UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KALAMAZOO PEACE CENTER, JESSICA CLARK, and NOLA WIERSMA, Plaintiffs, v. JOHN M. DUNN, LAURA M. THOMAS, JAN VAN DER KLEY, ROBERT J. BROWN, BLAINE D. KALAFUT, and DIANE ANDERSON, Defendants.
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Case No. COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES JURY TRIAL DEMANDED
Plaintiffs Kalamazoo Peace Center, Jessica Clark, and Nola Wiersma complain of
Defendants and allege:
I. INTRODUCTION
1. “The vigilant protection of constitutional freedoms is nowhere more vital than in
the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1960). This is
particularly true of public universities, where “[t]eachers and students must always remain free to
inquire, to study and to evaluate, to gain new maturity and understanding.” Sweezy v. New
Hampshire, 354 U.S. 234, 250 (1957). The United States Supreme Court has thus made clear
that “state colleges and universities are not enclaves immune from the sweep of the First
Amendment,” and that the freedoms of speech, assembly, and petition must be zealously guarded
as “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of
ideas.’” Healy v. James, 408 U.S. 169, 180 (1972). In the face of these bedrock principles,
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Western Michigan University (“WMU”) officials restrict speech on campus by limiting access to
campus facilities based on the anticipated content of speech and by assessing indeterminate
sliding-scale “security” fees that amount to a tax on controversy. WMU also enforces
unconstitutional “posting” policies and guidelines that eliminate spontaneous dissemination of
written communications on campus.
2. Plaintiffs Kalamazoo Peace Center, Jessica Clark, and Nola Wiersma
(collectively, “KPC”) are a student and community group and its co-directors at WMU who
sought in 2014 to host Boots Riley, noted musician, activist, and progressive labor advocate, to
present a keynote speech on ideas and tactics to advance social justice. WMU initially denied
KPC’s request to hold the event at Sangren Hall, located in the center of campus, and then
clarified that it would not allow the event at any campus venue. After KPC asked University
officials to reconsider their position, WMU decreed the event could take place on campus, but
only if KPC paid for the presence of police officers as “security” for the lecture. WMU imposed
this requirement and set the fee to pay the officer based solely on the speculative campus
reaction to Mr. Riley’s anticipated remarks. Rather than pay the arbitrary fee, for which it had
not budgeted in any case, KPC was forced to hold the event at a less desirable non-university
venue.
3. In addition, WMU requires that a university official approve any flyer advertising
an event, and forbids campus groups from posting any announcements until the activity has been
approved. The delay caused by Defendants’ professed security concerns meant that KPC could
not publicize the Riley event, further stifling KPC’s efforts to fulfill its mission of increasing
awareness of social justice.
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4. Accordingly, this is a civil rights action to protect and vindicate the First and
Fourteenth Amendment rights of KPC and all students at WMU. By policy and practice,
Defendants unlawfully restrict WMU students’ constitutional rights to free expression and have
acted in the past to restrict the Plaintiffs’ constitutional rights. WMU’s policies and enforcement
practices are challenged on their face and as applied to Plaintiffs Kalamazoo Peace Center,
Jessica Clark, and Nola Wiersma. This action seeks declaratory and injunctive relief, damages,
and attorneys’ fees.
II. JURISDICTION AND VENUE
5. This action arises under the United States Constitution, particularly the First and
Fourteenth Amendments, and the Civil Rights Act, 42 U.S.C. §§ 1983 and 1988.
6. This Court has original jurisdiction over these federal claims pursuant to
28 U.S.C. §§ 1331 and 1343.
7. The Court has authority to grant the requested declaratory judgment pursuant to
28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57, and to issue the requested
injunctive relief pursuant to 42 U.S.C. § 1983 and Federal Rule of Civil Procedure 65. The
Court is authorized to award attorneys’ fees and costs pursuant by 42 U.S.C. § 1988.
8. Venue is proper in the United States District Court for the Western District of
Michigan pursuant to 28 U.S.C. § 1391(b) because the events giving rise to the instant claim
occurred within this District and because at least one Defendant resides in this District.
III. PLAINTIFFS
9. Plaintiff Kalamazoo Peace Center is a non-profit organization and a Registered
Student Organization (“RSO”) at WMU. Although it is an independent organization, it is located
on the WMU campus in the Wesley Foundation, which is both an RSO and the campus affiliate
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of the United Methodist Church. KPC operates on a collaborative basis, in which WMU
students and non-student staff work together in a “collective” to fulfill KPC’s mission: educate
and empower students by providing knowledge, tools, and space needed to mobilize around
issues of justice and peace and for effecting positive change on campus and in the community.
KPC organizes lectures, film screenings, concerts, open forums, and other events to bring
together diverse ideas and provide a space for discourse and political development.
10. KPC is led by two co-directors, Jessica Clark and Nola Wiersma.
11. Jessica Clark coordinates events, oversees the capital campaign, develops new
projects, conducts research and maintains the Center’s website.
12. Nola Wiersma communicates and networks with collective members to advance
Peace Center projects and stage events.
IV. DEFENDANTS
13. Defendant John M. Dunn is the President of Western Michigan University. He is
WMU’s chief executive officer, responsible for WMU’s administration and policy-making, and
has ultimate authority to approve the policies and procedures challenged herein that were applied
to deprive Plaintiffs of their constitutional rights. Defendant Dunn acted under color of state law
and is sued for injunctive relief in his official capacity. Ex parte Young, 209 U.S. 123 (1908).
14. Defendant Laura M. Thomas is an Associate Registrar at Western Michigan
University. Defendant Thomas acted under color of state law and is sued in both her personal
and official capacities. Ex parte Young, 209 U.S. 123 (1908).
15. Defendant Jan Van Der Kley is Vice President for Business and Finance and
Treasurer for the Board of Trustees at Western Michigan University. Defendant Van Der Kley
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acted under color of state law and is sued in both her personal and official capacities. Ex parte
Young, 209 U.S. 123 (1908).
16. Defendant Robert J. Brown is the Director/Chief of the Department of Public
Safety at Western Michigan University. Defendant Brown acted under color of state law and is
sued for injunctive relief in his official capacity. Ex parte Young, 209 U.S. 123 (1908).
