Shaw v. Burke

KEVIN SHAW, an individual, Plaintiff, v. KATHLEEN F. BURKE, in her individual and official capacities;EARIC DIXON-PETERS, in his individual and official capacities;WILLIAM A. MARMOLEGO, in his individual and official capacities;JUAN C. ASTORGA, in his individual and official capacities;FRANCISCO C. RODRIGUEZ, in his official capacity;SCOTT J. SVONKIN, in his official capacity;SYDNEY K. KAMLAGER, in his official capacity;MIKE FONG, in his official capacity; MIKE ENG,in his official capacity; ANDRA HOFFMAN, in her official capacity;ERNEST H. MORENO, in his official capacity;NANCY PEARLMAN, in her official capacity,and JOHN DOE, in his individual and official capacities, Defendants.

Case No. 2:17-CV-02386-ODW (PLAx)

United States District Court Central District of California

January 17, 2018

ORDER DENYING, IN PART, AND GRANTING, IN PART, DEFENDANTS' MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT [22]

I. INTRODUCTION

Kevin Shaw filed his Complaint on March 28, 2017, and seeks an injunction, declaratory relief, and damages for alleged violations of his First Amendment rights, while a student at Los Angeles Pierce College ("Pierce"). (Compl., ECF No. 1.) He asserts five causes of action pursuant to 28 U.S.C. § 1983, and a sixth for declaratory relief. Defendants Kathleen F. Burke, Earic Dixon-Peters, William A. Marmolejo, Juan C. Astorga, Francisco C. Rodriguez, Scott J. Svonkin, Sydney K. Kamlager, Mike Fong, Mike Eng, Andra Hoffman, Ernest H. Moreno, and Nancy Pearlman ("Defendants") moved to dismiss Shaw's Complaint on May 24, 2017, arguing that: 1) Shaw's claims are barred by the Eleventh Amendment; 2) Shaw has no standing to bring the claims; 3) certain defendants are entitled to qualified immunity; and 4) Shaw fails to state a claim. (Mot., ECF No. 22.)

On October 24, 2017, the United States filed a Statement of Interest, pursuant to 28 U.S.C. § 517, arguing that Shaw has sufficiently pleaded a claim under the First Amendment, but declining to opine on the remaining issues. (Statement of Interest, ECF No. 39.) Defendants opposed the United States' brief, and the Court later allowed the United States to file a Supplemental Statement of Interest in response. (Supp. Statement of Interest, ECF No. 44.) After considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. Accordingly, the Court DENIES, in part, and GRANTS, in part, Defendants' Motion for the reasons set forth below.

II. FACTUAL BACKGROUND¹

Shaw attends Pierce, which is one of nine community colleges within the Los Angeles Community College District (the "District"). (Compl. ¶¶ 1, 3, 14, 28.) Shaw brings facial and as-applied challenges to the District and Pierce's published and unpublished speech policies.

A. The Speech Policies

Chapter IX, Article IX of the District's Rules governs freedom of speech on campuses within the District. (Id. ¶¶ 31-34.) Some of the rules at issue here include:

• Rule 9901, which establishes all of the District's campuses as non-public fora that are not open to free speech and expression, except for designated "Free Speech Areas," (Id. ¶ 35, Ex. A, pg. 31);

• Rule 9902.11, which provides that students may distribute literature, including "petitions, circulars, leaflets, newspapers, miscellaneous printed matter and other materials" only in Free Speech Areas, (Id. ¶ 37, Ex. A, pg. 31);

• Rule 9902.13, which allows each college president to designate "Free Speech Areas" on campus "for free discussion and expression by all persons," subject to content-neutral time, place, and manner restrictions, including "reasonable time restrictions on the use of Free Speech Areas," (Id. ¶ 38, Ex. A, pg. 32);

• Rule 9904, which provides that student use of areas not designated as "Free Speech Areas" for expressive activities "shall be governed by the rules and regulations established pursuant to Article X, relating to student activities and events," (Id., Ex. A, pg. 34); and

• Rule 91005, Article X, which provides that "the college president shall not approve any rules relating to non-Free Speech Areas which would deny students their free speech rights were they conducting such activities in Free Speech Areas." (Defendants' Request for Judicial Notice, Ex. 1, ECF No. 23-1.)²

Pierce requires students to obtain a permit prior to using the Free Speech Area. (Id. ¶ 4.) Shaw claims this "unpublished requirement...severely restrict[s] free speech and expressive activity." (Id.) The permit contains additional rules and regulations that are only available by requesting and obtaining a permit. (Id. ¶¶ 43-44, Ex. C.)As described further below, Shaw first became aware of this requirement after a school administrator, sued here as John Doe, advised him that he was not permitted to engage in free speech outside of the Free Speech Area, and that he needed to complete a permit application prior to doing so. (Id. ¶ 60.) Because Pierce does not publish its free speech rules and regulations, "[s]tudents...have no public, generally accessible means to discern any restrictions to which they are subject or under which they could be punished for engaging in speech or expressive activity on Pierce College's campus." (Id. ¶ 40.)

