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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KALAMAZOO PEACE CENTER, JESSICA CLARK, and NOLA WIERSMA, Plaintiffs, v. JOHN M. DUNN, LAURA M. THOMAS, JAN VAN DER KLEY, ROBERT J. BROWN, BLAINE D. KALAFUT, and DIANE ANDERSON, Defendants.

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Case No. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES JURY TRIAL DEMANDED

Plaintiffs Kalamazoo Peace Center, Jessica Clark, and Nola Wiersma complain of

Defendants and allege:

I. INTRODUCTION

1. “The vigilant protection of constitutional freedoms is nowhere more vital than in

the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960). This is

particularly true of public universities, where “[t]eachers and students must always remain free to

inquire, to study and to evaluate, to gain new maturity and understanding.” Sweezy v. New

Hampshire, 354 U.S. 234, 250 (1957). The United States Supreme Court has thus made clear

that “state colleges and universities are not enclaves immune from the sweep of the First

Amendment,” and that the freedoms of speech, assembly, and petition must be zealously guarded

as “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of

ideas.’” Healy v. James, 408 U.S. 169, 180 (1972). In the face of these bedrock principles,

Case 1:14-cv-01087-GJQ Doc #1 Filed 10/20/14 of 26 Page ID#1

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Western Michigan University (“WMU”) officials restrict speech on campus by limiting access to

campus facilities based on the anticipated content of speech and by assessing indeterminate

sliding-scale “security” fees that amount to a tax on controversy. WMU also enforces

unconstitutional “posting” policies and guidelines that eliminate spontaneous dissemination of

written communications on campus.

2. Plaintiffs Kalamazoo Peace Center, Jessica Clark, and Nola Wiersma

(collectively, “KPC”) are a student and community group and its co-directors at WMU who

sought in 2014 to host Boots Riley, noted musician, activist, and progressive labor advocate, to

present a keynote speech on ideas and tactics to advance social justice. WMU initially denied

KPC’s request to hold the event at Sangren Hall, located in the center of campus, and then

clarified that it would not allow the event at any campus venue. After KPC asked University

officials to reconsider their position, WMU decreed the event could take place on campus, but

only if KPC paid for the presence of police officers as “security” for the lecture. WMU imposed

this requirement and set the fee to pay the officer based solely on the speculative campus

reaction to Mr. Riley’s anticipated remarks. Rather than pay the arbitrary fee, for which it had

not budgeted in any case, KPC was forced to hold the event at a less desirable non-university

venue.

3. In addition, WMU requires that a university official approve any flyer advertising

an event, and forbids campus groups from posting any announcements until the activity has been

approved. The delay caused by Defendants’ professed security concerns meant that KPC could

not publicize the Riley event, further stifling KPC’s efforts to fulfill its mission of increasing

awareness of social justice.


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4. Accordingly, this is a civil rights action to protect and vindicate the First and

Fourteenth Amendment rights of KPC and all students at WMU. By policy and practice,

Defendants unlawfully restrict WMU students’ constitutional rights to free expression and have

acted in the past to restrict the Plaintiffs’ constitutional rights. WMU’s policies and enforcement

practices are challenged on their face and as applied to Plaintiffs Kalamazoo Peace Center,

Jessica Clark, and Nola Wiersma. This action seeks declaratory and injunctive relief, damages,

and attorneys’ fees.

II. JURISDICTION AND VENUE

5. This action arises under the United States Constitution, particularly the First and

Fourteenth Amendments, and the Civil Rights Act, 42 U.S.C. §§ 1983 and 1988.

6. This Court has original jurisdiction over these federal claims pursuant to

28 U.S.C. §§ 1331 and 1343.

7. The Court has authority to grant the requested declaratory judgment pursuant to

28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, and to issue the requested

injunctive relief pursuant to 42 U.S.C. § 1983 and Federal Rule of Civil Procedure 65. The

Court is authorized to award attorneys’ fees and costs pursuant by 42 U.S.C. § 1988.

8. Venue is proper in the United States District Court for the Western District of

Michigan pursuant to 28 U.S.C. § 1391(b) because the events giving rise to the instant claim

occurred within this District and because at least one Defendant resides in this District.

III. PLAINTIFFS

9. Plaintiff Kalamazoo Peace Center is a non-profit organization and a Registered

Student Organization (“RSO”) at WMU. Although it is an independent organization, it is located

on the WMU campus in the Wesley Foundation, which is both an RSO and the campus affiliate


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of the United Methodist Church. KPC operates on a collaborative basis, in which WMU

students and non-student staff work together in a “collective” to fulfill KPC’s mission: educate

and empower students by providing knowledge, tools, and space needed to mobilize around

issues of justice and peace and for effecting positive change on campus and in the community.

KPC organizes lectures, film screenings, concerts, open forums, and other events to bring

together diverse ideas and provide a space for discourse and political development.

10. KPC is led by two co-directors, Jessica Clark and Nola Wiersma.

11. Jessica Clark coordinates events, oversees the capital campaign, develops new

projects, conducts research and maintains the Center’s website.

12. Nola Wiersma communicates and networks with collective members to advance

Peace Center projects and stage events.

IV. DEFENDANTS

13. Defendant John M. Dunn is the President of Western Michigan University. He is

WMU’s chief executive officer, responsible for WMU’s administration and policy-making, and

has ultimate authority to approve the policies and procedures challenged herein that were applied

to deprive Plaintiffs of their constitutional rights. Defendant Dunn acted under color of state law

and is sued for injunctive relief in his official capacity. Ex parte Young, 209 U.S. 123 (1908).

14. Defendant Laura M. Thomas is an Associate Registrar at Western Michigan

University. Defendant Thomas acted under color of state law and is sued in both her personal

and official capacities. Ex parte Young, 209 U.S. 123 (1908).

15. Defendant Jan Van Der Kley is Vice President for Business and Finance and

Treasurer for the Board of Trustees at Western Michigan University. Defendant Van Der Kley


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acted under color of state law and is sued in both her personal and official capacities. Ex parte

Young, 209 U.S. 123 (1908).

