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A conservative pro-life organization at Arizona State University, best known for displaying 18-foot, graphic images of aborted fetuses on the campus mall last spring, is suing ASU for requiring the group to pay an insurance fee before the exhibit, claiming the charge violates its First Amendment rights. If this case makes it to trial, it could set a new precedent regarding free speech on Arizona college campuses.
ASU Students for Life claims in its lawsuit that the insurance requirement for events held on campus should not apply to student groups engaging in expressive speech and is applied unequally to organizations on campus. The university has no written policy in place regarding insurance or fee requirements and admits decisions are made on a case-by-case basis.
The suit was filed in July; late last month, ASU responded, denying all allegations.
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Though it's fighting an institutional giant, Students for Life might have a chance. The Alliance Defense Fund, which is representing the students pro bono, has a history of successfully litigating similar cases for pro-life organizations in Boulder, Houston and Austin, reaching a settlement in the Colorado case and winning the Texas lawsuits.
Joe Russamano, an ASU journalism professor and First Amendment expert not involved in this lawsuit, says cases like these help define just how far free speech goes on a university campus.
"What is very important is whatever regulations there are have to be applied equally," he says. "If they're not, that raises red flags."
ASU Students for Life says the university discriminated against the group by charging for insurance to host right-to-life events on the public campus during the spring 2006 semester.
In the lawsuit, Students for Life claims the university enforces a "system in which ASUSL's ability to engage in protected speech is contingent upon the financial status of the student organization."
All university administrators named in the suit declined to comment on the case.
This is apparently the first time a student organization has accused ASU of limiting free speech through an insurance requirement, but cases litigated by Alliance Defense Fund in other states have faced similar university tactics.
The controversy started in December 2005 when Students for Life decided it wanted to hold a pro-life demonstration in February and bring in signage from an anti-abortion group called Justice for All.
Justice for All, based in Wichita, Kansas, is notorious for stirring up controversy on college campuses with its signs comparing abortion to genocide and featuring what the group claims to be aborted fetuses positioned next to dimes, to show how small they are. JFA has also come under fire for its position that abortion leads to breast cancer and cervical cancer. Mike Miller, a spokesperson for the National Cancer Institute, says after a 2003 workshop of more than 100 pregnancy and breast cancer experts, the institute published a study "definitively showing there is no link."
The question at hand, really, is whether ASU implemented its rules in order to limit the anti-abortion group's ability to express itself.
In an e-mail interview, Christopher White, an ASU justice studies senior who is named as one of the plaintiffs in the case, says, "The unborn are voiceless and we feel called to speak for them, but ASU has made clear that it prefers only one side of the debate to be heard."
The students are passionate about their own cause, but say they want to make sure the rights of all student groups are protected.
White says he feels the university has treated him and his peers like second-class citizens.
"We felt betrayed by the university," he writes. "ASU should foster a marketplace of ideas and allow the full and unfettered expression of all views."
On December 1, 2005, White submitted an outdoor event and sales request, per university policy, in order to reserve space for the Justice for All exhibit. There is no mention, anywhere on this form, of the need to purchase insurance before an event. White was told he could not reserve all the space requested. ASU's campus is divided into "zones," and White was told student groups could only reserve one zone per day. When he asked why, White claims he was told by Judy Schroeder "that's just the way it is."
On December 19, White was informed that Justice for All would need to pay a $300 vendor fee and the students would also need to provide insurance. He responded that JFA is a nonprofit entity "engaged solely in First Amendment activities," and the vendor fee should not apply. ASU waived the fee, but told the students they were required to pay a $50 reservation fee and insurance.
There is no written policy requiring a $50 reservation fee for student organizations. The university "waived" the fee, but not the insurance requirement.
The students were told in a February 15 letter from Matthew Walton, one of ASU's lawyers, that "there are no records or formal written policies that would apply to this situation. In non-vendor situations decisions are made on a case-by-case basis." In the same letter, the students were told that if they were unable to buy insurance, the university would cancel their event.
White obtained an insurance quote for $1,200 far more than the student group could afford to pay. He later got a quote for $371, still more money than his group had. Finally, with Arizona Right to Life acting as a rider on the policy, the students got a rate of $103.25.
Heather Gebelin Hacker, a lawyer for the Alliance Defense Fund representing the students, says the fees were an attempt to prevent the students from holding their event.
"We're talking about a group of college students expected to pay hundreds of dollars to exercise their First Amendment rights," she says.
She says the university was unable to produce proof that the insurance requirement was enforced for other student organizations and says even Students for Life held events in the past with no mention of an insurance requirement or reservation fee.
ASU counters that it was within its rights to ask for insurance. It makes no mention of the $50 reservation fee, the $300 vendor fee or the inconsistent zone policy.
Nancy Tribbensee, from ASU's office of general counsel, would not comment on specifics of the case, but denied the students were discriminated against based on the content of their speech.
In an e-mail (New Times was unable to reach her on the phone after leaving several voice messages), Tribbensee says the JFA exhibit required insurance because it involved a complicated, and possibly dangerous, setup procedure each day.
"The physical nature of the exhibits and the risk associated with driving vehicles on the pedestrian mall are what resulted in the insurance requirement," she says.
In April, Students for Life ran into trouble again when the group wanted to set up a table to pass out anti-abortion literature during Dignity of Life Week.
In her e-mail, Tribbensee says student groups don't usually need insurance for these types of activities: "In general, speaking on the mall or handing out pamphlets or pictures would not itself be considered to present the level of risk that would require insurance."
Yet Students for Life was told it would have to provide insurance for all third-party groups who would be sitting with them.
When White got an insurance quote this time around, it came out to $935.80.
"I don't know if there was a culminating moment [in the decision to sue]," says Gebelin Hacker. "But the utter ridiculousness to them [ASU] applying this policy to students just sitting at a table and passing out brochures . . . they had to ask why are we being treated differently."