17. Defendant Blaine D. Kalafut is the Deputy Chief of the Department of Public
Safety at Western Michigan University. Defendant Kalafut acted under color of state law and is
sued in both his personal and official capacities. Ex parte Young, 209 U.S. 123 (1908).
18. Defendant Diane Anderson is the Vice President for Student Affairs and Dean of
Students at Western Michigan University. Defendant Anderson acted under color of state law
and is sued for injunctive relief in her official capacity. Ex parte Young, 209 U.S. 123 (1908).
V. STATEMENT OF FACTS
19. Kalamazoo Peace Center, like all RSOs at WMU, is governed by the RSO
Handbook (relevant sections attached as Exhibit A). The RSO Handbook establishes
procedures for using campus facilities for expressive events, as well as the conditions for such
use.
20. Organizations that qualify as RSOs are accorded certain privileges, including
access to funding and the ability to use campus facilities for scheduled events.
A. Defendants’ Application of the Room Reservation and Event Security Policies to Censor KPC’s 35th Annual Peace Week Keynote
21. Plaintiff Kalamazoo Peace Center engaged musician, activist, and progressive
labor advocate Boots Riley to give a keynote speech to celebrate its 35th Annual Peace Week,
scheduled for April 3, 2014. As a musician, Mr. Riley’s lyrics are characterized by literary
references that critique capitalism, exploitation, and police brutality.
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22. On March 3, 2014, the earliest possible date under the RSO Handbook Room
Reservation Policy, KPC member Ashlee Daraban submitted a room request to WMU’s
Registrar’s Office for the April 3 event using the Student Activities and Leadership Programs
(“SALP”) website reservation form. The request specified that the event was to be held April
3, 2014, from 6:00 to 9:00 p.m., for up to 200 attendees, and listed three preferred lecture halls
from which the Registrar was requested to assign for KPC’s use. KPC described the event by
stating: “The speaker, Boots Riley, will come to talk about issues related to class structure and
racism.”
23. Four days after the request was submitted, the Associate Registrar, Defendant
Thomas, requested that KPC provide Riley’s résumé and identify the university or venue
where he last spoke.
24. Daraban promptly provided additional information about Riley, a link to his
public speaking home page, and further informed the Registrar that Riley had previously
spoken at California State University Northridge, Concordia University in Montreal, and the
California Institute of Technology.
25. Defendant Thomas responded that, while the Registrar’s office appreciated
Daraban’s “promptness” in providing the additional information, the Registrar was “not able to
accommodate” KPC’s room reservation request “at this time.”
26. When Daraban sought clarification whether no rooms were available or only
that the rooms specified in the request were booked, Defendant Thomas responded on March
13 that “[t]he decision was made, in conjunction with public safety, that [WMU] will not
reserve a room on campus for this event.”
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27. Former KPC Director and Board Member Sasha Acker then called Defendant
Blaine Kalafut, WMU’s Deputy Chief of the Department of Public Safety, to inquire why the
Riley event could not be held on campus.
28. Defendant Kalafut responded that KPC could not have the event on campus
because Riley had previously caused a disturbance and his presence on campus had the
potential to create a dangerous situation.
29. Defendant Kalafut also stated that his Department ran background checks on
certain speakers invited to campus and had weekly meetings with the FBI, with which his
Department had a “great relationship.”
30. On information and belief, Defendant Kalafut told Defendant Thomas that Riley
could not appear on WMU’s campus because “he or people he is associated with” caused
trouble at the Miller Auditorium in the past.
31. Acker asked Defendant Kalafut to provide more details on Riley’s alleged
previous appearance at WMU and to explain the basis for his claim that Riley or an associate
had been involved in some kind of “incident.”
32. Defendant Kalafut responded by email on March 14 that, to his knowledge,
Riley had never been to WMU but that his Department had “to make sure we take any
necessary precaution to make sure our students and staff are safe.”
33. Although he acknowledged that Riley would not necessarily “cause any harm to
anyone on campus” Defendant Kalafut cautioned “some messages can be controversial,” and
that “we need to be proactive to make sure the event is safe for all.”
34. Despite having taken the position that the event could not take place, Defendant
Kalafut told Acker that he had requested additional information from Riley’s booking agent
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about “past University visits,” and that “more discussion will take place regarding this event”
after he received a response.
35. In response to Defendant Kalafut’s inquiry, Riley’s booking agent confirmed
that Riley had appeared previously at Cal Tech, California State Northridge, and Concordia
University. Defendant Kalafut then asked Riley’s booking agent to provide a police contact at
Cal Tech.
36. Defendant Kalafut told KPC that Defendant Jan Van Der Kley had instructed
the Registrar’s Office to deny KPC’s room request. Based on this information, Riley’s
booking agent asked Defendant Van Der Kley to explain why the room request was denied.
37. Defendant Van Der Kley denied having previous knowledge of a decision to
deny KPC’s room request.
38. Defendant Van Der Kley has “global oversight for facilities management, public
safety, human resources, contract administration and financial activities of the University,
including responsibility for the investment and management of endowments, planned gifts and
working capital.”
39. Daraban of KPC also met with Paul Terzino, Director of the Bernhard Center,
WMU’s student center, to see if the event could be held there as an alternate venue.
40. Terzino explained that Defendant Kalafut was conducting a background security
check on Riley, and that the response would determine how much security KPC would need
for its event. Terzino’s statement was the first time KPC was told that security would be
required, and that the Center would have to pay the $62/hour cost for it.
41. KPC had received funding for the Annual Peace Week keynote from the
Western Student Association, an organization that allocates funds to RSOs out of WMU
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student assessment fees. However, at the time it applied for funding, KPC had no idea security
requirements would be imposed, and had not budgeted for such unforeseen expenses.
42. Furthermore, paying for a police presence at an annual Peace Week event was
contrary to the KPC’s mission and values.
43. Unable to accede to WMU’s demand that it pay for a police officer to provide
security for the Boots Riley event, KPC was forced to hold the event at the Wesley Foundation.