16. Defendant Robert J. Brown is the Director/Chief of the Department of Public

Safety at Western Michigan University. Defendant Brown acted under color of state law and is

sued for injunctive relief in his official capacity. Ex parte Young, 209 U.S. 123 (1908).

17. Defendant Blaine D. Kalafut is the Deputy Chief of the Department of Public

Safety at Western Michigan University. Defendant Kalafut acted under color of state law and is

sued in both his personal and official capacities. Ex parte Young, 209 U.S. 123 (1908).

18. Defendant Diane Anderson is the Vice President for Student Affairs and Dean of

Students at Western Michigan University. Defendant Anderson acted under color of state law

and is sued for injunctive relief in her official capacity. Ex parte Young, 209 U.S. 123 (1908).

V. STATEMENT OF FACTS

19. Kalamazoo Peace Center, like all RSOs at WMU, is governed by the RSO

Handbook (relevant sections attached as Exhibit A). The RSO Handbook establishes

procedures for using campus facilities for expressive events, as well as the conditions for such

use.

20. Organizations that qualify as RSOs are accorded certain privileges, including

access to funding and the ability to use campus facilities for scheduled events.

A. Defendants’ Application of the Room Reservation and Event Security Policies to Censor KPC’s 35th Annual Peace Week Keynote

21. Plaintiff Kalamazoo Peace Center engaged musician, activist, and progressive

labor advocate Boots Riley to give a keynote speech to celebrate its 35th Annual Peace Week,

scheduled for April 3, 2014. As a musician, Mr. Riley’s lyrics are characterized by literary

references that critique capitalism, exploitation, and police brutality.


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22. On March 3, 2014, the earliest possible date under the RSO Handbook Room

Reservation Policy, KPC member Ashlee Daraban submitted a room request to WMU’s

Registrar’s Office for the April 3 event using the Student Activities and Leadership Programs

(“SALP”) website reservation form. The request specified that the event was to be held April

3, 2014, from 6:00 to 9:00 p.m., for up to 200 attendees, and listed three preferred lecture halls

from which the Registrar was requested to assign for KPC’s use. KPC described the event by

stating: “The speaker, Boots Riley, will come to talk about issues related to class structure and

racism.”

23. Four days after the request was submitted, the Associate Registrar, Defendant

Thomas, requested that KPC provide Riley’s résumé and identify the university or venue

where he last spoke.

24. Daraban promptly provided additional information about Riley, a link to his

public speaking home page, and further informed the Registrar that Riley had previously

spoken at California State University Northridge, Concordia University in Montreal, and the

California Institute of Technology.

25. Defendant Thomas responded that, while the Registrar’s office appreciated

Daraban’s “promptness” in providing the additional information, the Registrar was “not able to

accommodate” KPC’s room reservation request “at this time.”

26. When Daraban sought clarification whether no rooms were available or only

that the rooms specified in the request were booked, Defendant Thomas responded on March

13 that “[t]he decision was made, in conjunction with public safety, that [WMU] will not

reserve a room on campus for this event.”


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27. Former KPC Director and Board Member Sasha Acker then called Defendant

Blaine Kalafut, WMU’s Deputy Chief of the Department of Public Safety, to inquire why the

Riley event could not be held on campus.

28. Defendant Kalafut responded that KPC could not have the event on campus

because Riley had previously caused a disturbance and his presence on campus had the

potential to create a dangerous situation.

29. Defendant Kalafut also stated that his Department ran background checks on

certain speakers invited to campus and had weekly meetings with the FBI, with which his

Department had a “great relationship.”

30. On information and belief, Defendant Kalafut told Defendant Thomas that Riley

could not appear on WMU’s campus because “he or people he is associated with” caused

trouble at the Miller Auditorium in the past.

31. Acker asked Defendant Kalafut to provide more details on Riley’s alleged

previous appearance at WMU and to explain the basis for his claim that Riley or an associate

had been involved in some kind of “incident.”

32. Defendant Kalafut responded by email on March 14 that, to his knowledge,

Riley had never been to WMU but that his Department had “to make sure we take any

necessary precaution to make sure our students and staff are safe.”

33. Although he acknowledged that Riley would not necessarily “cause any harm to

anyone on campus” Defendant Kalafut cautioned “some messages can be controversial,” and

that “we need to be proactive to make sure the event is safe for all.”

34. Despite having taken the position that the event could not take place, Defendant

Kalafut told Acker that he had requested additional information from Riley’s booking agent


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about “past University visits,” and that “more discussion will take place regarding this event”

after he received a response.

35. In response to Defendant Kalafut’s inquiry, Riley’s booking agent confirmed

that Riley had appeared previously at Cal Tech, California State Northridge, and Concordia

University. Defendant Kalafut then asked Riley’s booking agent to provide a police contact at

Cal Tech.

36. Defendant Kalafut told KPC that Defendant Jan Van Der Kley had instructed

the Registrar’s Office to deny KPC’s room request. Based on this information, Riley’s

booking agent asked Defendant Van Der Kley to explain why the room request was denied.

37. Defendant Van Der Kley denied having previous knowledge of a decision to

deny KPC’s room request.

38. Defendant Van Der Kley has “global oversight for facilities management, public

safety, human resources, contract administration and financial activities of the University,

including responsibility for the investment and management of endowments, planned gifts and

working capital.”

39. Daraban of KPC also met with Paul Terzino, Director of the Bernhard Center,

WMU’s student center, to see if the event could be held there as an alternate venue.

40. Terzino explained that Defendant Kalafut was conducting a background security

check on Riley, and that the response would determine how much security KPC would need

for its event. Terzino’s statement was the first time KPC was told that security would be

required, and that the Center would have to pay the $62/hour cost for it.

41. KPC had received funding for the Annual Peace Week keynote from the

Western Student Association, an organization that allocates funds to RSOs out of WMU


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student assessment fees. However, at the time it applied for funding, KPC had no idea security

requirements would be imposed, and had not budgeted for such unforeseen expenses.

42. Furthermore, paying for a police presence at an annual Peace Week event was

contrary to the KPC’s mission and values.

43. Unable to accede to WMU’s demand that it pay for a police officer to provide

security for the Boots Riley event, KPC was forced to hold the event at the Wesley Foundation.

