9th Circuit judge urges settlement in campus-speech case

Thursday, October 22, 2009

TUCSON, Ariz. — Arizona State University and an anti-abortion student group should consider settling a three-year legal battle over a campus free-speech issue, a federal judge said this week.

ASU Students for Life’s 2006 lawsuit argued that the university discriminated against students by imposing an insurance requirement for on-campus events. The university has since implemented and modified a written policy that loosens the requirements.

“It sounds like you have achieved a victory,” Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, told Heather Gebelin Hacker, an Alliance Defense Fund attorney representing the student group.

But Hacker said during arguments Oct. 20 at the University of Arizona law college that there’s no certainty that the university won’t change its policies again without a court ruling in favor of protection of free speech on campus. The trial court ruling being appealed went in favor of the university, Hacker noted.

“This case is really about the principle,” she said, adding that students need “a bright-line rule.”

Michael Goodwin, an assistant attorney general representing the university, said the lawsuit still is seeking nominal damages from two university officials in connection with enforcement of the policy.

Goodwin assured the court that the university would not revert to its previous policy, but Hacker said that assurance didn’t have the force of law.

“Oh, come on,” replied one of the judges, retired Supreme Court Justice Sandra Day O’Connor.

A desire by the plaintiffs to be awarded attorneys fees also could be at play, Goodwin said in response to a question by Kozinski.

The judge said he’d rather not have to rule on the constitutionality of a policy that no longer is in use.

During a question-and-answer period following arguments on the ASU case and another, Kozinski said he regularly urges lawyers to try to have their clients settle cases.

That can be better than taking the risk involved in having the court decide the outcome and achieve a result more in line with the parties’ goals, he said.

“I always consider it a victory when the parties wind up settling,” he said.

While sometimes litigation can’t be avoided, a different type of resolution “may preserve that resolution that lets them go forward on a positive note,” he said.

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