44. Accordingly, Mr. Riley’s KPC 35th Annual Peace Week keynote was held on
April 3, 2014 in the Wesley Foundation basement. The location was smaller than, and
acoustically inferior to, lecture halls at WMU. The building also is not handicapped-
accessible, preventing an important segment of KPC’s constituency from attending the event.
45. In addition, because of WMU’s burdensome system for approving flyers, KPC
was not able to advertise the Boots Riley event until very close to the event date, as WMU will
not approve a flyer that does not include the place of the event.
46. Instead of having most of a month to advertise Mr. Riley’s appearance, KPC
had only days because of WMU’s initial refusal to allow the event, followed by its demand that
KPC pay for security.
47. KPC’s efforts to publicize its event were further delayed because different
locations on campus have different approval processes.
48. The KPC 35th Anniversary keynote was held without police presence. The
presentation and discussion took place without any type of disruption.
B. WMU’s Room Reservation Policy
49. RSOs may reserve campus facilities for their events by submitting a room
reservation form on the Student Activities and Leadership Programs (“SALP”) website.
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50. WMU makes classrooms and lecture halls with audiovisual capabilities
available to RSOs pursuant to this policy. Such facilities are assigned for RSO use on a “first-
come, first-served basis.”
51. Guidelines for RSOs posted on the SALP webpage provide that “[m]ost
academic lecture halls with audiovisual capabilities may be reserved no more than one month
in advance to provide opportunities for all organizations to utilize these spaces.” The
guidelines impose no other preconditions for scheduling facilities by RSOs.
52. The facilities reservation form for RSOs does not request any information
related to potential security issues. Nor does it suggest that facility use may be denied for any
reason other than availability during the time requested.
C. WMU’s Event Security Policy
53. A section of the RSO Handbook relating to event planning addresses security.
The Event Security Policy states that RSOs “may need to request security services” for events,
but does not set forth any criteria for an RSO to determine when security services “may” be
“needed.” Nor does the Event Security Policy indicate that WMU may decide unilaterally that
security is necessary or impose any restrictions on WMU as to when it can insist upon security
services for an RSO event.
54. WMU’s Event Security Policy consists of a single paragraph in the RSO
Handbook stating:
RSOs may need to request security services from the WMU Department of Public Safety for a particular event. Generally, these services must be requested a minimum of ten (10) days prior to the planned event. Moreover, these services must be paid for in advance by cash, certified check, money order, or by a campus financial transaction. The WMU Department of Public Safety staff makes the final decision on the number of officers needed for each scheduled event to maintain campus safety and security.
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55. Although requests for security services must be made at least 10 days before a
planned event, the Event Security Policy does not impose any deadlines for WMU to inform
RSOs whether security services will be required. When WMU makes a decision to impose a
security requirement unilaterally, no provision of the policy requires that it be decided
sufficiently in advance of an event in order for the RSO to satisfy the 10-day requirement, to
budget for security fees, or to dispute whether security services are even necessary.
56. The Event Security Policy requires fees for security services to be paid in
advance, but does not specify any criteria or formula for determining how much the fee should
be for any given event. The policy states only that the WMU Department of Public Safety
shall determine the number of officers required for each event. No specific charge per officer
is stated, nor are any criteria established for determining the number of officers that may be
required.
57. The Event Security Policy does not provide any avenue to appeal a decision that
security services are required or the amount to be charged, stating that the WMU Department
of Public Safety shall make a “final decision” in the first instance.
58. WMU’s Deputy Chief of the Department of Public Safety, Defendant Blaine
Kalafut, has stated that whether to require “security” at RSO on-campus events is determined
“case-by-case.”
59. Defendant Kalafut has further stated that the WMU Department of Public
Safety’s “case-by-case” determinations are made based on the history of a speaker or
performer and possible disruptions during the presentation or performance.
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60. Defendant Kalafut has explained that security requirements are imposed for
speakers when they are “controversial,” and have “a message” or “a political stand” to which
“there are dissenting views.”
61. On information and belief, Defendant Kalafut did not want Boots Riley
appearing at WMU because of Riley’s association with the “Occupy Movement” in 2011 and
2012, a famously decentralized form of protest.
62. In August 2012, KPC hosted the Occupy National Gathering at the Wesley
Foundation, located on the WMU campus, over the objection of the Defendants.
63. On information and belief, although Boots Riley participated in activities
associated with the “Occupy Movement” in 2011 and 2012, he did so in Oakland, California,
more than 2,250 miles away from Kalamazoo, Michigan.
D. The Ongoing Impact of WMU’s Room Reservation and Event Security Policies on Plaintiffs
64. Plaintiffs wish to engage in expressive activities similar to Mr. Riley’s keynote
speech in the future, without having to pay “security” fees.
65. Plaintiffs fear Defendants will continue to apply their Room Reservation and
Event Security policies in ways that impede future KPC events.
66. As interpreted and enforced by the Defendants, WMU’s Room Reservation and
Event Security policies afford administrators unbridled discretion, enable them to restrict
access to WMU property, and to impose arbitrary fees, without any specific parameters for
whether to set fees, or in what amount(s).
67. The fees WMU imposes under its Event Security Policy are content-based.
They are predicated on a standardless assessment of whether a given speaker is likely to be
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“controversial” or to draw “dissent,” and on the anticipated reaction to the speaker’s
presentation.
68. Given the arbitrary nature of the Event Security Policy, KPC can effectively
avoid uncertainty over whether it has sufficient funds for an event only by inviting speakers or
performers who are not “controversial” or who will not trigger “dissenting views.”
69. Defendants’ policies and actions create a hostile atmosphere for free expression
on campus, chilling the speech of other WMU RSOs, as well as students, who are not before
the Court.
E. Western Michigan University’s Posting Policies
70. The RSO Handbook also sets forth “Flyer/Poster Posting Guidelines” that
restrict how RSOs and students may post literature on the WMU campus.
71. The Flyer/Poster Guidelines state that “[w]hile WMU promotes freedom of
expression, [it] also affirms civility” and “expects that poster … content will conform to estab-
lished requirements and generally accepted standards of good taste.” The terms “civility” and
“good taste” are not defined. WMU also explicitly “reserves the right to control conditions of
time, place, and manner under which posters and literature are distributed.”