44. Accordingly, Mr. Riley’s KPC 35th Annual Peace Week keynote was held on

April 3, 2014 in the Wesley Foundation basement. The location was smaller than, and

acoustically inferior to, lecture halls at WMU. The building also is not handicapped-

accessible, preventing an important segment of KPC’s constituency from attending the event.

45. In addition, because of WMU’s burdensome system for approving flyers, KPC

was not able to advertise the Boots Riley event until very close to the event date, as WMU will

not approve a flyer that does not include the place of the event.

46. Instead of having most of a month to advertise Mr. Riley’s appearance, KPC

had only days because of WMU’s initial refusal to allow the event, followed by its demand that

KPC pay for security.

47. KPC’s efforts to publicize its event were further delayed because different

locations on campus have different approval processes.

48. The KPC 35th Anniversary keynote was held without police presence. The

presentation and discussion took place without any type of disruption.

B. WMU’s Room Reservation Policy

49. RSOs may reserve campus facilities for their events by submitting a room

reservation form on the Student Activities and Leadership Programs (“SALP”) website.


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50. WMU makes classrooms and lecture halls with audiovisual capabilities

available to RSOs pursuant to this policy. Such facilities are assigned for RSO use on a “first-

come, first-served basis.”

51. Guidelines for RSOs posted on the SALP webpage provide that “[m]ost

academic lecture halls with audiovisual capabilities may be reserved no more than one month

in advance to provide opportunities for all organizations to utilize these spaces.” The

guidelines impose no other preconditions for scheduling facilities by RSOs.

52. The facilities reservation form for RSOs does not request any information

related to potential security issues. Nor does it suggest that facility use may be denied for any

reason other than availability during the time requested.

C. WMU’s Event Security Policy

53. A section of the RSO Handbook relating to event planning addresses security.

The Event Security Policy states that RSOs “may need to request security services” for events,

but does not set forth any criteria for an RSO to determine when security services “may” be

“needed.” Nor does the Event Security Policy indicate that WMU may decide unilaterally that

security is necessary or impose any restrictions on WMU as to when it can insist upon security

services for an RSO event.

54. WMU’s Event Security Policy consists of a single paragraph in the RSO

Handbook stating:

RSOs may need to request security services from the WMU Department of Public Safety for a particular event. Generally, these services must be requested a minimum of ten (10) days prior to the planned event. Moreover, these services must be paid for in advance by cash, certified check, money order, or by a campus financial transaction. The WMU Department of Public Safety staff makes the final decision on the number of officers needed for each scheduled event to maintain campus safety and security.


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55. Although requests for security services must be made at least 10 days before a

planned event, the Event Security Policy does not impose any deadlines for WMU to inform

RSOs whether security services will be required. When WMU makes a decision to impose a

security requirement unilaterally, no provision of the policy requires that it be decided

sufficiently in advance of an event in order for the RSO to satisfy the 10-day requirement, to

budget for security fees, or to dispute whether security services are even necessary.

56. The Event Security Policy requires fees for security services to be paid in

advance, but does not specify any criteria or formula for determining how much the fee should

be for any given event. The policy states only that the WMU Department of Public Safety

shall determine the number of officers required for each event. No specific charge per officer

is stated, nor are any criteria established for determining the number of officers that may be

required.

57. The Event Security Policy does not provide any avenue to appeal a decision that

security services are required or the amount to be charged, stating that the WMU Department

of Public Safety shall make a “final decision” in the first instance.

58. WMU’s Deputy Chief of the Department of Public Safety, Defendant Blaine

Kalafut, has stated that whether to require “security” at RSO on-campus events is determined

“case-by-case.”

59. Defendant Kalafut has further stated that the WMU Department of Public

Safety’s “case-by-case” determinations are made based on the history of a speaker or

performer and possible disruptions during the presentation or performance.


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60. Defendant Kalafut has explained that security requirements are imposed for

speakers when they are “controversial,” and have “a message” or “a political stand” to which

“there are dissenting views.”

61. On information and belief, Defendant Kalafut did not want Boots Riley

appearing at WMU because of Riley’s association with the “Occupy Movement” in 2011 and

2012, a famously decentralized form of protest.

62. In August 2012, KPC hosted the Occupy National Gathering at the Wesley

Foundation, located on the WMU campus, over the objection of the Defendants.

63. On information and belief, although Boots Riley participated in activities

associated with the “Occupy Movement” in 2011 and 2012, he did so in Oakland, California,

more than 2,250 miles away from Kalamazoo, Michigan.

D. The Ongoing Impact of WMU’s Room Reservation and Event Security Policies on Plaintiffs

64. Plaintiffs wish to engage in expressive activities similar to Mr. Riley’s keynote

speech in the future, without having to pay “security” fees.

65. Plaintiffs fear Defendants will continue to apply their Room Reservation and

Event Security policies in ways that impede future KPC events.

66. As interpreted and enforced by the Defendants, WMU’s Room Reservation and

Event Security policies afford administrators unbridled discretion, enable them to restrict

access to WMU property, and to impose arbitrary fees, without any specific parameters for

whether to set fees, or in what amount(s).

67. The fees WMU imposes under its Event Security Policy are content-based.

They are predicated on a standardless assessment of whether a given speaker is likely to be


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“controversial” or to draw “dissent,” and on the anticipated reaction to the speaker’s

presentation.

68. Given the arbitrary nature of the Event Security Policy, KPC can effectively

avoid uncertainty over whether it has sufficient funds for an event only by inviting speakers or

performers who are not “controversial” or who will not trigger “dissenting views.”

69. Defendants’ policies and actions create a hostile atmosphere for free expression

on campus, chilling the speech of other WMU RSOs, as well as students, who are not before

the Court.

E. Western Michigan University’s Posting Policies

70. The RSO Handbook also sets forth “Flyer/Poster Posting Guidelines” that

restrict how RSOs and students may post literature on the WMU campus.

71. The Flyer/Poster Guidelines state that “[w]hile WMU promotes freedom of

expression, [it] also affirms civility” and “expects that poster … content will conform to estab-

lished requirements and generally accepted standards of good taste.” The terms “civility” and

“good taste” are not defined. WMU also explicitly “reserves the right to control conditions of

time, place, and manner under which posters and literature are distributed.”

