- The Washington Times - Sunday, December 9, 2018

The University of California, Berkeley has settled a lawsuit brought by conservative groups whose speakers the school worked to blackball, agreeing to pay $70,000 and to make changes more welcoming to future speakers.

The changes at the system’s flagship campus could ripple through academia given Berkeley’s prominent place within it, according to legal experts who said the way the case developed set important First Amendment benchmarks other schools should pay attention to.

“Given Berkeley’s size, prestige and influence, the settlement will likely remind similar institutions of the importance of carefully crafting objective, viewpoint-neutral policies to govern security fees for campus events,” said Will Creeley, senior vice president for legal and public advocacy at the Foundation for Individual Rights in Education.

Young America’s Foundation and Berkeley College Republicans said they felt targeted after they tried to host speakers Ann Coulter, David Horowitz and Ben Shapiro at the famously left-wing campus.

In one case, the school imposed a $5,000 “security fee,” while in another it tried to tell YAF the only available venues were during “dead week” when few students are on campus.

In the event with Mr. Shapiro, the university demanded a last minute $15,000 “security fee” to use one of the biggest auditoriums. A liberal group had paid just $5,000 in fees at the same venue when it hosted Justice Sonia Sotomayor, according to YAF.

“The university was putting out a pretty clear signal it had no interest in hearing the conservative view,” said Mark Trammell, YAF’s associate general counsel.

The groups sued and a federal judge rejected the university’s attempts to dismiss the suit. Mr. Trammell said YAF was preparing to depose administrators and seek reams of documents via subpoena.

“I think the university had an interest in avoiding that situation,” Mr. Trammell said.

Berkeley denied any wrongdoing under the settlement, which was finalized last week.

“The settlement does not require the university to concede that any of plaintiff’s claims of previous viewpoint discrimination have any basis in fact, for they did not,” school spokesman Dan Mogulof said in a statement.

But the school did agree not to permit a “hecklers’ veto,” or the threat of protests, to stymie speakers in the future, more or less guaranteeing the right of diverse viewpoints to be heard and engaged with on campus.

Mr. Trammell considered that step more consequential than the money, which will simply cover YAF’s attorneys’ fees.

“The university was fixing on some subjective estimate for what security would cost and then hitting us with these fees, often at the last minute,” he said. “Ironically, we were having to pay not because of any speech or actions taken by our side, but as insurance against what the other side was threatening to say and do.”

The settlement comes at a time when many conservative speakers have been blocked through so-called “hate speech” rules or fears over protests at conservative events.

A majority of schools surveyed by FIRE were found to have speech codes on their books the organization believes would be “unconstitutional at public universities.”

At Middlebury College in March 2017, Charles Murray was shouted down in an auditorium, and then he and a liberal faculty member accompanying him were physically accosted by demonstrators.

In February 2017, prior to a scheduled appearance by conservative provocateur Milo Yiannopolous, Berkeley authorities stood down as left-wing antifa groups and other agitators rioted and damaged university property.

That event was canceled, and when Mr. Shapiro finally did speak on campus in September 2017 authorities were prepared and large demonstrations against him were loud but not violent.

Mr. Trammell said the settlement with Berkeley is already affecting other battles.

A federal judge in Minnesota asked about it recently in similar litigation against the University of Minnesota’s actions, and YAF sent a letter this week to administrators at the University of Pittsburgh, where administrators hit YAF with a last minute $5,000 “security fee” in an apparent effort to block an appearance by Mr. Shapiro.

“I think schools are looking at this and colleges are watching,” Mr. Trammell said.

• James Varney can be reached at jvarney@washingtontimes.com.

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