72. Under the Flyer/Poster Guidelines, SALP must approve all postings, and they
must be placed on approved bulletin boards provided by the University.
73. Any RSO wishing to post flyers or posters must submit the proposed flyer or
poster to SALP at least seven business days before the event that the flyer or poster promotes.
The Guidelines state that the SALP approval process may take two full business days.
74. Under these Guidelines, flyers and posters for impromptu expression or
impromptu expressive activities may not be posted because there is no mechanism for
immediate approval.
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75. All postings must contain the full name of the sponsoring organization, and the
date, time, and event location. Programs or projects sponsored in whole or part by student
activities funds must include the statement “SAF Funded” on all postings about those programs
or projects.
76. SALP stamps all flyers and posters “Approved” before they can be posted.
Material without an approved stamp is removed and the offending student group is charged for
removal costs.
77. Furthermore, additional steps are required to post flyers at buildings with high
numbers of visitors.
78. If a RSO would like to advertise an event at the Bernhard Center, SALP must
approve the flyer and then the students must take copies to Student Activities and Leadership
Programs Office.
79. Any signs to be posted in the Student Recreation Center (“SRC”) must first be
approved by SALP but then taken to University Recreation. No more than 12 flyers may be
submitted for posting.
80. Only Residence Life personnel may post flyers on the bulletin boards in
residence hall corridors once they have been stamped “Approved” by the Office of Residence
Life. No postings are permitted on any residence hall walls, windows or other non-bulletin
board surfaces in public areas, nor may postings be slid under room doors unless authorized by
Residence Life.
81. Violations of the RSO Handbook, including of its Flyer/Poster Guidelines, are
subject to sanctions, up to and including loss of RSO privileges or loss of RSO recognition, as
well as potential further “discretionary sanctions.”
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82. As with all rules and policies set forth in the RSO Handbook, WMU reserves
authority to make “[r]easonable changes … without notice” to the Flyer/Poster Guidelines.
VI. CAUSES OF ACTION
COUNT I
As-Applied Violation of Plaintiffs’ Rights to Free Speech Under the First and Fourteenth Amendments (42 U.S.C. § 1983) – Room Reservation Policy
(Defendants Van Der Kley, Kalafut, and Thomas)
83. Plaintiffs repeat and reallege each of the foregoing allegations in this
Complaint.
84. The First and Fourteenth Amendments extend to campuses of state colleges and
universities. Healy v. James, 408 U.S. at 180.
85. Although RSOs at WMU are allowed to schedule the use of campus facilities
with audiovisual capabilities for on-campus events, Defendant Laura Thomas initially told
KPC that its request for space for its 35th Annual Peace Week keynote was being denied.
86. The RSO Handbook provides that such space is to be made available on a first
come-first served basis and does not authorize WMU officials to deny space based on other
considerations.
87. Defendant Thomas required KPC to provide additional information about the
proposed event beyond what is specified in the official reservation request forms, including
Mr. Riley’s résumé and a listing of the universities where he last appeared recently. After KPC
promptly provided this information, Defendant Thomas informed Plaintiffs that the Registrar
was “not able to accommodate” KPC’s room reservation request. When asked for an explana-
tion, Defendant Thomas said that “[t]he decision was made, in conjunction with public safety,
that [WMU] will not reserve a room on campus for this event.”
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88. Defendant Kalafut contacted Boots Riley’s booking agent and requested
information about Riley’s earlier campus appearances, even asking that the agent give him the
number for the campus police at the University of California (Northridge).
89. Defendant Kalafut also told KPC that once he received the information from
Riley’s booking agent, “more discussion will take place regarding this event.”
90. On information and belief, Defendant Kalafut implemented the decision on
whether to allow Riley to appear at a WMU facility.
91. Defendant Van Der Kley is responsible for setting WMU’s security policies and
overseeing the campus public safety department. Defendant Kalafut stated that Defendant Van
Der Kley made the decision to deny KPC a room reservation.
92. Defendants’ initial decision to deny KPC lecture hall space for its 35th Annual
Peace Week keynote rested entirely on anticipated reaction to Boots Riley’s appearance and
was impermissibly content-based. Healy, 408 U.S. at 185-86 (government cannot deny rights
and privileges “solely because of a citizen’s association with an unpopular organization”).
93. Defendants Van Der Kley, Kalafut, and Thomas violated a clearly established
constitutional right of which all reasonable college administrators and staff should have known,
rendering them liable to Plaintiff under 42 U.S.C. § 1983.
94. The denial of constitutional rights is irreparable injury per se, and Plaintiffs are
entitled to declaratory and injunctive relief.
COUNT II
As-Applied Violation of Plaintiffs’ Rights to Free Speech Under the First and Fourteenth Amendments (42 U.S.C. § 1983) – Event Security Policy
(Defendants Van Der Kley, and Kalafut)
95. Plaintiffs repeat and reallege each of the foregoing allegations in this
Complaint.
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96. Regulations requiring a permit and fee before authorizing public speaking are
prior restraints on speech that are presumptively unconstitutional. Forsyth Cnty., Ga. v.
Nationalist Movement, 505 U.S. 123, 130 (1992).
97. Such fees cannot be based on the level of hostility government officials imagine
may be engendered by speech, or on the anticipated listeners’ reaction to the speech. Id. at
134-35. Regulations requiring permits and/or imposing fees are impermissibly content-based
if they permit a determination of fee amount grounded on such factors, even if the amount is
tied to the predicted administrative expense or the cost of maintaining public order. Surita v.
Hyde, 655 F.3d 860, 876 (7th Cir. 2011) (citing Forsyth Cnty.).
98. Any ordinance that imposes a fee upon the exercise of First Amendment rights
must be content-neutral, strictly limited to recouping actual administrative costs, and bounded
by narrowly drawn, reasonable and definite standards.
99. Defendant Kalafut has stated that whether to require “security” at RSO on-
campus events is determined “case-by-case” based on whether speakers are expected to be
“controversial,” or to convey “a message” or “a political stand” to which “there are dissenting
views.”