72. Under the Flyer/Poster Guidelines, SALP must approve all postings, and they

must be placed on approved bulletin boards provided by the University.

73. Any RSO wishing to post flyers or posters must submit the proposed flyer or

poster to SALP at least seven business days before the event that the flyer or poster promotes.

The Guidelines state that the SALP approval process may take two full business days.

74. Under these Guidelines, flyers and posters for impromptu expression or

impromptu expressive activities may not be posted because there is no mechanism for

immediate approval.


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75. All postings must contain the full name of the sponsoring organization, and the

date, time, and event location. Programs or projects sponsored in whole or part by student

activities funds must include the statement “SAF Funded” on all postings about those programs

or projects.

76. SALP stamps all flyers and posters “Approved” before they can be posted.

Material without an approved stamp is removed and the offending student group is charged for

removal costs.

77. Furthermore, additional steps are required to post flyers at buildings with high

numbers of visitors.

78. If a RSO would like to advertise an event at the Bernhard Center, SALP must

approve the flyer and then the students must take copies to Student Activities and Leadership

Programs Office.

79. Any signs to be posted in the Student Recreation Center (“SRC”) must first be

approved by SALP but then taken to University Recreation. No more than 12 flyers may be

submitted for posting.

80. Only Residence Life personnel may post flyers on the bulletin boards in

residence hall corridors once they have been stamped “Approved” by the Office of Residence

Life. No postings are permitted on any residence hall walls, windows or other non-bulletin

board surfaces in public areas, nor may postings be slid under room doors unless authorized by

Residence Life.

81. Violations of the RSO Handbook, including of its Flyer/Poster Guidelines, are

subject to sanctions, up to and including loss of RSO privileges or loss of RSO recognition, as

well as potential further “discretionary sanctions.”


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82. As with all rules and policies set forth in the RSO Handbook, WMU reserves

authority to make “[r]easonable changes … without notice” to the Flyer/Poster Guidelines.

VI. CAUSES OF ACTION

COUNT I

As-Applied Violation of Plaintiffs’ Rights to Free Speech Under the First and Fourteenth Amendments (42 U.S.C. § 1983) – Room Reservation Policy

(Defendants Van Der Kley, Kalafut, and Thomas)

83. Plaintiffs repeat and reallege each of the foregoing allegations in this

Complaint.

84. The First and Fourteenth Amendments extend to campuses of state colleges and

universities. Healy v. James, 408 U.S. at 180.

85. Although RSOs at WMU are allowed to schedule the use of campus facilities

with audiovisual capabilities for on-campus events, Defendant Laura Thomas initially told

KPC that its request for space for its 35th Annual Peace Week keynote was being denied.

86. The RSO Handbook provides that such space is to be made available on a first

come-first served basis and does not authorize WMU officials to deny space based on other

considerations.

87. Defendant Thomas required KPC to provide additional information about the

proposed event beyond what is specified in the official reservation request forms, including

Mr. Riley’s résumé and a listing of the universities where he last appeared recently. After KPC

promptly provided this information, Defendant Thomas informed Plaintiffs that the Registrar

was “not able to accommodate” KPC’s room reservation request. When asked for an explana-

tion, Defendant Thomas said that “[t]he decision was made, in conjunction with public safety,

that [WMU] will not reserve a room on campus for this event.”


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88. Defendant Kalafut contacted Boots Riley’s booking agent and requested

information about Riley’s earlier campus appearances, even asking that the agent give him the

number for the campus police at the University of California (Northridge).

89. Defendant Kalafut also told KPC that once he received the information from

Riley’s booking agent, “more discussion will take place regarding this event.”

90. On information and belief, Defendant Kalafut implemented the decision on

whether to allow Riley to appear at a WMU facility.

91. Defendant Van Der Kley is responsible for setting WMU’s security policies and

overseeing the campus public safety department. Defendant Kalafut stated that Defendant Van

Der Kley made the decision to deny KPC a room reservation.

92. Defendants’ initial decision to deny KPC lecture hall space for its 35th Annual

Peace Week keynote rested entirely on anticipated reaction to Boots Riley’s appearance and

was impermissibly content-based. Healy, 408 U.S. at 185-86 (government cannot deny rights

and privileges “solely because of a citizen’s association with an unpopular organization”).

93. Defendants Van Der Kley, Kalafut, and Thomas violated a clearly established

constitutional right of which all reasonable college administrators and staff should have known,

rendering them liable to Plaintiff under 42 U.S.C. § 1983.

94. The denial of constitutional rights is irreparable injury per se, and Plaintiffs are

entitled to declaratory and injunctive relief.

COUNT II

As-Applied Violation of Plaintiffs’ Rights to Free Speech Under the First and Fourteenth Amendments (42 U.S.C. § 1983) – Event Security Policy

(Defendants Van Der Kley, and Kalafut)


Complaint.


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96. Regulations requiring a permit and fee before authorizing public speaking are

prior restraints on speech that are presumptively unconstitutional. Forsyth Cnty., Ga. v.

Nationalist Movement, 505 U.S. 123, 130 (1992).

97. Such fees cannot be based on the level of hostility government officials imagine

may be engendered by speech, or on the anticipated listeners’ reaction to the speech. Id. at

134-35. Regulations requiring permits and/or imposing fees are impermissibly content-based

if they permit a determination of fee amount grounded on such factors, even if the amount is

tied to the predicted administrative expense or the cost of maintaining public order. Surita v.

Hyde, 655 F.3d 860, 876 (7th Cir. 2011) (citing Forsyth Cnty.).

98. Any ordinance that imposes a fee upon the exercise of First Amendment rights

must be content-neutral, strictly limited to recouping actual administrative costs, and bounded

by narrowly drawn, reasonable and definite standards.

99. Defendant Kalafut has stated that whether to require “security” at RSO on-

campus events is determined “case-by-case” based on whether speakers are expected to be

“controversial,” or to convey “a message” or “a political stand” to which “there are dissenting

views.”

100. Defendant Van Der Kley oversees the Public Safety Department at WMU that is

charged with implementation and enforcement of the Event Security Policy challenged herein.

Defendant Van Der Kley made the decision to deny KPC room access based on the security

policy.

