Federal Court: University of Cincinnati Speech Restrictions on Students Unconstitutional

Students supporting “right to work” amendment cannot be arrested for discussing amendment and gathering signatures on campus

Cincinnati, OH – A federal court today ruled that the University of Cincinnati’s blanket prohibition on student political speech on campus violates the First Amendment. The ruling, made by Judge Black of the Cincinnati division of the Southern District of Ohio, paves the way for members of the student group Young Americans for Liberty (“YAL”) to advocate and collect signatures for the Ohio Workplace Freedom Amendment on campus.

The 1851 Center for Constitutional Law, which also drafted the Workplace Freedom Amendment, took up the students’ case and challenged UC’s policies after UC threatened to arrest student members of YAL if they attempted to gather signatures for the right-to-work cause on campus.

The lawsuit sought recognition that (1) the First Amendment applied to public university property, such as the University of Cincinnati; (2) signature-gathering for petition drives is a protected form of political speech; and (3) UC’s requirement that all UC students register up to 15 days ahead of time before engaging in any political speech on campus violates the First Amendment.

In his decision, Judge Black emphasized “It is simply unfathomable that a UC student needs to give the University advance notice of an intent to gather signatures for a ballot initiative. There is no danger to public order arising out of students walking around campus with clipboards seeking signatures.” The order, an across-the-board rebuke to UC’s policies, enjoins UC from:

  • “Requiring prior notification for the solicitation by students of signatures for petitions;”
  • “Prohibiting all solicitation by students of signatures for petitions in any designated public forum, including the Free Speech Area, the outdoor spaces described in the MainStreet Event Guide, and campus sidewalks;”
  • “Requiring that all student ‘demonstrations, picketing, or rallies’ occur only in the Free Speech Area;”
  • “Requiring 5 to 15 days prior notification for any and all student ‘demonstrations, picketing, or rallies’ without differentiations;”
  • “Imposing or enforcing any policy restricting student speech in any designated public forum, including the Free Speech Area, the outdoors spaces described in the MainStreet Event Guide, and campus sidewalks, that is not individually and narrowly tailored to serve a compelling university interest.

The Court further ordered UC to craft “more narrowly tailored regulations that regulate student expressive activities . . . only as are necessary to serve a compelling government interest.” “UC is an arm of the state that has chased and received state and federal tax dollars since its inception, all in the name of ‘public education,'” said Maurice Thompson, Executive Director of the 1851 Center.

“UC mistakenly seeks to advance its mission of public education by shielding its students from actual education on public policy issues that affect all Ohioans. Fortunately, the First Amendment allows us to protect the education of UC students from their educators; it further protects the right of students to calmly address facts and arguments that UC would rather suppress, and to do so without prior permission.”

The 1851 Center and UC students endured four months of procedural tactics, harassing depositions, and frivolous daily letters by UC’s attorneys, after Ohio Attorney General Mike DeWine authorized $200,000 in state funds to the private law firm of Crabbe Brown, a campaign contributor of Mr. DeWine’s, to defend the clearly unconstitutional University of Cincinnati policies. The 1851 Center represents clients at no cost.

Multiple Ohio colleges and universities maintain speech restrictions similar in kind, although not as extensive, as those of the University of Cincinnati – – the Foundation for Individual Rights in Education recently named UC’s speech policies the worst in the nation. However, these policies are suspect in light of the Court’s clear ruling.

June 12, 2012: Associated Press: Judge: Cincinnati school violated students’ rights

June 12, 2012: Cincinnati.com: Judge rejects UC protest policy; Ruling could set new standard for free speech on campus

June 12, 2012: F.I.R.E.: Federal Court: University of Cincinnati Free Speech Zone Violates First Amendment, ‘Cannot Stand’

June 13, 2012: Fox 19: Student political group wins injunction against U.C. speech restrictions

Read the Young Americans for Liberty v. UC, Complaint here.

Read the Young Americans for Liberty v. UC, Motion for Temporary Restraining Order here.

Read the Young Americans for Liberty v. UC, Motion for Partial Summary Judgment here.

Read the court’s decision here.

High Court Rebukes Attack on Cincinnati Charter Schools

CPS Deed Restrictions Against Charter and Private Schools Illegal, Cincinnati Charter Schools to Remain Open

Columbus – Cincinnati Public Schools’ (CPS) policy of prohibiting the sale of unused available public school buildings to charter schools and private schools is unlawful and must end, ruled the Supreme Court of Ohio. This decision rebuffs CPS efforts to shut down numerous successful charters schools in Cincinnati, and is a considerable victory for charter and private school operators throughout the state.

1851 Center for Constitutional Law represented Theodore Roosevelt Community School, a Cincinnati charter school CPS had sued to shut down. Theodore Roosevelt School had purchased an unused school building located in the Fairmount neighborhood, where all CPS schools are in academic emergency, and 80 percent of families are of minority status, and live in poverty. The school opened in August of 2010, and currently serves nearly 300 students and employs 45 staff members.

CPS attempted to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The 1851 Center asserted such restrictions are void by Ohio’s public policy in favor of school choice, and cheat taxpayers of sales revenue from the buildings.

The Court’s decision, authored by Justice Lanzinger, acknowledged held “. . . the inclusion of a deed restriction preventing the use of property for school purposes in the contract for sale of an unused school building is unenforceable as against public policy.” The Court added, “[t]he restriction, on its face, prevents the free use of property for education purposes . . . Furthermore, the restriction is not neutral; it seeks to thwart competition by providing that the restriction applies to all buyers except CPS itself.”

“The Court’s decision upholds a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson.

“Deed restrictions like the one struck down in this case were devised simply to stop new charter and private schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than amass revenue.”

The Court’s decision suggested promise for the 1851 Center’s overarching approach of using the doctrine “public policy” — the requirement that contract terms are subject to the public interest — to nullify government contract terms that attack school choice and reward special interests. While the Court acknowledged that the doctrine is narrow, it affirms 1851’s position that special scrutiny should apply to government contracts: “in this case, however, involving a contract between a private party and a political subdivision, there is a compelling reason to support application of the doctrine [of public policy].”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools. The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, still pending before Judge Ruehlman.

June 6, 2012: Cincinnati.com: Ohio court: CPS unfair to charters

All briefs in the case can be viewed here.

Oral Arguments from the case can be viewed here.