100. Defendant Van Der Kley oversees the Public Safety Department at WMU that is
charged with implementation and enforcement of the Event Security Policy challenged herein.
Defendant Van Der Kley made the decision to deny KPC room access based on the security
policy.
101. Defendants’ application of the RSO Handbook’s Event Security Policy to Plain-
tiffs to require the payment of $186 in security fees, based on a supposed need for a security
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officer at the keynote, rested entirely on anticipated reaction to Boots Riley’s appearance, and
was thus impermissibly content-based.
102. WMU’s policy flaunts long-standing Supreme Court precedent holding that
such fees, if lawful at all, cannot “depend on the administrator’s measure of the amount of
hostility likely to be created by the speech based on its content.” Forsyth Cnty., 505 U.S. at
134. “Listeners’ reaction to speech is not a content-neutral basis for regulation” and “cannot
be financially burdened, any more than it can be punished or banned, simply because it might
offend a hostile mob.” Id. at 134-35. These principles plainly apply to scholastic settings.
E.g., Glowacki ex rel. D.K.G. v. Howell Pub. Sch. Dist., No. 2:11–cv–15481, 2013 WL
3148272, at *7 (E.D. Mich. June 19, 2013).
103. Defendants followed no discernible criteria in determining whether security was
necessary for KPC’s event, and set the amount of the fee through the exercise of unbridled
discretion.
104. KPC was given no opportunity to challenge either Defendants’ conclusion that
security was necessary for the Boots Riley keynote event or that the amount of the fee was
arbitrary and excessive.
105. By imposing speaker- and content-based fees as a condition to allowing KPC to
use a WMU lecture hall for the 35th Annual Peace Week keynote speech, Defendants violated
Plaintiffs’ rights to free expression.
106. Defendants Van Der Kley and Kalafut violated a clearly established constitu-
tional right of which all reasonable college administrators and staff should have known,
rendering them liable to Plaintiff under 42 U.S.C. § 1983.
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107. The denial of constitutional rights is irreparable injury per se, and Plaintiffs are
entitled to declaratory and injunctive relief. Additionally, Plaintiffs Clark and Wiersma
experienced emotional injury as a consequence of being denied their First Amendment rights.
108. Plaintiff is entitled to a declaration that Defendants violated their First Amend-
ment rights. Additionally, they are entitled to damages in an amount to be determined by the
evidence and this Court, and the reasonable costs of this lawsuit, including reasonable
attorneys’ fees.
COUNT III
Facial Challenge to Violation of Right to Free Speech Under the Plaintiffs’ First and Fourteenth Amendment Rights (42 U.S.C. § 1983) – Event Security Policy
(Defendants Dunn, Brown, Van Der Kley, and Kalafut)
109. Plaintiffs repeat and reallege each of the foregoing allegations in this
Complaint.
110. WMU’s Event Security Policy imposes a presumptively invalid prior restraint
on speech. Forsyth Cnty., 505 U.S. at 130; McGlone v. Bell, 681 F.3d 718, 733 (6th Cir.
2012).
111. Regulations that grant an administrative body or government official unfettered
discretion to regulate the licensing of activities protected by the First Amendment are
unconstitutional. Kunz v. New York, 340 U.S. 290, 294 (1951). Such unrestricted discretion
increases the likelihood that the government official may discriminate based upon the content
of the “speech” or the viewpoint of the speaker. City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750, 763-64 (1988).
112. WMU’s Event Security Policy gives its Department of Public Safety and
Registrar unfettered discretion to determine when “RSOs may need to request security
services” in order to secure on-campus space to hold events that feature or include expressive
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activity. This empowers public officials to administer the policy on the basis of impermissible
factors or through arbitrary application.
113. WMU’s Event Security Policy gives its Department of Public Safety unfettered
discretion to determine the amount of “security” fees that RSOs must pay in order to secure on-
campus space to hold events that feature or include expressive activity. This enables public
officials to impose an arbitrary tax on controversy.
114. WMU’s Event Security Policy governing expression is unconstitutionally
overbroad, does not serve a significant governmental interest, is not narrowly drawn, and
impermissibly restricts student expression. It burdens far more speech than is necessary to
serve the asserted interest of maintaining campus safety and security.
115. WMU’s Event Security Policy restricting speech fails to provide notice of the
obligations that the policy creates, and is unconstitutionally vague on its face in violation of the
First Amendment and of the due process guarantee of the Fourteenth Amendment to the U.S.
Constitution.
116. Under WMU’s policy Defendant Kalafut determines “case-by-case” whether to
impose security requirements based on his assessment of a particular speaker or performer.
Security requirements are imposed for speakers considered to be “controversial,” that have “a
message” or “a political stand,” and to whom “there are dissenting views.”
117. Defendant Brown oversees implementation and enforcement of the Event
Security Policy challenged herein.
118. Defendant Van Der Kley oversees the Department of Public Safety that
implements and enforces the Event Security Policy challenged herein.
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119. Defendant Dunn is responsible for WMU’s administration and policy-making,
and has ultimate authority to approve the Event Security Policy challenged herein.
120. As a direct result of the Defendants’ Event Security Policy, RSOs and students
at WMU are deprived of their right to free speech under the First and Fourteenth Amendments
to the Constitution.
121. As a legal consequence of the Defendants’ violation of Plaintiffs’ and other
similarly situated RSOs’ First and Fourteenth Amendment rights, as alleged above, and of
WMU students, all of which is irreparable injury per se, Plaintiffs are entitled to declaratory
and injunctive relief, damages, and the reasonable costs of this lawsuit, including reasonable
attorneys’ fees.
COUNT IV
Facial Challenge to Violation of Right to Free Speech Under the Plaintiffs’ First and Fourteenth Amendment Rights (42 U.S.C. § 1983) – Flyer/Poster Guidelines
(Defendants Dunn and Anderson)
122. Plaintiffs repeat and reallege each of the foregoing allegations in this
Complaint.
123. Students have a First Amendment right to engage in expressive activities and to
distribute written materials in public areas of a state university without obtaining advance
permission from government officials. Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981);
Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667 (1973).