101. Defendants’ application of the RSO Handbook’s Event Security Policy to Plain-

tiffs to require the payment of $186 in security fees, based on a supposed need for a security


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officer at the keynote, rested entirely on anticipated reaction to Boots Riley’s appearance, and

was thus impermissibly content-based.

102. WMU’s policy flaunts long-standing Supreme Court precedent holding that

such fees, if lawful at all, cannot “depend on the administrator’s measure of the amount of

hostility likely to be created by the speech based on its content.” Forsyth Cnty., 505 U.S. at

134. “Listeners’ reaction to speech is not a content-neutral basis for regulation” and “cannot

be financially burdened, any more than it can be punished or banned, simply because it might

offend a hostile mob.” Id. at 134-35. These principles plainly apply to scholastic settings.

E.g., Glowacki ex rel. D.K.G. v. Howell Pub. Sch. Dist., No. 2:11–cv–15481, 2013 WL

3148272, at *7 (E.D. Mich. June 19, 2013).

103. Defendants followed no discernible criteria in determining whether security was

necessary for KPC’s event, and set the amount of the fee through the exercise of unbridled

discretion.

104. KPC was given no opportunity to challenge either Defendants’ conclusion that

security was necessary for the Boots Riley keynote event or that the amount of the fee was

arbitrary and excessive.

105. By imposing speaker- and content-based fees as a condition to allowing KPC to

use a WMU lecture hall for the 35th Annual Peace Week keynote speech, Defendants violated

Plaintiffs’ rights to free expression.

106. Defendants Van Der Kley and Kalafut violated a clearly established constitu-

tional right of which all reasonable college administrators and staff should have known,

rendering them liable to Plaintiff under 42 U.S.C. § 1983.


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107. The denial of constitutional rights is irreparable injury per se, and Plaintiffs are

entitled to declaratory and injunctive relief. Additionally, Plaintiffs Clark and Wiersma

experienced emotional injury as a consequence of being denied their First Amendment rights.

108. Plaintiff is entitled to a declaration that Defendants violated their First Amend-

ment rights. Additionally, they are entitled to damages in an amount to be determined by the

evidence and this Court, and the reasonable costs of this lawsuit, including reasonable

attorneys’ fees.

COUNT III

Facial Challenge to Violation of Right to Free Speech Under the Plaintiffs’ First and Fourteenth Amendment Rights (42 U.S.C. § 1983) – Event Security Policy

(Defendants Dunn, Brown, Van Der Kley, and Kalafut)


Complaint.

110. WMU’s Event Security Policy imposes a presumptively invalid prior restraint

on speech. Forsyth Cnty., 505 U.S. at 130; McGlone v. Bell, 681 F.3d 718, 733 (6th Cir.

2012).

111. Regulations that grant an administrative body or government official unfettered

discretion to regulate the licensing of activities protected by the First Amendment are

unconstitutional. Kunz v. New York, 340 U.S. 290, 294 (1951). Such unrestricted discretion

increases the likelihood that the government official may discriminate based upon the content

of the “speech” or the viewpoint of the speaker. City of Lakewood v. Plain Dealer Publ’g

Co., 486 U.S. 750, 763-64 (1988).

112. WMU’s Event Security Policy gives its Department of Public Safety and

Registrar unfettered discretion to determine when “RSOs may need to request security

services” in order to secure on-campus space to hold events that feature or include expressive


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activity. This empowers public officials to administer the policy on the basis of impermissible

factors or through arbitrary application.

113. WMU’s Event Security Policy gives its Department of Public Safety unfettered

discretion to determine the amount of “security” fees that RSOs must pay in order to secure on-

campus space to hold events that feature or include expressive activity. This enables public

officials to impose an arbitrary tax on controversy.

114. WMU’s Event Security Policy governing expression is unconstitutionally

overbroad, does not serve a significant governmental interest, is not narrowly drawn, and

impermissibly restricts student expression. It burdens far more speech than is necessary to

serve the asserted interest of maintaining campus safety and security.

115. WMU’s Event Security Policy restricting speech fails to provide notice of the

obligations that the policy creates, and is unconstitutionally vague on its face in violation of the

First Amendment and of the due process guarantee of the Fourteenth Amendment to the U.S.

Constitution.

116. Under WMU’s policy Defendant Kalafut determines “case-by-case” whether to

impose security requirements based on his assessment of a particular speaker or performer.

Security requirements are imposed for speakers considered to be “controversial,” that have “a

message” or “a political stand,” and to whom “there are dissenting views.”

117. Defendant Brown oversees implementation and enforcement of the Event

Security Policy challenged herein.

118. Defendant Van Der Kley oversees the Department of Public Safety that

implements and enforces the Event Security Policy challenged herein.


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119. Defendant Dunn is responsible for WMU’s administration and policy-making,

and has ultimate authority to approve the Event Security Policy challenged herein.

120. As a direct result of the Defendants’ Event Security Policy, RSOs and students

at WMU are deprived of their right to free speech under the First and Fourteenth Amendments

to the Constitution.

121. As a legal consequence of the Defendants’ violation of Plaintiffs’ and other

similarly situated RSOs’ First and Fourteenth Amendment rights, as alleged above, and of

WMU students, all of which is irreparable injury per se, Plaintiffs are entitled to declaratory

and injunctive relief, damages, and the reasonable costs of this lawsuit, including reasonable

attorneys’ fees.

COUNT IV

Facial Challenge to Violation of Right to Free Speech Under the Plaintiffs’ First and Fourteenth Amendment Rights (42 U.S.C. § 1983) – Flyer/Poster Guidelines

(Defendants Dunn and Anderson)


Complaint.

123. Students have a First Amendment right to engage in expressive activities and to

distribute written materials in public areas of a state university without obtaining advance

permission from government officials. Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981);

Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667 (1973).

124. Advance notice and permitting requirements significantly burden freedom of

speech. WMU’s Posting guidelines and policies impose a presumptively invalid prior restraint

on speech. Forsyth Cnty., 505 U.S. at 130; McGlone v. Bell, 681 F.3d 718, 733 (6th Cir.

2012).


