Rock for Life-UMBC v. Hrabowski

411 F. App'x 541
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 16, 2010
Docket09-1892
StatusUnpublished
Cited by31 cases

This text of 411 F. App'x 541 (Rock for Life-UMBC v. Hrabowski) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rock for Life-UMBC v. Hrabowski, 411 F. App'x 541 (4th Cir. 2010).

Opinions

Affirmed by unpublished opinion.

Judge CONRAD wrote the opinion, in which Judge NIEMEYER joined. Judge KING wrote a separate opinion concurring in part, dissenting in part, and concurring in the judgment.

Unpublished opinions are not binding precedent in this circuit.

CONRAD, Chief District Judge:

Rock for Life-UMBC, a registered student organization at the University of Maryland, Baltimore County (“UMBC”) and two of its former student-members appeal an award of summary judgment and judgment on the pleadings to the defendants, UMBC officials, on several First Amendment claims brought under 42 U.S.C. § 1983. For the reasons that follow, we affirm.

I.

UMBC is a public honors university located in Baltimore, Maryland, with an enrollment of approximately 13,000 undergraduate and graduate students. Rock for Life is a registered student organization at UMBC with a stated mission “to defend the right of the unborn and to awake consciousness and awareness in the UMBC community about the catastrophic effects of abortion for all persons involved and our moral duty to stop its practice.” Joint Appendix (“JA”) 17.1 In April 2007, Rock for Life submitted a request to UMBC to reserve non-academic campus space in order to display a series of posters known as the Genocide Awareness Project (the “GAP display”). The display is described by its sponsor, the Center for Bio-Ethical Reform, as

a traveling photo-mural exhibit which compares the contemporary genocide of abortion to historically recognized forms of genocide. It visits university campuses around the country to show as many students as possible what abortion actually does to unborn children and get them to think about abortion in a broader historical context.

Id. at 253, 254-55. There are twenty-four different GAP posters, and each comes in a six-foot by thirteen-foot “standard” or four-foot by eight-foot “mini-GAP” display size.

At the time of Rock for Life’s initial request, UMBC operated under a facilities use policy designed to provide recognized student organizations with access to academic and non-academic university property. UMBC evaluated requests based on “room appropriateness,” and it reserved the right to deny any request “dependent upon circumstances.” Id. at 234. The policy also stated that “[scheduling may move an event to a different location without notice. UMBC is not responsible for any costs incurred by a user resulting from a change in location.” Id. at 235.

Rock for Life initially sought permission to present the GAP display at the University Center Plaza, a facility located at the center of several academic buildings on the western side of campus. The request was first sent to Lee Calizo, director of student life, for approval. On April 24th, Calizo emailed then-acting Rock for Life president Alex Vernet to inform him that she [544]*544had viewed a website associated with GAP and was concerned that placing “7ft tall by 22 ft wide” signs in front of the Plaza entrance would restrict access to the building. Id. at 824. In fact, Rock for Life only planned to display four-foot by eight-foot “mini-GAP” signs. However, it does not appear that Rock for Life brought this discrepancy to Calizo’s or any other UMBC official’s attention during their subsequent negotiations.

As word spread of Rock for Life’s request to show the GAP display, UMBC officials discussed how best to handle the controversial nature of the event. The plaintiffs allege Chris Tkacik, UMBC’s in-house counsel, stated that students might feel “emotionally harassed” by the display, and UMBC had a right to prevent such harassment. The plaintiffs contend this alleged comment implicated two additional UMBC speech policies then in place. The first is former Article V, Paragraph B(2)(f) of the Code of Student Conduct, which prohibited “physical or emotional harassment,” although this term was not further defined. Id. at 62. The second is UMBC’s prohibition against sexual harassment, defined as

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
(1) Such conduct has the purpose or effect of unreasonably interfering with an individual’s academic or work performance, or of creating an intimidating, hostile, or offensive educational or working environment; or
(2) Submission to such conduct is made either explicitly or implicitly a term or condition of employment or for participation in a UMBC-sponsored educational program or activity; or
(3)Submission to or rejection of such conduct by an individual is used as the basis for academic or employment decisions.

JA 51. A violation of either provision subjects a student to a range of possible disciplinary measures, including suspension and expulsion from the university.

During a meeting between UMBC, Rock for Life, and the Leadership Institute,2 Rock for Life presented UMBC with a letter requesting a uniformed police presence during the GAP display due to “numerous unprovoked physical attacks from pro-abortion students” during previous exhibitions. Id. at 270. Further, it was Rock for Life’s position that the First Amendment required UMBC to pay the cost of this security measure. The parties, however, never reached a definite agreement on whether police should be assigned to the event, and if so, who should pay for the costs.

On April 25th, 2007, Calizo informed Rock for Life that the GAP display would not be allowed at the University Center Plaza, but could be held at the Commons Terrace instead. The Commons Terrace is a patio area adjacent to the Commons, described as the “hub of student life on campus,” and its positioning within the campus makes it a “congestion point” between residence halls and other campus buildings. Id. at 835, 1356. Rock for Life found the Terrace to be a desirable location and agreed to this compromise. However, Joseph Reiger, Executive Director of the Commons, soon expressed concern that the Terrace was also an inappropriate place for the GAP display. He described steps on the Terrace as hazardous because they are not in a “known sight line.” (JA 1356). He further stated that like Calizo, [545]*545he understood the GAP display to include about twelve five-foot by thirteen-foot signs. Based on these circumstances, Reiger thought the Terrace was an unsuitable venue for three reasons: (1) the GAP signs were too much of a “visual barrier” for that location; (2) the GAP display would not leave adequate space for pedestrians wishing to access the Commons through the Terrace entrance; and (3) the area would become too congested if students had to “flee” from a violent altercation resulting from the display. Id. at 1363. Reiger further stated that his concern about violence arose because of Rock for Life’s letter requesting security, not his past experience with the group or UMBC’s student body.

Based largely on Reiger’s recommendation, Charles Fey, Vice President of Student Affairs, decided to move the GAP display once more from the Commons Terrace to the North Lawn, an open space between the Commons, residence halls and main library.

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