124. Advance notice and permitting requirements significantly burden freedom of
speech. WMU’s Posting guidelines and policies impose a presumptively invalid prior restraint
on speech. Forsyth Cnty., 505 U.S. at 130; McGlone v. Bell, 681 F.3d 718, 733 (6th Cir.
2012).
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125. Any such permitting requirement violates the First Amendment unless it
contains narrow, objective, and definite standards to guide the licensing authority.
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969).
126. Restrictions on expressive activity are void for vagueness if their terms are not
clearly defined such that a person of ordinary intelligence can readily identify the standards to
be applied. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
127. WMU’s Flyer/Poster Guidelines and policies impose a prior restraint. Posters
are restricted to approved bulletin boards in academic and general buildings, but they may not
be placed there without SALP approval and an “Approved” stamp on the poster.
128. WMU’s Flyer/Poster Guidelines and policies unconstitutionally prohibit RSOs
and students from engaging in spontaneous postings and/or promoting impromptu expressive
events due to the requirement to seek permission for posting from SALP at least seven days in
advance and to allot additional time for necessary university approval – two days for SALP and
an undefined period for the Office of Residential Life.
129. WMU’s Flyer/Poster Guidelines are vague insofar as their requirements that
posters must “conform to requirements of generally accepted standards of good taste” without
defining those standards.
130. WMU’s Flyer/Poster Guidelines lack criteria to guide SALP’s decisions
whether to approve posters and gives SALP the authority to deny approval for failure of
posters to comport with an undefined “civility” requirement.
131. The prior restraints of the WMU Flyer/Poster Guidelines also apply to signs to
be posted in campus residence halls, which the Office of Residence Life must approve and
post. The policies also limit alternative channels of communication such as sliding flyers
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under residence hall room doors and/or posting in common areas other than corridor bulletin
boards.
132. Defendant Dunn is responsible for WMU’s administration and policy-making,
and has ultimate authority to approve the Flyer/Poster Guidelines challenged herein.
133. Defendant Anderson oversees implementation and enforcement of the
Flyer/Poster Guidelines challenged herein.
134. As a direct result of the Defendants’ Flyer/Poster Guidelines, RSOs and
students at WMU are deprived of their right to free speech under the First and Fourteenth
Amendments to the Constitution.
135. Violation of Plaintiffs’ First and Fourteenth Amendment rights is irreparable
injury per se. Consequently, Plaintiffs are entitled to declaratory and injunctive relief, and the
reasonable costs of this lawsuit, including reasonable attorneys’ fees.
COUNT V
Declaratory Judgment and Injunction (28 U.S.C. § 2201, et seq.)
136. Plaintiffs repeat and reallege each of the foregoing allegations in this
Complaint.
137. An actual controversy has arisen and now exists between Plaintiffs and
Defendants concerning Plaintiffs’ rights under the United States Constitution. A judicial decla-
ration is necessary and appropriate at this time as to Counts I through IV above.
138. Plaintiffs desire a judicial determination of their rights against Defendants as
they pertain to Plaintiffs’ right to speak without being subjected to content-based facilities
access requirements, Event Security policies, and/or Flyer/Poster Guidelines that impose prior
restraints on speech, give school officials unfettered discretion whether to allow expression and
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under what conditions, and that are vague, overbroad, and not narrowly tailored to serve a
substantial governmental interest.
139. To prevent further violation of Plaintiffs’ constitutional rights by Defendants, it
is appropriate and proper that a declaratory judgment issue, pursuant to 28 U.S.C. § 2201 and
Fed. R. Civ. P. 57, declaring WMU’s Event Security policies and Flyer/Poster Guidelines
unconstitutional.
140. Pursuant to 28 U.S.C. § 2202 and Fed. R. Civ. P. 65, this Court should issue a
permanent injunction prohibiting the Defendants from enforcing their restrictions on Plaintiffs’
expressive activities to the extent they are unconstitutional, to prevent the ongoing violation of
Plaintiffs’ constitutional rights. Plaintiffs and their fellow RSOs, and WMU students, are
suffering irreparable harm from continued enforcement of WMU’s unconstitutional policies,
monetary damages are inadequate to remedy their harm, and the balance of equities and public
interest both favor a grant of injunctive relief.
VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Kalamazoo Peace Center, Jessica Clark and Nola Wiersma
respectfully requests that the Court enter judgment against Defendants and provide Plaintiffs the
following relief:
A. A declaratory judgment stating that Defendants’ Events Security policy and
Flyer/Poster Guidelines, facially and as-applied to Plaintiffs, and the Room Reservation Policy
as-applied to Plaintiffs, are unconstitutional facially and as-applied, and that they violate
Plaintiffs’ rights as guaranteed under the First and Fourteenth Amendments to the United States
Constitution;
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B. A permanent injunction restraining enforcement of Defendants’ unconstitutional
Events Security policy and Flyer/Poster Guidelines and their underlying enforcement practices,
and of Defendants’ unconstitutional enforcement of their Room Reservation Policy;
C. A declaratory judgment that Defendants’ censorship of Plaintiffs’ expressive
activity violated their First and Fourteenth Amendment rights;
D. Monetary damages in an amount to be determined by the Court to compensate
Plaintiffs for the impact of a deprivation of fundamental rights;
E. Plaintiffs’ reasonable costs and expenses of this action, including attorneys’ fees,
in accordance with 42 U.S.C. § 1988, and other applicable law; and
F. All other further relief to which Plaintiffs may be entitled.
VIII. DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury of all issues properly triable by jury in this action.
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DATED: October 20, 2014
Respectfully submitted,
ROBERT CORN-REVERE
(motion for admission pending) [email protected]
RONALD G. LONDON [email protected]
LISA B. ZYCHERMAN [email protected]
DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Suite 800 Washington, DC 20006 Telephone: (202) 973-4200
By: /s/ Matthew J. Hoffer BRADLEY SHAFER
[email protected] MATTHEW J. HOFFER
[email protected] SHAFER & ASSOCIATES, P.C. 3800 Capital City Blvd, #2 Lansing, MI 48906-2110 Telephone: (517) 886-6560 Attorneys for Plaintiffs Kalamazoo Peace Center, Jessica Clark, and Nola Wiersma
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EXHIBIT A
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RSO HANDBOOK 2014 – 2015
GENERAL DISCLAIMER Reasonable changes may be made to this document without notice.