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125. Any such permitting requirement violates the First Amendment unless it

contains narrow, objective, and definite standards to guide the licensing authority.

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969).

126. Restrictions on expressive activity are void for vagueness if their terms are not

clearly defined such that a person of ordinary intelligence can readily identify the standards to

be applied. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

127. WMU’s Flyer/Poster Guidelines and policies impose a prior restraint. Posters

are restricted to approved bulletin boards in academic and general buildings, but they may not

be placed there without SALP approval and an “Approved” stamp on the poster.

128. WMU’s Flyer/Poster Guidelines and policies unconstitutionally prohibit RSOs

and students from engaging in spontaneous postings and/or promoting impromptu expressive

events due to the requirement to seek permission for posting from SALP at least seven days in

advance and to allot additional time for necessary university approval – two days for SALP and

an undefined period for the Office of Residential Life.

129. WMU’s Flyer/Poster Guidelines are vague insofar as their requirements that

posters must “conform to requirements of generally accepted standards of good taste” without

defining those standards.

130. WMU’s Flyer/Poster Guidelines lack criteria to guide SALP’s decisions

whether to approve posters and gives SALP the authority to deny approval for failure of

posters to comport with an undefined “civility” requirement.

131. The prior restraints of the WMU Flyer/Poster Guidelines also apply to signs to

be posted in campus residence halls, which the Office of Residence Life must approve and

post. The policies also limit alternative channels of communication such as sliding flyers


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under residence hall room doors and/or posting in common areas other than corridor bulletin

boards.

132. Defendant Dunn is responsible for WMU’s administration and policy-making,

and has ultimate authority to approve the Flyer/Poster Guidelines challenged herein.

133. Defendant Anderson oversees implementation and enforcement of the

Flyer/Poster Guidelines challenged herein.

134. As a direct result of the Defendants’ Flyer/Poster Guidelines, RSOs and

students at WMU are deprived of their right to free speech under the First and Fourteenth

Amendments to the Constitution.

135. Violation of Plaintiffs’ First and Fourteenth Amendment rights is irreparable

injury per se. Consequently, Plaintiffs are entitled to declaratory and injunctive relief, and the

reasonable costs of this lawsuit, including reasonable attorneys’ fees.

COUNT V

Declaratory Judgment and Injunction (28 U.S.C. § 2201, et seq.)


Complaint.

137. An actual controversy has arisen and now exists between Plaintiffs and

Defendants concerning Plaintiffs’ rights under the United States Constitution. A judicial decla-

ration is necessary and appropriate at this time as to Counts I through IV above.

138. Plaintiffs desire a judicial determination of their rights against Defendants as

they pertain to Plaintiffs’ right to speak without being subjected to content-based facilities

access requirements, Event Security policies, and/or Flyer/Poster Guidelines that impose prior

restraints on speech, give school officials unfettered discretion whether to allow expression and


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under what conditions, and that are vague, overbroad, and not narrowly tailored to serve a

substantial governmental interest.

139. To prevent further violation of Plaintiffs’ constitutional rights by Defendants, it

is appropriate and proper that a declaratory judgment issue, pursuant to 28 U.S.C. § 2201 and

Fed. R. Civ. P. 57, declaring WMU’s Event Security policies and Flyer/Poster Guidelines

unconstitutional.

140. Pursuant to 28 U.S.C. § 2202 and Fed. R. Civ. P. 65, this Court should issue a

permanent injunction prohibiting the Defendants from enforcing their restrictions on Plaintiffs’

expressive activities to the extent they are unconstitutional, to prevent the ongoing violation of

Plaintiffs’ constitutional rights. Plaintiffs and their fellow RSOs, and WMU students, are

suffering irreparable harm from continued enforcement of WMU’s unconstitutional policies,

monetary damages are inadequate to remedy their harm, and the balance of equities and public

interest both favor a grant of injunctive relief.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Kalamazoo Peace Center, Jessica Clark and Nola Wiersma

respectfully requests that the Court enter judgment against Defendants and provide Plaintiffs the

following relief:

A. A declaratory judgment stating that Defendants’ Events Security policy and

Flyer/Poster Guidelines, facially and as-applied to Plaintiffs, and the Room Reservation Policy

as-applied to Plaintiffs, are unconstitutional facially and as-applied, and that they violate

Plaintiffs’ rights as guaranteed under the First and Fourteenth Amendments to the United States

Constitution;


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B. A permanent injunction restraining enforcement of Defendants’ unconstitutional

Events Security policy and Flyer/Poster Guidelines and their underlying enforcement practices,

and of Defendants’ unconstitutional enforcement of their Room Reservation Policy;

C. A declaratory judgment that Defendants’ censorship of Plaintiffs’ expressive

activity violated their First and Fourteenth Amendment rights;

D. Monetary damages in an amount to be determined by the Court to compensate

Plaintiffs for the impact of a deprivation of fundamental rights;

E. Plaintiffs’ reasonable costs and expenses of this action, including attorneys’ fees,

in accordance with 42 U.S.C. § 1988, and other applicable law; and

F. All other further relief to which Plaintiffs may be entitled.

VIII. DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury of all issues properly triable by jury in this action.


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DATED: October 20, 2014

Respectfully submitted,

ROBERT CORN-REVERE

(motion for admission pending) [email protected]

RONALD G. LONDON [email protected]

LISA B. ZYCHERMAN [email protected]

DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Suite 800 Washington, DC 20006 Telephone: (202) 973-4200

By: /s/ Matthew J. Hoffer BRADLEY SHAFER

[email protected] MATTHEW J. HOFFER

[email protected] SHAFER & ASSOCIATES, P.C. 3800 Capital City Blvd, #2 Lansing, MI 48906-2110 Telephone: (517) 886-6560 Attorneys for Plaintiffs Kalamazoo Peace Center, Jessica Clark, and Nola Wiersma


EXHIBIT A

Case 1:14-cv-01087-GJQ Doc #1-1 Filed 10/20/14 Page 1 of 7 Page ID#27

RSO HANDBOOK 2014 – 2015

GENERAL DISCLAIMER Reasonable changes may be made to this document without notice.

Information describing any changes will be made available.

Published by Student Activities and Leadership Programs, Division of Student Affairs, Western Michigan University. Revised for the 2014-2015 academic year.


