All it took to get them to take this seriously was nearly two years of litigation.
Read the dueling press releases from Young America’s Foundation and Berkeley’s public affairs shop in tandem. YAF’s verdict on the settlement: Total victory. Berkeley’s verdict: Total victory. Well, almost total — Berkeley agreed to pay YAF $70,000 in attorney’s fees. That normally happens to the “winner” in a settlement, doesn’t it?
The dispute here had to do with how the university accommodated big-name righty speakers like Ann Coulter and Ben Shapiro, knowing that their presence on campus was likely to draw out Antifa droogs and like-minded window-smashers. YAF claimed two forms of discrimination. One was the school’s attempt to reduce the pool of protesters by slotting conservative events during odd hours in the morning or early afternoon, when would-be protesters were at class or work, or even to schedule their events during weeks when classes weren’t in session and fewer students were around. The other was charging exorbitant security fees to protect the likes of Coulter and Shapiro, a policy that inevitably amounted to discrimination in practice. A campus that has a problem with left-wing violence will obviously need more security for high-profile right-wing events than left-wing ones. If the speaker or his/her sponsor is forced to pay those fees then left-wing mobs can effectively block them from campus by raising the risk of violence to the point where security becomes unaffordable. The fee policy creates a perverse incentive and a heckler’s veto.
YAF claims it won on all counts:
No longer can UC Berkeley place a 3:00 p.m. curfew on conservative speech. No longer can UC Berkeley ban advertisements for Young America’s Foundation-sponsored campus lectures. And no longer can UC Berkeley relegate conservative speakers to remote or inconvenient lecture halls on campus while giving leftist speakers access to preferred locations.
Further, the policy that allowed Berkeley administrators to charge conservative students $20,000 for security to host Ben Shapiro—an amount three times greater than the fee charged to leftist students to host liberal Supreme Court Justice Sonia Sotomayor—is gone. YAF and UC Berkeley agreed to a fee schedule that treats all students equally. Unless students are handling money or serving alcohol at an event, the security fee will be zero.
This win for free speech—a blow to radical Antifa mobs—means university facilities will be available to students on a first-come, first-served basis. No longer will the community’s reaction to speech be factored into decisions regarding lecture venues, meaning intolerant leftists cannot use the “heckler’s veto” to determine who is allowed to speak or where they’re permitted to appear.
All that and 70 large in attorney’s fees too. Berkeley insists it’s a big nothingburger, meanwhile:
Following initial hearings in the case, U.S. District Court Judge Maxine Chesney ruled in late April that the campus’ Major Event Policy is, in fact, constitutional. The court rejected plaintiffs’ contentions that the policy gives campus administrators the ability to engage in viewpoint discrimination. Now, the plaintiffs have agreed to abandon their remaining legal claims that past events have been managed according to “secret” unconstitutional policies and practices. The settlement does not require the University to concede that any of the plaintiffs’ claims of previous viewpoint discrimination have any basis in fact, for they did not. The settlement agreement confirms that any and all efforts by plaintiffs to prove viewpoint discrimination by the campus have been abandoned…
“Given that this outcome is all but indistinguishable from what a courtroom victory would have looked like, we see this as the least expensive path to successful resolution of this lawsuit,” said Mogulof. “While we regret the time, effort and resources that have been expended successfully defending the constitutionality of UC Berkeley’s event policy, this settlement means the campus will not need to spend hundreds of thousands of dollars in unrecoverable defense costs to prove that UC Berkeley has never discriminated on the basis of viewpoint.”
It’s true that Judge Chesney ruled earlier this year that she was “unpersuaded” that Berkeley engaged in intentional viewpoint discrimination with its policy for hosting Major Events, but she also ruled that YAF’s lawsuit against the security-fee policy could proceed on equal protection grounds. That came three months after the DOJ filed a statement of interest in the case siding with YAF. If the suit had gone forward, it had the potential to drag on for awhile and to become a culture-war rallying point for the right, maybe led by Trump himself. So they paid YAF to go away and agreed to tweak their policies.
But which side is telling the truth, YAF or Berkeley, in claiming that it won? To answer that you’ll have to spend some time with the updated Major Events policy itself, which both sides have provided. The parts of the current policy that have been removed are in yellow text with a line through them; the parts that have been added are in yellow text without the line. Here’s the new policy on how the school will go about determining if an event poses a threat to campus safety:
There’s some language thrown in there about making sure the factors weighed are “viewpoint- and content-neutral” but the current policy also says something about that. Berkeley’s argument all along here, as I understand it, has been that the school has no problem with conservatives coming to campus to speak. It’s the protesters that have the problem. If the protesters decide to express their unhappiness through violence then the school may be faced with a security situation that requires it to withhold approval of the event. There’s no formal “viewpoint” consideration involved there — in theory left-wing events would also need to be shut down if angry right-wing mobs gathered — but in practice there is due to the greater number of lefties on campus and their greater propensity to burn things when an ideologue from the other side invades their turf. I don’t know that the new policy advances the ball much.
The new security policy seems better, though:
They jettisoned the factors that might inflate the fee for “basic event security” as the threat to a particular event rises, which is good. And it looks like Major Events will no longer face special fees that non-Major ones do, which is also good. Presumably that means more reasonable fees, even if the schedule isn’t available online yet. The fee issue is important because it’s not limited to Berkeley: YAF was just stuck with another security fee in excess of $5,000 by the University of Pittsburgh, where Shapiro spoke a few weeks ago. They paid it under protest; there may be a lawsuit brewing there too — which is a good thing, really. As expensive as litigation is, it’s time for some judicial guidance to state schools on whether they can shake down conservatives to help pay for their campus-radical problem.