Upon receiving the permit application, students discover that:

• "The college has one (1) Free Speech Area" on campus "designated for free speech and gathering of signatures," (Id. ¶ 40, Ex. C, pgs. 36-37);

• "Individuals planning to distribute material on campus are required to go to the Vice President of Student Services Office located on the third floor of the Student Services Building between the hours of 9:00 a.m. and 4:00 p.m." (Id., Ex. C, pg. 36);

• Students must identify the name and address of the organization they represent, the name(s) of the distributor(s), and the date and time of the distribution, (Id. ¶ 48, Ex. C, pg. 36); and

• "[D]istribution [of materials] shall take place only within the geographical limits of the Free Speech Area," and students may only use the Free Speech Area from 9:00 a.m. until 7:30 p.m., Monday through Friday. (Id. ¶¶ 36-37, Ex. C, pg. 37.)

Shaw claims that, "[o]n its face, the Pierce College Free Speech Area Policy does not limit the discretion of the Vice President of Student Services Office, or other administrators responsible for its enforcement, to deny or approve the application because of the content or viewpoint of the speaker's intended message." (Id. ¶ 50.) The Free Speech Area also prohibits "spontaneous or anonymous speech becauseindividuals must fill out an application for the use of the space and identify themselves and their organization prior to accessing it. (Id. ¶ 51.)

The Free Speech Area is identified on an attachment to Pierce's Free Speech Area Policy, which is a map that has an area "on the Mall within...red and black dotted lines[, and] is approximately 616 square feet, comprising approximately .003% of the total area of Pierce College's 426 acres, and approximately .007% of the main area of campus..., which excludes the approximately 226-acre farm dedicated to Pierce's agricultural...programs." (Id. ¶ 46, Exs. B, C.) Shaw alleges that the limited size of the Free Speech Area is not tied to any legitimate interest because Pierce "has many open areas and sidewalks beyond the Free Speech Area where student speech, expressive activity, and distribution of literature would not interfere with or disturb access to college buildings or sidewalks, impede vehicular or pedestrian traffic, or in any way substantially disrupt [Pierce's] operations...." (Id. ¶ 54.)

Pierce enforces these rules through its Standards of Student Conduct, which it prints in its schedule of classes. (Id. ¶ 55.) A violation of Pierce's rules, or District Rule 9803.11, which prohibits a "[v]iolation of college rules and regulations including those concerning student organizations, the use of college facilities, or the time, place, and manner of public expression or distribution of materials," may result in discipline. (Id.)

B. The Policies Applied to Shaw

In addition to being facially unconstitutional, Shaw alleges that Pierce enforces its rules in a way that restricts free speech. On November 2, 2016, Shaw and two other members of the Young Americans for Liberty organization attempted to distribute Spanish-language copies of the United States Constitution and discuss freedom of speech issues with students on Pierce's campus. (Id. ¶ 56.) Shaw and his cohort set up a small folding table near the "Mall" area of campus, but outside of the Free Speech Area. (Id. ¶ 57.) Shortly afterward, a college administrator advised them that they were violating Pierce's free speech policies, and would need to obtain apermit to continue distributing their materials and interacting with students. (Id. ¶¶ 59-60.) Shaw asked what would happen if he did not follow the administrator to obtain the permit, and the administrator said that he would ask Shaw and the others to leave campus. (Id. ¶ 61.) So, Shaw followed the administrator to the office, and filled out the permit application, which included the Pierce College Free Speech Area Policy, which Shaw had now seen for the first time. (Id. ¶ 62, Ex. B.) Despite his request, the administrator refused to provide Shaw with a copy of the completed permit application. (Id. ¶ 63.)

On November 11, 2016, Shaw emailed Astorga, the Dean of Student Engagement, and informed him that he wanted to gather signatures and encourage students to adopt a different free speech policy in an area outside of the Free Speech Area, but away from buildings and in an area that would not impede pedestrian traffic. (Id. ¶¶ 18, 64-65.) Shaw also confirmed that he would not use any amplified sound. (Id. ¶ 65.) It is unclear from the Complaint whether Astorga responded.

On November 16, 2016, Shaw distributed materials outside the Free Speech Area "for several hours in an open,...