7

POSITION IN WESTERN STUDENT ASSOCIATION Every organization has the option to participate in campus issues via the Western Student Association (WSA). All organizations are granted one position in the WSA Senate. See the WSA website for more information: www.westernstudentassociation.org.

MEDIATION AND CONFLICT RESOLUTION SERVICES Periodically, RSOs have an internal issue that may need mediation from an unbiased, outside entity. SALP has trained professionals who can assist an organization in achieving a resolution diplomatically. However, SALP will not intervene unless asked by all parties to enter as a mediator. To set up a meeting please contact the RSO Advisor at [email protected].

ROOM RESERVATIONS

ACADEMIC BUILDINGS Academic buildings may be available for use by organizations on a first-come, first-served basis. Reservation policies and procedures may vary depending on the individual building. For more information on how to reserve space in academic buildings, please go to http://www.wmich.edu/activities/roomrequest.html.

BERNHARD CENTER

There are 23 meeting rooms available for conferences, banquets, and meetings for all Registered Student Organizations (RSOs), University departments, professional organizations and the community. Specific policies and procedures on how to reserve a room in the Bernhard Center can be found here http://www.wmich.edu/studentcenter/policies/rso.html.

KIVA ROOM The Kiva Room is an all-purpose meeting room in the lower level of the Faunce Student Services Building. All RSOs will be charged for any cleaning costs incurred during their time spent in the Kiva Room. Reservation requests are made online at http://www.wmich.edu/activities/roomrequest.html. MULTICULTURAL CENTER The Multicultural Center (MCC) at Western Michigan University provides the University student population with spaces for study, meetings, projects, and conversation. The MCC is located in the Adrian Trimpe Building on campus. For reservations, see the Office of Diversity Inclusion website at http://www.wmich.edu/diversityandinclusion/mcc. RESIDENCE HALLS Residence hall spaces are not open to the public. Lounge and meeting room space is intended for use by residents of the hall only. Resident requests for space are fielded by Hall Directors.

Residents can host a group/organizational meeting in the halls, but not on a regular basis. If the event the resident is hosting is a recruitment meeting, the HD should review posting and soliciting policies with the resident.

Internal (created by residence hall students) faith-based study groups that meet on a weekly basis can be approved.

For more questions about this policy, please contact Laura Darrah, Assistant Director of Residence Life at [email protected] or (269) 387-4463.

RESERVING OUTDOOR SPACE Reserving outdoor space is done through the Bernhard Center main office and the procedures on how to reserve outdoor space can be found at http://www.wmich.edu/activities/outdoor.html. For a list of policies regarding the use of outdoor space, please see page 14 of this handbook.

OUTDOOR SPACE LOCATIONS

Goldsworth Valley Pond (Gazebo included)

The Fountain Plaza (Approval from Miller, Dalton, and Shaw staff may be requested)

The Pavilion


http://www.westernstudentassociation.org/

mailto:[email protected]

http://www.wmich.edu/activities/roomrequest.html

http://www.rso.wmich.edu/

http://www.rso.wmich.edu/

http://www.wmich.edu/studentcenter/policies/rso.html

http://www.wmich.edu/activities/roomrequest.html

http://www.wmich.edu/diversityandinclusion/mcc

mailto:[email protected]

http://www.wmich.edu/activities/outdoor.html

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POLICIES & PROCEDURES

A student who chooses to enroll at Western Michigan University assumes the obligation for conduct that is compatible with the University’s mission as an educational institution. While students have the privilege to enroll at the institution of their choice, choosing to enroll at Western Michigan University requires a student to become aware of, and abide by, the behavior standards of the University. Ignorance of acceptable boundaries of student behavior as contained in the RSO Handbook and/or Student Code is not a basis for excusing inappropriate behavior. SALP has the official role of recognizing student organizations at WMU. Members of RSOs must adhere to all current University and SALP policies and procedures and all those developed in the future.

ADVERTISING POLICIES CHALKING POLICY

For WMU purposes, “chalking” is defined as a temporary and nondestructive activity on most outdoor horizontal surfaces. Additional guidelines are cited below:

1. Use only “environmentally friendly” (nontoxic) hand-held stick chalk. No spray chalk is permitted. 2. The RSO’s name must appear within all chalk messages. 3. Chalk must not leave a color residue after general exposure to the natural elements (i.e., rain, snow, etc.). 4. Chalking must be at least 20 feet away from entrances and exits of all buildings in order to protect carpeting. 5. Chalking must be limited to horizontal surfaces (mainly sidewalks) where the natural elements have full exposure. No chalking in tunneled areas, under tents, on buildings, under building overhangs, etc. is permitted. 6. Chalking is not permitted on any vertical surfaces, steps, buildings, sculptures, etc. 7. Violators will be subject to full restitution in accordance with the Student Code, Article IV, Section B, 17 (“Unauthorized use/destruction/defacing of property”).

ROCK PAINTING POLICY The rocks between Goldsworth Valley Pond and Gilkison Avenue have been designated for painting by Registered Student Organizations on campus. No other painting of any sort is permitted on any University property. Violators will be subject to full restitution in accordance with the Student Code Article IV, Section B, 17(“Unauthorized use/destruction/defacing of property”). Guidelines for painting the rocks:

1. Painting the rocks is on a first-come, first-use basis. All organizations have equal access to the rocks.

2. Clubs and organizations may not cover or “guard” the rocks after painting them and thus may not prevent other organizations from painting over their work.

FLYER/POSTER POSTING GUIDELINES

Organizations may post or distribute literature on University property. However, the University expects that poster and literature content will conform to established requirements and generally accepted standards of good taste. The specific content of posters and literature will be the responsibility of the person or organization submitting posters or literature for distribution. The person or organization will be expected to assume all responsibility for poster content and to hold Western Michigan University harmless from any and all


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liability that may arise as a result of any posting or distribution. This pertains to all damages, costs, attorney fees and discovery costs that may result from any legal action. While WMU promotes freedom of expression, the University also affirms civility and, at its discretion, reserves the right to control conditions of time, place, and manner under which posters and literature are distributed. Publications must comply with the regulations listed below:

CAMPUS POSTING: GENERAL PROVISIONS

1. Posters or flyers must not exceed 14” by 22.”

2. To post flyers on approved bulletin boards in the academic buildings and general buildings, flyers must be approved by Student Activities and Leadership Programs (SALP) Office. If the material is not stamped for posting, the material will be removed and restitution for the cost of labor will be charged to the organization.