Information describing any changes will be made available.
Published by Student Activities and Leadership Programs, Division of Student Affairs, Western Michigan University. Revised for the 2014-2015 academic year.
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POSITION IN WESTERN STUDENT ASSOCIATION Every organization has the option to participate in campus issues via the Western Student Association (WSA). All organizations are granted one position in the WSA Senate. See the WSA website for more information: www.westernstudentassociation.org.
MEDIATION AND CONFLICT RESOLUTION SERVICES Periodically, RSOs have an internal issue that may need mediation from an unbiased, outside entity. SALP has trained professionals who can assist an organization in achieving a resolution diplomatically. However, SALP will not intervene unless asked by all parties to enter as a mediator. To set up a meeting please contact the RSO Advisor at [email protected].
ROOM RESERVATIONS
ACADEMIC BUILDINGS Academic buildings may be available for use by organizations on a first-come, first-served basis. Reservation policies and procedures may vary depending on the individual building. For more information on how to reserve space in academic buildings, please go to http://www.wmich.edu/activities/roomrequest.html.
BERNHARD CENTER
There are 23 meeting rooms available for conferences, banquets, and meetings for all Registered Student Organizations (RSOs), University departments, professional organizations and the community. Specific policies and procedures on how to reserve a room in the Bernhard Center can be found here http://www.wmich.edu/studentcenter/policies/rso.html.
KIVA ROOM The Kiva Room is an all-purpose meeting room in the lower level of the Faunce Student Services Building. All RSOs will be charged for any cleaning costs incurred during their time spent in the Kiva Room. Reservation requests are made online at http://www.wmich.edu/activities/roomrequest.html. MULTICULTURAL CENTER The Multicultural Center (MCC) at Western Michigan University provides the University student population with spaces for study, meetings, projects, and conversation. The MCC is located in the Adrian Trimpe Building on campus. For reservations, see the Office of Diversity Inclusion website at http://www.wmich.edu/diversityandinclusion/mcc. RESIDENCE HALLS Residence hall spaces are not open to the public. Lounge and meeting room space is intended for use by residents of the hall only. Resident requests for space are fielded by Hall Directors.
Residents can host a group/organizational meeting in the halls, but not on a regular basis. If the event the resident is hosting is a recruitment meeting, the HD should review posting and soliciting policies with the resident.
Internal (created by residence hall students) faith-based study groups that meet on a weekly basis can be approved.
For more questions about this policy, please contact Laura Darrah, Assistant Director of Residence Life at [email protected] or (269) 387-4463.
RESERVING OUTDOOR SPACE Reserving outdoor space is done through the Bernhard Center main office and the procedures on how to reserve outdoor space can be found at http://www.wmich.edu/activities/outdoor.html. For a list of policies regarding the use of outdoor space, please see page 14 of this handbook.
OUTDOOR SPACE LOCATIONS
Goldsworth Valley Pond (Gazebo included)
The Fountain Plaza (Approval from Miller, Dalton, and Shaw staff may be requested)
The Pavilion
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POLICIES & PROCEDURES
A student who chooses to enroll at Western Michigan University assumes the obligation for conduct that is compatible with the University’s mission as an educational institution. While students have the privilege to enroll at the institution of their choice, choosing to enroll at Western Michigan University requires a student to become aware of, and abide by, the behavior standards of the University. Ignorance of acceptable boundaries of student behavior as contained in the RSO Handbook and/or Student Code is not a basis for excusing inappropriate behavior. SALP has the official role of recognizing student organizations at WMU. Members of RSOs must adhere to all current University and SALP policies and procedures and all those developed in the future.
ADVERTISING POLICIES CHALKING POLICY
For WMU purposes, “chalking” is defined as a temporary and nondestructive activity on most outdoor horizontal surfaces. Additional guidelines are cited below:
1. Use only “environmentally friendly” (nontoxic) hand-held stick chalk. No spray chalk is permitted. 2. The RSO’s name must appear within all chalk messages. 3. Chalk must not leave a color residue after general exposure to the natural elements (i.e., rain, snow, etc.). 4. Chalking must be at least 20 feet away from entrances and exits of all buildings in order to protect carpeting. 5. Chalking must be limited to horizontal surfaces (mainly sidewalks) where the natural elements have full exposure. No chalking in tunneled areas, under tents, on buildings, under building overhangs, etc. is permitted. 6. Chalking is not permitted on any vertical surfaces, steps, buildings, sculptures, etc. 7. Violators will be subject to full restitution in accordance with the Student Code, Article IV, Section B, 17 (“Unauthorized use/destruction/defacing of property”).
ROCK PAINTING POLICY The rocks between Goldsworth Valley Pond and Gilkison Avenue have been designated for painting by Registered Student Organizations on campus. No other painting of any sort is permitted on any University property. Violators will be subject to full restitution in accordance with the Student Code Article IV, Section B, 17(“Unauthorized use/destruction/defacing of property”). Guidelines for painting the rocks:
1. Painting the rocks is on a first-come, first-use basis. All organizations have equal access to the rocks.
2. Clubs and organizations may not cover or “guard” the rocks after painting them and thus may not prevent other organizations from painting over their work.
FLYER/POSTER POSTING GUIDELINES
Organizations may post or distribute literature on University property. However, the University expects that poster and literature content will conform to established requirements and generally accepted standards of good taste. The specific content of posters and literature will be the responsibility of the person or organization submitting posters or literature for distribution. The person or organization will be expected to assume all responsibility for poster content and to hold Western Michigan University harmless from any and all
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liability that may arise as a result of any posting or distribution. This pertains to all damages, costs, attorney fees and discovery costs that may result from any legal action. While WMU promotes freedom of expression, the University also affirms civility and, at its discretion, reserves the right to control conditions of time, place, and manner under which posters and literature are distributed. Publications must comply with the regulations listed below:
CAMPUS POSTING: GENERAL PROVISIONS
1. Posters or flyers must not exceed 14” by 22.”
2. To post flyers on approved bulletin boards in the academic buildings and general buildings, flyers must be approved by Student Activities and Leadership Programs (SALP) Office. If the material is not stamped for posting, the material will be removed and restitution for the cost of labor will be charged to the organization.
