal and therefore

Hoggard must prove that each “defendant’s unconstitutional action was the ‘cause in

fact’ of [her] injury.” Clark v. Long, 255 F.3d 555, 559 (8th Cir. 2001) (quotation

omitted); see Cox v. Sugg, 484 F.3d 1062, 1066 (8th Cir. 2007) (absolving university

administrators on this ground); see generally Doran v. Eckhold, 409 F.3d 958, 965 (8th

Cir.) (en banc), cert. denied, 546 U.S. 1032 (2005). As Hoggard presented insufficient

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evidence of these defendants’ personal involvement in denying her access to the Union

Patio, I would pass over the question of a constitutional violation -- an issue largely if

not entirely mooted when Arkansas enacted the FORUM Act -- and simply decide the

appeal on the clearly established issue.

The summary judgment record establishes that Hoggard was poorly treated by

Sarah Ponder and Elizabeth Rouse, mid-level University administrators. In the modern

university, it is all too common for petits fonctionnaires, arbitrarily enforcing broad

rules and policies, to take action that may be politically correct but is not viewpoint

neutral. When such actions trample a student’s constitutionally protected right of free

speech, those responsible should be held accountable. But Hoggard did not sue Ponder

or Rouse, perhaps because Turning Point’s attorneys saw “bigger fish to fry” in a facial

attack on multiple University policies. The FORUM Act mooted this cause célèbre.

Plaintiffs labored on, now accusing the highest ranking University trustees and

administrators of being personally involved in a single episode in which their

underlings applied an unwritten Tabling Policy to deny student Hoggard use of a table

on the Union Patio to recruit other students to join an as-yet unregistered student

organization. The court says their individual involvement does not matter and proceeds

to broadly condemn a “policy” that, for all the record reveals, may have been an ad hoc

creation of Ponder and Rouse to further their personal notions of what student speech

was appropriate for the “living room of campus.” This is not our proper role in

deciding § 1983 appeals raising sensitive constitutional issues.

I would agree with much, perhaps all, of the court’s analysis in Part II.A. if the

record established that University policymakers authorized and approved a Tabling

Policy enforced to deter protected student speech, like the action taken against

Hoggard. But Part II.A. addresses a hypothetical, not this case. I therefore

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suggest that, as precedent, Part II.A. be treated as a thoughtful but not controlling

advisory opinion.

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