3. Postings are not permitted on any trees, buildings, walls, doors, windows, telephone poles, wires, fire hydrants, parking meters, trashcans, cars or public signs on campus. All violators will be charged full restitution for the cost to remove such literature from the unwarranted areas.

4. The Kiosks located outdoors around campus are the only areas for unapproved postings. These are the ONLY public posting locations on WMU’s campus.

5. The literature must contain the full name of the sponsoring organization, date, time, and event location.

6. All literature must be received by the SALP office AT LEAST (7) SEVEN BUSINESS DAYS prior to the event/program taking place.

7. The Posting Guidelines Form is to be completed by the student organization/department representative requesting the flyer to be approved.

8. If not approved, the organization/department will be contacted in an effort to approve the literature.

9. Please allow (2) TWO BUSINESS DAYS for the approval process to take place.

10. Programs or projects sponsored in whole or part by the Student Assessment Fee must include the statement “SAF Funded” on all publicity documents. Failure to do this may result in subsequent loss of funding.

11. It is prohibited to post literature over other validly placed flyers or posters.

12. Postings may be tacked or stapled on bulletin boards or taped on kiosks. Other methods of affixing postings or types of adhesives are not permitted.

BERNHARD CENTER (BC) Signs to be posted in the Bernhard Center must first be approved by SALP. Copies of the posting should be delivered to the Student Activities and Leadership Programs Office. STUDENT RECREATION CENTER (SRC) Signs to be posted in the Student Recreation Center must be approved by SALP prior to being submitted to University Recreation. A maximum of 12 copies of promotional materials may be submitted for posting. The SRC also has a display case available for a weekly fee of $5. For more information, please contact Cindy VanderWoude at (269) 387-3115.

RESIDENCE HALL POSTING GUIDELINES Organizations wishing to advertise in the residence halls must have all flyers stamped “Approved” by the Office of Residence Life. An original flyer should be brought to the Residence Life office, located in Faunce Student Services Building, to be approved for distribution. Copies of approved flyers are to be returned to the Office of Residence Life, and Residence Life staff will post them in the halls.


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APPENDIX D: EVENT PLANNING

PRE-PLANNING

QUESTIONS TO CONSIDER:

Does a contract need to be signed for anything associated with this event?

If event is held in the community, how will this activity affect the neighborhood?

What liability does the organization run the risk of incurring?

What state laws or city ordinances have the potential of being violated?

What safeguards will be used to keep these laws from being violated?

If using officers/security, how will they maintain control over the activity?

What will the officers/security do if this activity gets out of hand?

List the possible problem situations that could present themselves at your activity.

List how you will solve each of the situations listed above.

Do you have an established procedure to follow in case of emergencies?

Could you convince a reasonably prudent person that your event is not dangerous?

Is the potential liability for the organization worth the potential benefits to the organization?

Has this activity been reviewed with your organization advisor?

CHECKLIST Assess organization’s interest in the event or activity Answer basic questions Follow these steps:

Identify needs

Develop program goals and objectives

Develop an action plan

Implement that action plan

Evaluate that event

Document for the future

EVENT CHECKLIST

FUNDING AND PAYMENT Make a budget Identify potential funding sources/allocating bodies Contact RSO Financial Advisor for assistance with paperwork, including contracts Determine paperwork deadlines in advance and plan accordingly

TRANSPORTATION AND LODGING Connect with agent/artist/for arrival/transportation information Transportation rental Hotel confirmation

PROMOTIONAL CONSIDERATIONS Complete marketing plan Get advertising materials approved and distributed Use campus media and advertising sources: WIDR 89.1 FM, EduCABLE, MTV U, Western Herald, Student Events Calendar

VENUE/EVENT SPACE Check with venue about reservation/set up/catering (if needed) Contact SALP for outdoor space reservations Check on any special requirements (security, stage, room set-up, etc.) Technical issues


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Notify SALP if attendance will be larger than 100 VOLUNTEERS

Setup/Tear Down/Clean Up Greeters/Tickets/Counters On- Stage/Sound Help/Announcements

EVENT SECURITY

RSOs may need to request security services from the WMU Department of Public Safety for a particular event. Generally, these services must be requested a minimum of ten (10) days prior to the planned event. Moreover, these services must be paid for in advance by cash, certified check, money order, or by a campus financial transaction. The WMU Department of Public Safety staff makes the final decision on the number of officers needed for each scheduled event to maintain campus safety and security. Call (269) 387-5573 for details.

EVENT CAMPUS MEDIA & INFORMATION SOURCES

89.1 WIDR-FM 89.1 WIDR-FM is Western Michigan University’s student-operated radio station and an excellent avenue for marketing an event and organization. WIDR is located at 1501 Faunce and staff can be reached at (269) 387-6301. Press releases can be sent to [email protected].

WESTERN HERALD

The Western Herald is Western Michigan University’s student-operated newspaper. Student organizations can purchase ads and sometimes gain free coverage or publicity of an event by notifying the Herald staff in advance. The Western Herald is located at 1517 Faunce and staff can be reached at (269) 387-2092.

WMU NEWS

Western Michigan University’s faculty and staff newspaper is available to publicize campus-wide events. WMU News is located in Walwood Hall and can be reached at (269) 387-8400.

EduCABLE

EduCABLE is the campus cable system. RSOs can promote their events by posting a message on this EduCABLE channel. There is NO CHARGE for this service. Call (269) 387-4997 for more information or download an announcement form from our website at: http://www.wmich.edu/it/facstaff/educable.html.

MTV U MTV U, formerly known as CTN (College Television Network), Channel 35 is a music video and bulletin board system that is available to student organizations that want to post dates and times of programs for all students. This channel is monitored by the Student Recreation Center. For more information on posting to MTV U, please contact Cindy at (269) 387-3115.


http://www.wmich.edu/it/facstaff/educable.html

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