3. Postings are not permitted on any trees, buildings, walls, doors, windows, telephone poles, wires, fire hydrants, parking meters, trashcans, cars or public signs on campus. All violators will be charged full restitution for the cost to remove such literature from the unwarranted areas.
4. The Kiosks located outdoors around campus are the only areas for unapproved postings. These are the ONLY public posting locations on WMU’s campus.
5. The literature must contain the full name of the sponsoring organization, date, time, and event location.
6. All literature must be received by the SALP office AT LEAST (7) SEVEN BUSINESS DAYS prior to the event/program taking place.
7. The Posting Guidelines Form is to be completed by the student organization/department representative requesting the flyer to be approved.
8. If not approved, the organization/department will be contacted in an effort to approve the literature.
9. Please allow (2) TWO BUSINESS DAYS for the approval process to take place.
10. Programs or projects sponsored in whole or part by the Student Assessment Fee must include the statement “SAF Funded” on all publicity documents. Failure to do this may result in subsequent loss of funding.
11. It is prohibited to post literature over other validly placed flyers or posters.
12. Postings may be tacked or stapled on bulletin boards or taped on kiosks. Other methods of affixing postings or types of adhesives are not permitted.
BERNHARD CENTER (BC) Signs to be posted in the Bernhard Center must first be approved by SALP. Copies of the posting should be delivered to the Student Activities and Leadership Programs Office. STUDENT RECREATION CENTER (SRC) Signs to be posted in the Student Recreation Center must be approved by SALP prior to being submitted to University Recreation. A maximum of 12 copies of promotional materials may be submitted for posting. The SRC also has a display case available for a weekly fee of $5. For more information, please contact Cindy VanderWoude at (269) 387-3115.
RESIDENCE HALL POSTING GUIDELINES Organizations wishing to advertise in the residence halls must have all flyers stamped “Approved” by the Office of Residence Life. An original flyer should be brought to the Residence Life office, located in Faunce Student Services Building, to be approved for distribution. Copies of approved flyers are to be returned to the Office of Residence Life, and Residence Life staff will post them in the halls.
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APPENDIX D: EVENT PLANNING
PRE-PLANNING
QUESTIONS TO CONSIDER:
Does a contract need to be signed for anything associated with this event?
If event is held in the community, how will this activity affect the neighborhood?
What liability does the organization run the risk of incurring?
What state laws or city ordinances have the potential of being violated?
What safeguards will be used to keep these laws from being violated?
If using officers/security, how will they maintain control over the activity?
What will the officers/security do if this activity gets out of hand?
List the possible problem situations that could present themselves at your activity.
List how you will solve each of the situations listed above.
Do you have an established procedure to follow in case of emergencies?
Could you convince a reasonably prudent person that your event is not dangerous?
Is the potential liability for the organization worth the potential benefits to the organization?
Has this activity been reviewed with your organization advisor?
CHECKLIST Assess organization’s interest in the event or activity Answer basic questions Follow these steps:
Identify needs
Develop program goals and objectives
Develop an action plan
Implement that action plan
Evaluate that event
Document for the future
EVENT CHECKLIST
FUNDING AND PAYMENT Make a budget Identify potential funding sources/allocating bodies Contact RSO Financial Advisor for assistance with paperwork, including contracts Determine paperwork deadlines in advance and plan accordingly
TRANSPORTATION AND LODGING Connect with agent/artist/for arrival/transportation information Transportation rental Hotel confirmation
PROMOTIONAL CONSIDERATIONS Complete marketing plan Get advertising materials approved and distributed Use campus media and advertising sources: WIDR 89.1 FM, EduCABLE, MTV U, Western Herald, Student Events Calendar
VENUE/EVENT SPACE Check with venue about reservation/set up/catering (if needed) Contact SALP for outdoor space reservations Check on any special requirements (security, stage, room set-up, etc.) Technical issues
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Notify SALP if attendance will be larger than 100 VOLUNTEERS
Setup/Tear Down/Clean Up Greeters/Tickets/Counters On- Stage/Sound Help/Announcements
EVENT SECURITY
RSOs may need to request security services from the WMU Department of Public Safety for a particular event. Generally, these services must be requested a minimum of ten (10) days prior to the planned event. Moreover, these services must be paid for in advance by cash, certified check, money order, or by a campus financial transaction. The WMU Department of Public Safety staff makes the final decision on the number of officers needed for each scheduled event to maintain campus safety and security. Call (269) 387-5573 for details.
EVENT CAMPUS MEDIA & INFORMATION SOURCES
89.1 WIDR-FM 89.1 WIDR-FM is Western Michigan University’s student-operated radio station and an excellent avenue for marketing an event and organization. WIDR is located at 1501 Faunce and staff can be reached at (269) 387-6301. Press releases can be sent to [email protected].
WESTERN HERALD
The Western Herald is Western Michigan University’s student-operated newspaper. Student organizations can purchase ads and sometimes gain free coverage or publicity of an event by notifying the Herald staff in advance. The Western Herald is located at 1517 Faunce and staff can be reached at (269) 387-2092.
WMU NEWS
Western Michigan University’s faculty and staff newspaper is available to publicize campus-wide events. WMU News is located in Walwood Hall and can be reached at (269) 387-8400.
EduCABLE
EduCABLE is the campus cable system. RSOs can promote their events by posting a message on this EduCABLE channel. There is NO CHARGE for this service. Call (269) 387-4997 for more information or download an announcement form from our website at: http://www.wmich.edu/it/facstaff/educable.html.
MTV U MTV U, formerly known as CTN (College Television Network), Channel 35 is a music video and bulletin board system that is available to student organizations that want to post dates and times of programs for all students. This channel is monitored by the Student Recreation Center. For more information on posting to MTV U, please contact Cindy at (269) 387-3115.
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